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https://mtsu.edu/first-amendment/article/788/natural-law
https://www.mtsu.edu/first-amendment/article/822/natural-rights
Natural Rights
Thomas Hobbes (1588–1679) and John Locke (1632–1704) in England, and Jean Jacques Rousseau (1712–1778) in France (pictured above left to right), were among the philosophers who developed a theory of natural rights based on rights to life, liberty, and property (later expanded by Jefferson to “the pursuit of happiness”) that individuals would have in a prepolitical “state of nature.” (Image, public domain)
The concept of natural rights occupies an important place in American political thought as reflected in the Declaration of Independence. In the Declaration, primarily authored by Thomas Jefferson, the Second Continental Congress asserted the “self-evident” truths that “all men are created equal” and entitled to “life, liberty, and the pursuit of happiness.” The Declaration then proceeds to excoriate King George III and Parliament for denying such human rights. Jefferson justifies colonial revolution because of this denial of rights.
Scholars think that natural rights emerged from natural law
Many scholars think that the idea of natural rights emerged from natural law, a theory evident in the philosophy of the medieval Catholic philosopher St. Thomas Aquinas (d. 1274). Natural law was thought to embody principles of right and wrong — especially pertaining to relations between and among individuals — that could be ascertained by human reason, apart from divine revelation. Philosophers, however, were rarely in complete agreement as to the content of such laws. For example, they disagreed over whether natural law prohibits human slavery, as American abolitionists later argued.
Idea of natural rights shifted to claims of rights individuals can make against the state
As philosophers applied the concept of natural rights to the secular world, the focus shifted from rules concerning individual behavior to claims of rights that individuals could make against the state. Thomas Hobbes (1588–1679) and John Locke (1632–1704) in England, and Jean Jacques Rousseau (1712–1778) in France, were among the philosophers who developed a theory of natural rights based on rights to life, liberty, and property (later expanded by Jefferson to “the pursuit of happiness”) that individuals would have in a prepolitical “state of nature.” Some of these rights, especially those pertaining to the relation of individuals to their Creator, were paramount, and in the words of the Declaration of Independence,“unalienable.”
First Amendment dealt with fundamental individual rights
Although the First Amendment was originally third on the list of original proposals in the Bill of Rights that Congress submitted to the states for approval, it was the first amendment to deal with individual rights. Almost without exception, the rights in the First Amendment are thought to be fundamental because they deal with matters of conscience, thought, and expression.
The two religion clauses are designed to allow individuals to follow their conscience in matters of faith and worship, which some believe could determine eternal destinies, a basis for the argument that James Madison made in his “Memorial and Remonstrance” and in the Virginia Statute for Religious Freedom.
Clauses relative to speech, press, peaceable assembly, and petition are designed to promote discussion and debate concerning the kind of governmental policies that suit a republican, or representative, form of government, and arguably to promote the development of the individual’s personality. Perhaps as a result, courts were slow to recognize rights surrounding commercial speech.
Some provisions in the Bill of Rights are man-made; others are natural rights
It is doubtful that George Mason and the authors of the provisions in the First Amendment would have claimed to have originated the rights inherent in the amendment; it is more likely that they would have traced their origins to contemporary documents, including state bills or declarations of rights. Indeed, the Federalists’ initial opposition to the Bill of Rights stemmed in part from the belief that such rights were inherent liberties that did not need to be stated. By contrast, there are some provisions — such as the Fifth Amendment’s prohibition against double jeopardy or the Sixth Amendment’s requirement of trial by jury — that are clearly man-made mechanisms for enforcing fundamental principles of fairness, not morally mandated rights per se.
The natural rights of the First Amendment lead to the "preferred position" doctring
Rights embodied within documents are constitutional, or civil, rights, which serve to shape the values shared by a people. In the U.S. system, individuals can bring claims of such rights to courts, which have the power to enforce them. With the possible exception of equality, which was later recognized in the equal protection clause of the Fourteenth Amendment (1868), it is difficult to identify any rights outside the First Amendment that are more closely associated with the concept of natural rights; from this stem the arguments that these rights should enjoy a “preferred position” and that they are relatively absolute.
Embodying such rights within a written text is designed to preclude the necessity for resorting to extralegal means for securing their protection, but such rights would arguably be legitimate moral claims even if they were not embodied in the constitutional text. For example, the Supreme Court has on occasion made decisions on the basis of unenumerated general moral principles, or natural rights, rather than on the basis of a specific constitutional provision. Some believe the modern right to privacy is such a judicially created right.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.
