Natural Rights vs Legal Rights: Political Philosophy

Comparison Overview

The distinction between natural rights and legal rights is one of the most important and contested in political philosophy. Natural rights are rights that are said to exist independently of any legal system — they are grounded in the nature of human beings, in a moral order, or in divine law. Legal rights are rights that are created and recognized by a particular legal system — they are the product of legislation, judicial decisions, and constitutional conventions.

The debate between advocates of natural rights and defenders of legal positivism is a debate about the foundation of rights and the relationship between morality and law. Are there rights that governments must respect, regardless of what the law says? Or are rights simply what the law says they are? The answers given by John Locke, Jeremy Bentham, H.L.A. Hart, and Ronald Dworkin represent the principal positions in this debate.

Key Differences

The most fundamental difference between natural rights and legal rights concerns their foundation. Natural rights are said to be grounded in the nature of human beings — in their rationality, their autonomy, or their capacity for moral agency. They exist independently of human institutions and are not created by governments or legal systems. Legal rights are grounded in the actions of human institutions — the enactment of statutes, the decisions of courts, the ratification of constitutions. They are created by law and can be changed by law.

The second difference concerns their universality. Natural rights are universal — they belong to all human beings simply by virtue of being human. They are not dependent on citizenship, membership in a particular community, or the recognition of a particular legal system. Legal rights are particular — they belong to individuals who are subject to a particular legal system, and they may vary from one jurisdiction to another.

The third difference concerns their inalienability. Natural rights are often said to be inalienable — they cannot be surrendered, transferred, or taken away. The right to life, the right to liberty, and the right to conscience are examples of rights that are often considered inalienable. Legal rights are typically alienable — they can be restricted, modified, or abolished by the legal system that created them.

The fourth difference concerns their relationship to law. Natural rights are standards by which law can be judged — a law that violates natural rights is unjust and may be illegitimate. Legal rights are the products of law — they are what the law says they are, and there is no standard beyond the law by which they can be judged.

Natural Rights View

The theory of natural rights has its roots in ancient and medieval philosophy, but its most influential formulation is found in the work of John Locke. In the Second Treatise of Government (1689), Locke argued that individuals in the state of nature possess natural rights to life, liberty, and property. These rights are grounded in the law of nature, which reason teaches: no one ought to harm another in their life, health, liberty, or possessions.

Locke's theory of natural rights was revolutionary in its implications. If individuals have natural rights that exist independently of government, then government is not the source of rights but the protector of them. The purpose of government is to secure the rights that individuals already possess, and if government violates those rights, the people have the right to resist.

The natural rights tradition was enormously influential in the development of modern constitutionalism. The American Declaration of Independence, with its claim that all men are endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness, is a direct expression of the Lockean theory of natural rights. The Universal Declaration of Human Rights (1948) is a modern expression of the same tradition.

Legal Rights View

The legal positivist critique of natural rights is most powerfully expressed in the work of Jeremy Bentham. In his Anarchical Fallacies (1796), Bentham dismissed natural rights as "nonsense upon stilts." Rights, Bentham argued, are creations of law. There are no rights antecedent to the establishment of government — the only rights that exist are those that the law creates and enforces.

For Bentham, the concept of natural rights was not only philosophically confused but politically dangerous. The claim that there are rights that exist independently of law could be used to justify resistance to government, leading to anarchy. The only legitimate ground for criticizing a law is that it produces bad consequences, not that it violates some supposed natural right.

H.L.A. Hart's The Concept of Law (1961) developed a more sophisticated version of legal positivism. Hart distinguished between the existence of a legal right and its moral justification. A legal right exists when the law recognizes it, regardless of whether it is morally justified. The question of whether a legal right is morally justified is a separate question. Hart's theory allows for the possibility that individuals may have moral rights that are not recognized by law, but these moral rights are not, for Hart, natural rights in the Lockean sense.

Dworkin's Synthesis

Ronald Dworkin's theory of rights offers a third position that goes beyond the natural rights-legal rights dichotomy. In Taking Rights Seriously (1977) and Law's Empire (1986), Dworkin argued that legal rights are not simply the product of legislative enactments. The law includes not only rules but also principles — standards of justice and fairness that are implicit in the legal system and that judges must apply in deciding hard cases.

Dworkin argued that individuals have a right to the equal concern and respect of the community, and that this right is not merely a moral right but a legal right that is enforceable in court. The right to equal concern and respect is the foundation of the legal system, and it is the standard by which the legitimacy of laws and governmental actions is to be judged.

Dworkin's theory is an attempt to preserve the idea that there are rights that governments must respect, without grounding those rights in a controversial metaphysical theory of natural law. The rights are legal rights, but they are not merely the products of legislative will — they are implicit in the principles of justice and fairness that constitute the legal system.

Contemporary Relevance

The debate between natural rights and legal rights is central to contemporary debates about human rights, constitutional law, and the legitimacy of international law. The Universal Declaration of Human Rights and the various international human rights treaties are based on the idea that there are rights that belong to all human beings, regardless of the legal system under which they live. The claim that these rights are universal and inalienable is a claim that they are natural rights in the Lockean sense.

At the same time, the legal positivist critique of natural rights has been influential in the development of international law. The question of whether human rights are truly universal or are a product of Western legal traditions is a matter of ongoing debate. The question of whether international human rights law is law in the full sense, or merely a set of moral aspirations, is also a matter of debate.

The debate between natural rights and legal rights is, in the end, a debate about the nature of law itself. Is law simply a system of rules enacted by human authorities, or is it a system that must respect certain moral principles? The answer to this question determines how we understand the legitimacy of legal systems, the obligation to obey the law, and the limits of governmental authority.