Natural Rights

0:00Novelty are casted always in every page and together with a traditional way of thinking. For instance, the secularization of natural law, which is considered to be very important, and most people consider it to be the work of Gratius. And that is the idea that natural law is not derived from God as a lawgiver, This here is at least as old as Grigori of Rimini, who died in 1358. Let me write it down.

0:50This is a very important thinker. He died in 1358 in Paris, not in René. I don't know when he was born, but nobody knows. And actually, so this is the idea. He was the very first person to advance the idea that natural law was going to be natural law even if God did did not back it. He was not ready to say even if God did not exist, of course. I mean, he didn't want to be burdened. He just wanted to stay alive. But actually what he meant was that natural law does not depend at all on the will of God. It's not God that makes natural law. God had a good plan for mankind, and then mankind can find natural law, Law, which is definitely in accordance, usually, with God's will, but does not depend directly on God's will.

1:48So if we think of Grotius as the person who in 1625 secularized the notion of natural law, we would be wrong, because it goes back to the scholastics. So that's one instance, and it could probably be traced back also to some passages of Thomas Aquinas, as I said yesterday. And it was long attributed to Grotius, who wrote, Grotius, let's forget his real name, I mean this is a Latin name, Grotius will be happy with that, Grotius. And he wrote his major book in 1625, and that's important because in 1625 historians think that modern natural rights theory began with this book which is called the Ure Belli Bacchus on Peace and War, although law, peace and war.

3:01So this came out in 1625 and usually, you know, when you ask somebody when modern political doctrines on natural law began, they always say 1625, the Europe-Eliac Project, so you've got to know that. And actually he's considered to be responsible also for the secularization, because he said at a certain point he said, and this, he's talking about natural rights, and he says, and this would be true even if we would say a thing which we cannot say without blasphemy and so on, but at the end he says, even if God did not exist, I mean very, and so that's considered to be like the secularization of natural law that most people used to think was the very, the very, the thing that was completely different, But as we said, it goes back even to the scholastics.

3:54But going back to the problem of continuity, actually scholars that tend to stress the continuity do have a very clear textual evidence of the close connections between the modern and medieval thinkers and even the ancient ones. And moreover, neither as a method nor as a body of doctrine was scholasticism as spent forth by the year 1600 and even in 1650 or so on. And actually the greatest synthesis of scholastic moral theory came out in 1612. And of course you wanna know the real title in Latin.

4:41And the author is a very important one.

4:50And the title is...

5:15And the year is... 16 and 12. So like the greatest synthesis of scholasticism came actually out during modern times and so it's de legibus, legibus ac deo legislator, no need to translate that, right? It's been on laws considering that God is the and so he was a Jesuit and his first name is Francisco by the way and so actually we should ask ourselves what is it that makes modern doctrine so modern what is there something that makes it very modern and my answer would be that the thing that make natural right theory so novel is not so much what What we find in them, but is pretty much what we find outside of them.

6:21That is, the changing political atmosphere in Europe. And what we call, what I'm referring to, the rise of what we call the modern state, and according to a lot of historians, should just be called the state, as there was no Ancient or archaic state or anything like that, but the state was only a modern thing. And so in this sense, the new institutional reality of modern times that accompanied all these theories after the 1600s and that was shaped during the 1400s and 1500s, it's the greatest concentration of political power ever known to mankind.

7:08So at this point, the natural law theorists had to face something very new, absolutism, the state. And modern natural right thinkers are modern first and foremost because they are confronted with the state, the institutional framework of modernity. So that to me is like the most important thing for which they are modern. And of course, sometimes they're confused by the... they merge together with the social contract theorists. And so you have a lot of people, you know, the social contract, very simply it works like there was a state of nature, for some reasons it didn't work, or it was not enough, or it was bad enough, as for Hobbes, and then people had a contract and they formed political societies that is the state and they transferred, or maybe they did not, some of their natural Natural Rights to the Sovereign and then you have Political Community. Now that's Contractarianism and for a certain period, especially in the 1600s, the idea of the contract was very much