Natural Law
The medieval philosopher Thomas Aquinas was among those who concluded that a man-made law is valid only insofar as its content conforms to the content of the natural law. An unjust law is therefore not really a law. This gives individuals who believe that laws are unjust a way to oppose them. Religious beliefs have long been cited as justification for disobeying laws. Dr. Martin Luther King Jr. invoked natural law in opposing racial segregation. (Public domain)
Natural law refers to laws of morality ascertainable through human reason. Moral philosophers have posited that such laws are antecedent and independent of positive, man-made law. The understanding of natural law is varied and complex, dependent upon the role morality plays in determining the authority of legal norms and rules. The relationship between natural law and the First Amendment is equally complex. In general, natural law, as a “higher” law, forms the foundation on which the First Amendment rests.
Natural law is the foundation for legal traditions
As a legal philosophy, natural law forms the basis and foundations for legal traditions. As a term of politics and jurisprudence, natural law is a body of rules prescribed by an authority superior to that of the state. It is intended to protect individual rights from infringement by other individuals, nation-states, or political orders.
Natural law as a protection of social practices and norms applies not only to states and governments but also to individuals. It provides an ethical set of rules for governing individuals in their interactions with one another based on the idea that positive, or man-made, laws are merely the articulation of the preexisting norms, social practices, and ideas held under natural law. Although natural law provides guidance for individuals in their pursuits and relationships, it does not lead to universal agreement. Moreover, humans do not always act on the basis of rational and deductive thought.
Aquinas concluded that man-made law is only valid if it conforms to natural law
The medieval philosopher Thomas Aquinas was among those who concluded that a man-made law is valid only insofar as its content conforms to the content of the natural law. An unjust law is therefore not really a law. This gives individuals who believe that laws are unjust a way to oppose them. Religious beliefs have long been cited as justification for disobeying laws. Dr. Martin Luther King Jr. invoked natural law in opposing racial segregation.
Locke believed if a ruler goes against natural law, the state can be overthrown
Theorists such as the English philosopher John Locke believed that if a ruler goes against natural law and fails to protect “life, liberty, and property,” then the people are justified in overthrowing the existing state. Locke and his successors often referred to “natural rights” rather than to “natural law” — thus somewhat secularizing the earlier concept, albeit while still acknowledging a Creator. Thomas Jefferson articulated this philosophy in the Declaration of Independence when he declared that “all men are created equal” and that “they are endowed by their Creator with certain unalienable rights,” among which he included those of “life, liberty, and the pursuit of happiness.”
Madison believed the state could not meddle in an individual's relationship to God
James Madison believed that the individual’s relationship to God existed prior even to his or her entry into society; individuals were directly responsible to God, and the state had no authority to meddle in this relationship. The right to the free exercise of religion would be furthered by maintaining the separation of church and state. At the same time, the government had no right to suppress the right of expression to which religious and political freedom were linked.
First Amendment serves as a form of natural law
In some respects the provisions of the First Amendment serve much like natural law: both are a form of “higher” law, superior to laws that governments might make. The power of the First Amendment’s guarantees has undoubtedly been enhanced by the willingness of the Supreme Court to enforce its provisions.
Even as scholars continue to debate the degree to which justices should seek simply to enforce the constitutional text and the degree to which they can also enforce unstated natural law principles of justice, natural law provides an ongoing means by which individuals can appeal beyond governmental actions, and even court decisions, to a higher justice.
This article was originally published in 2009. Dale Mineshima-Lowe is Managing Editor for the Center of International Relations, researcher and Associate Lecturer in both the Department of Politics and Department of Geography at Birkbeck, University of London, and Tutor of Politics and History at the City Lit, adult education college in Central London.
John Locke, Natural Rights
Natural Law Theory: Crash Course Philosophy #34
THOMAS AQUINAS: NATURAL LAW
Thomas Aquinas (1225–1274) was born in what is now central Italy, and spent his life as a priest and scholar in the Roman Catholic Church. His most famous work is the voluminous Summa Theologica, which contains an influential account of natural law. In brief, God embeds various values within our natural instincts, which we discover through reason; these provide the substance of both our morals and laws. Part of Aquinas’s motivation is to explain why natural law is universal, yet at the same time laws of particular countries can dramatically vary. For Aquinas, there are four kinds of law. Eternal law is God’s unchanging laws of the universe. Natural law is a subset eternal law, which God implants in human instincts and we discover through reflection. These include general rules, such as “don’t harm others.”
Human law is an effort by humans to take the general principles of natural law and deduce specific applications from them, such as “don’t write bad checks.” Finally, divine law, as contained in the Bible, reinforces the principles of natural law and adds special religious ones. Concerning natural law, Aquinas argues that there is one highest principle from which all others are derived: “Good is to be done and evil is to be avoided.” We determine what is “good” for us by looking at our human inclinations, and he lists six relevant ones: self-preservation, sexual intercourse, educating our offspring, rationality, knowledge of God, and living in society.
