Monday, November 1, 2010

Do the Founders Agree On Natural Rights?

What do the Founding Fathers say about natural rights?

"I say RIGHTS, for such they have, undoubtedly, antecedent to all earthly government, — Rights, that cannot be repealed or restrained by human laws — Rights, derived from the great Legislator of the universe."
From John Adams, A dissertation on the Canon and Feudal Law, 1765

"Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature."
From Samuel Adams, The Rights of the Colonists, 1772

"This is what is called the law of nature, 'which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original.' Blackstone.

Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety. …

'The principal aim of society is to protect individuals, in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; …' Blackstone. …

I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui."

From Alexander Hamilton, The Farmer Refuted, 1775

"That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."
From George Mason, The Virginia Declaration of Rights, June 12, 1776

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness."
From Thomas Jefferson, The Declaration of Independence, July 4, 1776

Are all the founding fathers on the same page? It is clear that they reject the thesis that rights are a human convention. And it’s clear that they attribute rights to a supreme being. But do they agree how and when? The dominant thesis is that rights were created when man was created—as an inherent unalienable part of his being. If this is so, conventions, covenants, and commandments, created after man came into being are not and can not be a source of natural rights—even God’s covenants. Hugo Grotius, to take Hamilton’s recommendation, explains this as follows:

“Natural right is the deictate of right reason, shewing the moral turpitude, or moral necessity, of any act from its agreement or disagreement with a rational nature, and consequently that such an act is either forbidden or commanded by God, the author of nature. The actions, upon which such a dictate is given, are either binding or unlawful in themselves, and therefore necessarily understood to be commanded or forbidden by God. This mark distinguishes natural right, not only from human law, but from the law, which God himself has been pleased to reveal, called, by some, the voluntary divine right, which does not command or forbid things in themselves either binding or unlawful, but makes them unlawful by its prohibition, and binding by its command."

There is God, the author of nature, and God who issues subsequent commands.

"Now the Law of Nature is so unalterable, that it cannot be changed even by God himself. For although the power of God is infinite, yet there are some things, to which it does not extend. Because the things so expressed would have no true meaning, but imply a contradiction. Thus two and two must make four, nor is it possible to be otherwise."

In other words, once man was created, his nature, including his rights, are a metaphysical fact as certain as the law of identity. But what about the covenants in the Bible?

"The very meaning of the words divine voluntary right, shows that it springs from the divine will, by which it is distinguished from natural law, which, it has already been observed, is called divine also. … Now this law was given either to mankind in general, or to one particular people. We find three periods, at which it was given by God to the human race, the first of which was immediately after the creation of man, the second upon the restoration of mankind after the flood, and the third upon that more glorious restoration through Jesus Christ. These three laws undoubtedly bind all men, as soon, as they come to a sufficient knowledge of them."

I'm not raising an epistemological issue—how do we know about rights? It's the metaphysical issue that concerns me. Where in reality are rights? According to Grotius and most of the founders, it is in human nature from the very moment man was created. It is a very part of his being and unalienable. If this is true, neither man's covenants nor God's can change this fact. Did the Founding Fathers all agree?


Tom Van Dyke said...

Persuasively documented, and thx, Jason.

Believe it or not, everybody, my own primary interest and study has always been the nature of "rights," the philosophy of rights, and where that leaves the question of rights in the 21st century.

This was this question that led me to "religion and the Founding," to this blog. I just sort of ended up here.

Philosophy---ancient and modern---and theology---Christian or otherwise, and even the question of theology or no-theology---all seem to meet at a crossroads in one time and place.

America, c. 1776.

Mikewind Dale (Michael Makovi) said...

I find Grotius's view to be very interesting.

I am reminded of something in the Talmudic book Sifra, a Rabbinic commentary on Leviticus. There, Sifra makes a distinction (I am writing from memory) between חוקים שאילו לא נכתבו היה להיכתבם וחוקים שאילו לא נכתבו לא היה להיכתבם, "Laws that were they not written, should have been written, and laws that were they not written, should not have been written." I.e., the distinction Sifra is making is between laws that are inherently just and binding irrespective of whether God gave them, and laws that are binding and just only because God gave them.