8:17and closely linked to the idea of natural rights. But actually from the intellectual and theoretical point of view, you can make clear distinctions between the two. One thing One thing is to say how political societies were born and to postulate it even as a historical reality or just a theoretical concept. And the other one is to say that men, that people, men and women have natural rights that is based on nature. One of the confusions actually is that most of the people think about natural rights as the rights that people possess in a state of nature. That is a very narrow way of looking at natural rights. Natural rights, according to the long tradition, is pretty much the rights that are dictated by nature, that are prescribed by nature to man, and that pertain directly to the essence of man.

9:14So actually, while the characteristic of ancient and medieval natural law was to be immutable, As we've said yesterday, the main feature of modern natural law was to produce rights, individual rights that were thought to be inalienable. And that's a good concept and we'll come back to this again pretty soon. And you have to note actually, you have to know that in John Locke's terminology, at at least in the Second Treaties, there's no mention of inalienability of rights and although he uses the concept and that has given rise to a lot of talk and discussion about inalienable and natural rights, but we'll discuss that in a bit.

10:07In turn, actually, inalienability means that one cannot divest himself or posterity of these rights, and that the state or political power cannot infringe upon the same rights. The concept has two meanings. And so the nature-given rights are the essence of human dignity, off the possibility actually of pursuing a fruitful and meaningful life, and to violate them as to deny the humanity of the individual. So it's just not doing wrong to someone. But for these writers, for most of these writers, and most of these thinkers, it really means to violate the dignity of the individual.

10:53But we'll go to this crucial point later. First of all, we have to sketch an outline of how the classical liberal tradition came to form on life, liberty and property, to focus on life, liberty and property as the powerful trio, summing up all natural rights. As you know, for the classical liberal tradition, there are only three natural rights, life, liberty and property. And when you think about it, we could say life and property, the idea that nobody can aggress yourself and the idea that nobody can aggress upon your lawful possessions because life is liberty. I mean, that's part of these. You can define liberty certainly in terms of being free to acquire goods and being free from aggression. So the close connection between liberty and property is part of the natural law tradition from Thomas to Suarez and was later developed fully by John Locke, as you all know.

11:57But the scholastics already called property dominium of external things and liberty dominium of oneself. So there you have a very closed link. You know, it was dominium over external thing that was property and dominium over yourself that was freedom. So you have a clear link that you don't have to wait until John Locke to see the closed link. And Suarez actually used the same word, dominium, to define the sovereign authority. So he used the word dominium in three senses, you know, it could be liberty, so when he was doing something wrong with his dominium, then you certainly had the right to rebel and not to obey him. Now the real problem is to distinguish between contractarianism, as I said, and nature-based rights.

12:48In other words, some rights might be viewed as the outcome of a contractual agreement and thus based on consent, and other rights as dictated by the very nature of men. And this is the way that most people look at natural rights, but I'll say how this could be kind of murky. And in many early modern theories, the line between consent and nature is not so easy to detect. You know, on one side you have a lot of people just thought that property came out of consent and then it was John Locke who proved that it came out of nature and it was a natural right. For instance, in Suarez's view, in situations of extreme hardship, the needy have the right to make use of private property of others.

13:37But not because of certain characteristics of private property, but simply because life overrides property. You know, he believed that there were natural rights, both life and property, but, I mean, if you're risking your life, you could get whatever you wanted and you were in need. And in that sort, in a certain sense, it could make some sense. But because private property returns, in his idea, it returns in times of hardship, it returns to the original common in the state of emergency. So the idea of the original common ownership for all mankind is present at almost in anybody, you know, in the 1600s, that was, that God gave the earth in common to the children of man, that's also written on the Bible, so it doesn't say in common, it says gave the earth to the children of man, but they just, that's the way they read it, and actually the only reason that private ownership was ever permitted is that it was consented to by the common

14:42and owners, and that up until John Locke, that was pretty much the view of very many thinkers. So, contractual agreements are always overridden by the goals set by the law of nature, which is in turn roughly and broadly speaking the common good in Suarez view, you know, so in a certain sense, private property is contractual, consented, I mean even tacitly consented by the people who let you take something out of the comments. So the idea was later expanded by the most important Protestant thinker of the times, Grotius again, who wrote The Law of War and Peace as I said in 1625, which was very influential. What you do not find in The Law of War and Peace was the idea of the state of nature.

