What are natural rights and where do they come from?
Natural rights are those which appertain to man in the right of his existence. Natural rights include all the intellectual rights, or rights of the mind, religion and also all those rights of acting as an individual for his own comfort and happiness, which do not deprive others of their rights (DeHart 224). A man by natural right is free to judge in his own cause, and so far as the right of mind is concerned, he never surrenders it. Natural rights can either come from people; in the sense that certain people give us our rights, or from a source other than people. Fuerle (153) noted that natural rights are deductively derived.
Natural rights come from acts of human will, and the power that establishes these legal rights is the sovereign. In a thoroughgoing positivistic framework, the unconstrained will of the sovereign is the generator of rights (DeHart, 224). Natural rights can be divided into rights that a person has simply because of what he/she is and rights that a person has only because he/she has taken action to acquire those rights (Fuerle 154). Ones natural rights are not those one would have if one were not living in society. Ones natural rights are those that have not been socially conferred on one- and cannot be considered as those that one would have if they were not socially conferred on one. In identifying certain rights of a member of the social order as natural rights, one is not engaged in the impossible project of imagining this entity as a purely natural, asocial being.
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Who are the major philosophers where natural rights are concerned?
John Locke is one of the major philosophers where natural rights are concerned. Locke developed a doctrine of natural rights that recognized these rights as part of mans pre-social/political condition; principal among these rights were the rights to life, liberty and property (Whiting 128). In his work, Locke advocates a revolutionary theory of popular sovereignty, constitutional limitations, and individual rights. In making this argument, he ties his theory to the principles of natural law and natural rights as discerned by human reason, maintaining that human beings are born naturally possessing rights by virtue of their relationship with nature.
Thomas Hobbes is another philosopher who was close to natural rights. This is because Hobbes moral theory can be characterized as one of natural law; however, he also argues that there is no substantive theory of natural rights in the theory. Whiting (130) notes that Hobbes theory of rights owes much to that of Hugo Grotiuss theory of natural law and natural rights and that it follows a particular strain of that theory. Rousseau is a major philosopher when natural rights are concerned. This is because, according to Williams (106), Rousseau retains a standard of natural right throughout his writings, though it had a limited role. Rousseau also cites two natural rights derived as the right of the first occupant and the right of the strongest.
How are natural rights shaped for membership in civil society?
Civil society acts as a necessary teacher who shapes Hobbes, Locke and Rousseaus natural rights. This is because there are natural rights which may and do exist in total independence of government. Frohnen and Grasso note that while natural rights origin may be pre-political and, therefore, trans-political, their substance in civil society is given shape by prescription (71). Natural rights of men must remain the remote source and continue to somehow provide a standard of right for every civil society. The natural rights that were necessary for the practice of civil society are spiritualized into the whole of the moral life. It is important to note that the fulfilment of mans natural rights is set by the limits of mans fallible nature and the variety of circumstances found in every civil society. The real natural rights of a man are a matter of practical political reason, and are to be found only within the objectives and conventions of civil society (Frohnen and Grasso 72). Moral prudence was the principle by which scholars such as Burke felt the true natural rights of man in civil society could best be realized. Is there a potential conflict between the principle of majority rule and the principle of rule of law?
Democracy involves two basic principles which include the rule of law and majority rule. Ku and Jacobson (6) note that the rule of law means that political authority is exercised according to predetermined law. In the sense in which this term is used it is sometimes referred to as constitutionalism, a principle designed to prevent the arbitrary and capricious exercise of authority. Concern for the rule of law is especially acute with respect to the use of coercive power. On the other hand, majority rule is a principle for decision making. When there is disagreement about policy or a course of action, the disagreement is settled by voting, and the votes of the majority prevail (Ku and Jacobson 6). Majority rule respects human equality. It may be preferred as a principle for settling disagreements for this reason, or simply because of the difficulty of gaining widespread acceptance for any other principle.
Conflicts arise in the application of the two basic principles of democracy. This is because rigid adherence to an unchanging rule of law can frustrate majority rule. Ku and Jacobson (6) indicate that ensuring that there are modalities for changing the basic constitutional law is essential for successful democratic systems. Also, since majority rule can conflict with the rule of law, democratic ideals generally involve some limits on it like the protection of basic human rights and minority views. The rule of law is fundamental in a democratic society. Unlike majority rule, which is relied heavily on decision making, the rule of law reflects a variety of interrelated principles, including the need for an independent judiciary and transparent judicial process.
The conflict between the two principles exists because the rule of law is a foundation for protecting the rights of any minority in a political system characterized by majority rule. For example, under the rule of law in the United States, the Fifth and Fourteenth Amendments of the federal Constitution provide for due process, in that the government cannot deprive an individual of life, liberty or property arbitrarily without giving the individual an opportunity to seek legal recourse. This conflicts with the majority because collective decision making undertaken in such circumstances means lesser degrees of fairness and consensus (Ku and Jacobson 6). Another example is that even today, when the most common collective decision rule used in the public sector is a simple majority rule, Congress still must muster a two-thirds majority to override a presidential veto, and in criminal cases, juries must reach unanimous agreement to render a verdict.