From these we infer six primary principles of natural law:
(1) preserve human life
(2) procreate
(3) educate your children
(4) shun ignorance
(5) worship God
(6) be sociable and do not harm others
Each of these primary principles encompasses more specific or secondary principles. For example, the primary principle “do not harm others” implies the secondary principles “don’t steal” and “don’t kill.” These, in turn, imply even more specific or tertiary principles, such as “don’t write bad checks.” As the principles become more specific, they leave the domain of natural law and enter that of human law. When considering whether natural law is the same in all people, Aquinas argues that the primary principles are common to everyone, such as “do not harm others.” However, more particular tertiary derivations of human law are not necessarily common to all societies. He argues that human law carries the force of natural law if they are derived correctly; however, “if in any point it diverges from the law of nature, it is no longer a law but a perversion of law.”
Aquinas next considers whether people were initially designed in the state of innocence (i.e., the Garden of Eden) to rule over others, and he argues that there is indeed a natural inequality among people. However, while there is a natural master-subject relation, there is no master-slave relation. In selections from another work titled On the Governance of Rulers, Aquinas explains the nature and responsibility of kings. People naturally need a ruler to be guided to their proper end, since we were not naturally designed to survive alone. The King’s main three obligations are to establish the good life for his subjects, preserve that good life, and improve upon it. In a final selection from Summa Theologica, Aquinas articulates three necessary criteria for any war to be morally just. First, it must be declared by the proper authority; private individuals cannot declare war or summon people to fight. Second, there must be a just cause, such as to address some fault or make amends for some wrong done by a rival country. Third, it must proceed from rightful intention, particularly the advancement of good, or the avoidance of evil.
Know Your Rights
Throughout history, rulers and dictators have taken away people's rights. In many parts of the world today people can't worship as they please, talk freely, gather with groups of friends, or travel. If you feel that everyone is always telling you what to do and that you have no rights, you're wrong! Children are protected by the same laws that protect adults, such as the Bill of Rights. Children also have their own rights, which were developed by the United Nations. It's important to know your rights and to stand up for yourself.
The Bill of Rights
The Bill of Rights was added to the Constitution in the form of amendments. The chief purpose of the amendments was to protect the rights of individuals from the government's interference. They guarantee rights such as religious freedom, freedom of the press, and trial by jury to all American citizens.
- First Amendment: Freedom of religion, freedom of speech and the press, the right to assemble, the right to petition government.
- Second Amendment: The right to form a militia and to keep and bear arms.
- Third Amendment: The right not to have soldiers in one's home.
- Fourth Amendment: Protection against unreasonable search and seizure.
- Fifth Amendment: No one can be tried for a serious crime unless indicted (accused) by a grand jury. No one can be forced to testify against herself or himself. No one can be punished without due process of law. People must be paid for property taken for public use.
- Sixth Amendment: People have a right to a speedy trial, to legal counsel, and to confront their accusers.
- Seventh Amendment: People have the right to a jury trial in civil suits exceeding $20.
- Eighth Amendment: Protection against excessive bail (money to release a person from jail), stiff fines, and cruel and unusual punishment.
- Ninth Amendment: Because there are so many basic human rights, not all of them could be listed in the Constitution. This amendment means that the rights that are enumerated cannot infringe upon rights that are not listed in the Constitution.
- Tenth Amendment: Powers not given to the federal government by the Constitution belong to the states or the people.
Other Important Amendments
Thirteenth Amendment (1865): Slavery shall not be allowed in the U.S.
Nineteenth Amendment (1920): Women have the right to vote.
Twenty-sixth Amendment (1971): U.S. citizens who are 18 years of age or older have the right to vote. (Previously, they had to be 21 years old.)
Your Rights as a Child
In 1989, the United Nations adopted the Convention on the Rights of the Child because “the child, by reason of his physical and mental immaturity, needs special safeguards and care” and because “in all countries of the world, there are children living in exceptionally difficult conditions.” Following are highlights of the 41 articles of rights.
- Every child has a right to life.
- Every child has a right to a name at birth and a nationality.
- Every child has the right to live with his or her parent unless it is against the child's best interests.
- Special protection shall be given to refugee children.
- Every child has the right to the highest standard of health and medical care possible.
- The child has a right to education. The state is to ensure that primary education is free and compulsory.
- No child shall be subjected to torture, cruel treatment, unlawful arrest, or deprivation of liberty.
- Children under 15 shall not be recruited into the armed forces.
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