15:32The state of nature is not there. It developed a bit later, but you have the idea that there are natural rights. And Grelzius outlines his view of how private property came into existence in book two, chapter two. And let me quote this. Yes. God conferred upon the human race a general right over things of a lower nature. Each man could at once take whatever he wished for His Own Needs, but whatever Hitch had thus taken from his own needs, another could not take from him," end quote. And then he states how things became subject to private ownership.

16:18It happened, and this is a quotation again, by a kind of agreement, either expressed as by division or implied as by occupation. So that was his idea of private property. And with some important differences, actually the same theory on the origin of property was becoming part of the modern natural rights doctrine in the 1600s. to Samuel Pufendorf, better write it down.

17:07So to Samuel Pufendorf, who wrote the law of nature and nations, in, well, I forgot the year, but it was 1660 something, you know, yeah, circa mid-sixties, all right, anyway, it was called, it was The Law of Nature and Nations, it's a very common title, you find a whole bunch of books that are called The Law of Nature and Nations, Because the law of nations in the 1600s was the law of nature. It was the same thing. And in fact, Thomas Jefferson, one time he was translating, and he translated the law, eus gentium, and he translated, which was actually the law of nations, and he translated natural rights, natural law, because it was supposed to be the same thing.

18:02You know, in the law of nations, there was nothing like positive law. There was also, there was only natural law. If you want me to write it down. on the law. And you had Fattel and all sort of people who wrote books with the same title and pretty profound stuff that I have to spend much time on. Anyway, he based the right to Property and Human Agreement, although the human agreement was of a different kind, but it was a human agreement rather than natural law. And at this point, you know, like the question of property and its origins seems to be pretty much solved by these thinkers, and they were authorities, you know, they were all well known throughout Europe and everybody referred to Grotus and Pufender and everybody was pretty much settled.

19:01But what happened then is John Locke came along and he changed the whole idea as far as the origin of property goes. And so in 1690 he published, well you know what he published, right, the Two Treatises on Government. I don't have to write it down. it was in 1690 and he put the date 1689 on it he actually published it in 1690 but now we know that he wrote the book in six between 1679 and 1683 so like almost ten years earlier than a lot of people thought for very many years now with what does that mean well the first thing it means that John Locke was was not writing any justification for the Glorious Revolution, because he wrote it prior to the Glorious Revolution.

20:05The second thing is, it was anonymous. I mean, he just wrote in his will that he probably was the author. Everybody knew, but it was anonymous. So he was really afraid. And if you're writing the justification of a regime which is in place, I mean, you're not afraid of anything, right? Right? I mean, you just want to be a sort of laureate philosopher, but he was actually afraid, you know, he was afraid because of what happened to Sydney in 1683. He actually lost his head for republicanism, literally, of course. And so actually it was written probably in 1679-81, and I point out this to you because it's very important because you have to understand that it's much more a revolutionary theory than we always thought, especially that Marx and a lot of other people thought.

20:59And so it changed forever the debate on the origins of property, that is, private property. And this book, the two treatises of government, I mean, you always talk about the first and the second one, but it's actually the same book, you know, it's like two parts of the same book. and but but we all do we all do we talk about this the first and second one and it's really considered the starting point of classical liberalism and also libertarianism and Locke's doctrines of course did not come out of the blue in fact Lord Acton himself considered him to be the last of the scholastics and he said that Thomas Aquinas was the first of the Whigs so in In this sense, you can see that there is a relationship with the old tradition and it's very clear because especially now we know how much Locke's ideas were deeply rooted in the natural law tradition as it is clearly shown by his essays on the law of nature,

22:05which were written probably in 1663, 64, but were published only in 1953 for the first time. They came out and were published in 1953. So a lot of people said, well this guy, because a lot of people thought that he didn't talk long enough about what law of nature was, what he meant by the law of nature. And actually he didn't do that because he had already done this in the essays on the law of nature but were never published. So you can see that there is a clear connection between scholasticism and everything that was going on and the thought of John Locke. So Locke is really a political thinker of great force and his arguments that tie private property and private ownership to natural rights and natural justice are still at the core of classical liberal and libertarian thinking.

22:59And moreover, actually, since we are in America, you know that the Founding Fathers, most of them, at least, were thinking in Lockean terms, as they thought that the only legitimate role of government was to protect individual rights that predated any establishment of political society. That was the common understanding in America. Actually, John Locke was much more important for political developments in America than in England. In England, he was not, I mean, politically, he was taken too seriously as a philosopher and not too seriously as a political thinker. But in America, it was quite the opposite, and I think he was a much greater political thinker than a philosopher.

23:44He was a great philosopher, a much greater political thinker. And in spite of the revisionism that came from the so-called republican school that you've heard about, Gardenwood, Pockock and so on, the U.S. at the founding was really found in lock the basis of their moral philosophy. And really of note that for me the U.S. is always plural, you know, I'll never say the U.S. is, John Locke was the first to demonstrate and to show brilliantly that the laws of nature impose an obligation on men to respect the property rights of anybody who acquired these rights, in a just and legitimate way.

24:37So Locke really wants to show how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact among all the commoners. This was a quotation, end quote. Man might come to have a property in several parts. That was actually his task. So pretty, the legitimacy of the original acquisition was really the task. And to demonstrate that was a task that Locke was really wanted to achieve and he did achieve it. And Locke actually discovered that private property was indeed imposed by the law of nature, long before any human convention sanctioned it. and he begins to explore in the second treaties the characteristics of the state of nature and I wanted to quote at length of second treaties but I will not do that right now otherwise I will not have time to to conclude my argument but but it's a it's very short brief you can read it in one afternoon and it stays with you for quite a while and so Locke agrees with the traditional

25:47A view that originally God gave the world in common to the children of men. However, quote, Every man has a property in his own person, and this nobody has any right to but himself. So this was really the starting point of the natural, of the idea that you can acquire property from in the state of nature in a legitimate way, because you do own yourself. So this is really a crucial point. In fact, it is exactly from this absolute right of self-ownership that the legitimate acquisition of what was once common property becomes possible. In fact, it was an obedience to a command of God and reason that man mixed his own labor with the earth to improve it for the benefit of life.

26:43so it was really a command of God and a command of reason pretty much the same thing and man and next to the land that nobody was using his labor which is something that was his property and nobody else had a title to nor could without injury take from him and so Locke clearly stated two axioms that are crucial to the contemporary libertarian movement the self ownership and the The Homesteading Accidents, Homesteading. So private property was now founded on the solid rock of natural law instead of the murky sands of human conventions.

27:31And I'm not saying that it's not been challenged, but actually if you take a look at any article was written in the 1900s on private property. They always began quoting Locke. I mean, even if it's to refute his position and so on. Whenever they start talking about private property, they always begin with John Locke, because it was very forceful and certainly it sounds something like of natural justice, too. There are other aspects of John Locke's political doctrine that are very important, definitely, Definitely, but nothing compares to this. Labor and reason establish the title to private property, and there is no consent, either express or tacit, involved in this operation.

28:17And actually in the 1800s, you had a bunch of British socialists that, given this labor theory of acquiring property, tried to use John Locke as sort of the grandfather of socialism. it didn't last very long I mean it was clearly flawed but but certainly the idea that he put labor as the essence or essential entity essential thing that came out to justify property was was important also to some socialists but in some part of the Second Treatise Locke refers to property meaning life, liberty and estate usually property is private ownership and so on but then he refers to refers to that property summing up all the natural rights that is life, liberty and estate.

29:09That is, property becomes the sum of all natural rights and it is in this way he began a tradition which we can call the property rights tradition. And actually the dream I would say or illusion at least of Locke, Jefferson and countless classical liberals after them was to create a government as a rights protector. That was their dream that we can now see as an illusion. And strictly confined to its role of offering the individual pretty much the same protection for his rights that she would seek for herself if she were so powerful.

29:54That was the idea, actually, that most of these classical liberals had. It was a very noble idea, I greatly respect it, but to tell you the truth, I agree with Rothbard that says that the real utopia is limited government, because government power tends to grow in itself and there's no way of stopping it. So the real utopia seems to be limited government, and well, anarchy might be a sort of utopia So one thing must be clear, in the Lockean and largely American framework, individuals do not give up any of their natural rights whenever they enter into society.

30:41There is this bizarre notion, and sometimes you even read this in textbooks, that they give up some of their natural rights. No, they do not give up any of their natural rights. One thing they probably do give up is self-defense, because actually the state of nature, according to Locke, is a state in which there is no common judge. And if you do have a common judge, then you give up your right to self-defense, but that's probably the only thing you may think of giving up when you enter society. Rather individuals enter into a state of political society and leave the state of nature only to better preserve and protect their natural rights, in his theory, and it could be argued that the only right that do relinquish, as I said, is self-defense, but the compact that creates political society, in Locke's opinion, has got to be unanimous. You see, if one person says, no, I'm pretty much glad to remain in the state of nature with all my rights, that's

31:43This is all for the rest of the community, you know. There's no way you can create. There's not, there's anything like this murky concept of quasi-unanimity that Buchanan uses or anything like that. You know, it's unanimity. It's got to be, everybody's got to consent. And so, to enter in a social state, I mean, you have to go by a contract of this kind. And the social state means to have a common judge, because you just believe that The real problem with the state of nature was that you didn't have a common judge to refer to, and so the principle was name-o, eudic, I'll write it down. So the principle that was violated in the state of nature was that nobody should judge when his part of, when, nobody should judge his own things, his own quarrels, his own conflicts.

32:47So that was violated and then so people moved to the state of society in order to avoid this this problem, but it creates, you have to understand that not only you have a common judge, but what you do is you create, it's really twofold, the contract that creates political society. First, it creates a global civil right, that is, the right to securely enjoy life, liberty and property. And it does not create any conventional rights, like the rights you can have by majorities with parliament or anything like that. It just creates you a global civil right. It gives you a global civil right.

33:33The right to be protected by government and enjoy life, liberty and property. and there's nothing like such a right such as to a welfare check or anything like that that could be created do I mean majority and conventionally actually what it happens you can say that these rights are reinforced conventionally but only the natural rights are reinforced conventionally and there are there's no new right new right implied in the contract so in this framework civil rights are the right of being protected by the government. On the other hand, the compact poses strict limitations on government activities, not only the violations, but also the scarce protection of natural rights render the government illegitimate and thus subject to the right of revolution. So we have two rights stemming out of the A right to be protected by the government and an individual right to revolution, that is to protection from the government.

34:45So you have, with John Locke, you have this very limited government, a right, you have the right to be protected, and of course you have your own right, which is the right to revolution, and John Locke is always individual. I'll show it to you, but it's clearly stated it's individual. You could do it collectively, but it's not of the whole community. It's always an individual riot. So this sums up, actually, the moral and political philosophy of Locke and also of most of the founding fathers of the United States. And, as you know, they were very suspicious of political power in general, and also they thought that the real threat for human liberty came from government.

35:30And in this sense, they not only considered rights natural, but also inalienable, as I said. Now, one problem with this is that Locke doesn't use the concept. He uses the concept, but he does not use the word. We'll go very quickly on that, but the concept of inalienable rights was certainly very important to revolutionary America. So if certain basic rights were to be the moral touchstone by means of which the conduct of all political authority must be checked, then they must be hinderant to hold individuals. This was clear for the revolutionary generation in America, But, actually, what happens to be yesterday's matter of fact, matter of course, becomes today's puzzle.

36:19As you see, you know, with all those historians writing pages and pages on inalienable rights and they don't know what they're talking about. And so, so many contemporary scholars have trouble understanding the very concept of inalienable rights. And some even contend that inalienable and natural are two separate categories, which is really bull as far as I'm concerned. And actually there's a scholar who said that I could relinquish my natural right to property by letting kids play in my own yard. That's a very bizarre statement. It comes from a good scholar, I tell you that. I mean, you're exactly using your natural right to property. You let people in and play, you know.

37:07That's the way of using it, not forfeiting your natural light. But I'll make it very simple for you. Inalienable actually means that one cannot divest herself of these rights, even if you really wanted to. And being the essence of the human condition, it would be equivalent to saying, I am not a person. However, inalienability is the impression of nature. So nature renders inalienable certain rights by imprinting her mark on them, and by creating men, nature's God has also provided them with rights, both natural and inalienable. They are one and inseparable. Now one last word on the recent revival of natural rights doctrine.

37:52As you know, after the 1800s, it went down, slowly declined. At the end of the 1800s, it was over, and it was only the Catholic Church who used it. In 1879, they proclaimed Sam Thomas Aquinas to be like the official philosopher of the Church and so on. So for at least, for almost 100 years, if you wanted to talk about natural brides, you had to know your Latin and go to talk to a lot of bishops. But, what happened in 1974? A book came out, not a great book at all, but influential, which is called Anarchy, State, and Utopia, and was written by Robert Nozick. But the good thing about this book is that since the guy was at Harvard, then you could start talking about natural rights again, and they would accept the articles, at least for quite a while.

38:42But everybody says, you know, that he takes a natural rights approach. However, he never really argues for his thesis that individuals are engines in their own cells and thus have rights to life, liberty and property. He just states it in the first pages and that's it. Then he never argues about it. He never argues in favor of it. As his position was never defended, it was very easy for him to abandon his weak classical liberalism and become a socialist. and he did that, I mean it's written all over, he said it to me at once actually, we were always talking to Robert Nozick and he was considered at the time a great philosopher and he said oh there's only a bunch of you libertarians, why don't you go on an island and build up a society, that's a great way of reasoning for one of the greatest philosophers of our times, really a great argument, but anyway, since he wanted And to be considered part of the Harvard establishment, I understand that there was some utility.

39:48But actually, the books that he wrote after Anarchy, State and Utopia, I mean, nobody really cared about it. Not at Harvard and not anywhere else. The Nature of Rationality is a book that made me laugh all through the book. I mean, it's just not his field. But a much more serious effort, and that's really the end of it, a much more serious Days after, to restate, the natural rights doctrine was done by our, Murray Rothbard, in 1982, in the Ethics of Liberty, a book that I was very proud to translate in Italian a few years ago. Now, so you're pretty much sure that I read it, since I just dated it. So Rothbard really takes the position of natural rights to the extreme.

40:35He actually uses the concept of inalienability to destroy the idea of the legitimacy of the social compact. So the social compact would in fact imply the alienation of natural rights, and thus it is illegitimate, just like a contract by which someone would sell himself to slavery. So, at this point, you can see that the two traditions that Block fused, on one side, contractarianism and natural rights on the other, are now completely separated. The most notable defender of the former of contractarianism is John Rawls, who wrote a lot of books, but the most influential of which was The Theory of Justice in 1971, who who actually argues that we can agree upon certain ideas of what a just and fair society is, but that we have no natural rights to begin with.

41:33He actually argues that we do not own our own talents. I mean, let's say I was Pavarotti, I was a great singer, I do not own this kind of talent. And I guess what kind of personality comes out of this when you don't even own your talents, when you owe it to society. I think you're not even human. So while the natural rights doctrine is still the greatest fence to liberty as Rothbard shows, the contractarian tradition has followed a quite different path, the justification of the warfare welfare state that historically has been the greatest threat to individual liberty.