Medieval philosophy - of which the Jewish sort I am most familiar - made a Mt. Everest out of this issue, asking the question, why was revelation necessary if reason suffices? Rabbi Saadia Gaon's Emunot v'Deot ("Beliefs and Opinions") followed the Muslim Mutakalimum - i.e. Aristotelian but religious Muslims - and answered that for the most part, revelation merely gets you the information faster. He added that revelation can fill in subtle details that reason cannot. (Murder is wrong, but what about assisted suicide? Etc.) Rabbi Bahya ibn Paquda's Hovot ha-Levavot ("Duties of the Heart") answers that revelation was necessary because the Biblical Hebrews were so mired in idolatry and removed from philosophy and reason that for them, revelation was necessary, but it would not have been necessary for those with Greek philosophy. Suffice it to say, many Jews outside Medieval Spain were not impressed. Rabbi Leo Adler's The Biblical View of Man (from 20th-century prewar Germany) answers, basically, that revelation was needed not because man's intellect is insufficient, but because his passions often overrule his intellect, and revelation is needed for man's troublesome passions, not because of any defect in his intellect. Whereas the Greeks believed that right knowledge alone is sufficient, the Torah, he says, recognized that the heart can often make a man do that which he intellectually knows to be wrong, and only the belief in God and His commandments is a sufficient counteractive.

to be cont.

Mikewind Dale (Michael Makovi) said...

cont. from above

Returning to the Sifra, Maimonides used this to make a distinction between moral and ritual laws. There were Jews who believed that God was impressed by rituals and effort themselves, and to that end, they would take on ascetic practices and forbid themselves things which the Torah did not. Maimonides responds with a battery of Talmud quotations, including the passage from the Sifra, but also a few others:

--- "Is it not enough for you that which I prohibited, that you had to prohibit yourself more?" - Talmud Yerushalmi
--- "In the hereafter, a man will have to give account for every permissible thing which he wrongfully denied himself." - ibid.
--- "A man should not say, 'I hate pork', but rather, 'I love pork, but what can I do, for my Father in Heaven has prohibited it.'"

Maimonides makes the innovative claim that in moral laws - of the sort that would be binding even if God had not commanded them - a man should do his best to incorporate those laws into his ethos, until he does them not because God commanded, but because they are right. A man ideally will abstain from murder not because God says so, but because a morally healthy person should not want to murder.

By contrast, with ritual laws, a man should perform them only because God says so. The quotation about pork above, Maimonides notes that it speaks of pork, not murder and theft.

What Maimonides was arguing against was the mystical stream in Judaism, that held that ritual acts have some intrinsic, sacramental significance, serving to either repair the cosmos or to thaumaturgically and mechanically bring down Divine influence. It was Maimonides's view - and my own, by the way - that this mystical school does damage to what is written in the Bible and Talmud.

One of my rabbis told me that Rabbi Yehiel Yaakov Weinberg - also of 20th-century prewar Germany - said that there are blessings/benedictions on ritual acts but not moral ones, in Judaism, because the moral acts would be obligated even if God had never commanded them.

All of this is rather beside the point being made and the question being asked in this post, but I just wanted to register how thought-provoking Grotius's quote is to me. Jewish philosophy is what I personally know best, but I would be grateful if anyone else wrote down anything from classical or Christian philosophy bearing on this subject.

Mikewind Dale (Michael Makovi) said...

I will say that when I read William Tyndale's The Obedience of a Christian Man, I felt like his discussion of sacraments could have been written by Maimonides, and Tyndale's presentation of the Catholics sounded an awful lot like the Jewish mystics, such as the Kuzari by Rabbi Judah Halevi.

Mikewind Dale (Michael Makovi) said...

I recall seeing Blackstone say something to the effect that God had to reveal the Torah, despite His already having written the natural law on the hearts of men, because men's sins and passions obscured their ability to read this natural law properly. This cuts back to Rabbi Adler, that the problem is not that man's intellect per se is lacking (as per Rabbi Pequda), but rather that his passions can obscure his intellect. It is not a question of learning more philosophy, but a question of closing your ears to your passions and listening to what your intellect already knows.

Mikewind Dale (Michael Makovi) said...

"If this is true, neither man's covenants nor God's can change this fact."

I will generalize, and make a take a lazy intellectual shortcut, and rely on John Calvin, given how much Calvinism there was in colonial America. I am sure there were other important Christian streams, but frankly, I don't know enough Christian philosophy to say anything about them. I'll stick to Calvin because I know him best.

Calvin says that the moral laws of the Torah are still binding, but that the civil laws of the Torah are merely recommendations, a practical case-history of one possible way to put those moral laws into effect. Calvin also says the natural law is written on the hearts of men. He says that any human civil law is valid insofar as it agrees with the natural law and the revealed moral law. The civil law of the Torah gets a vote but not a veto.

What this would suggest, I think, is that indeed, neither man's covenants nor God's can change this. According to Calvin, the Torah's moral laws are merely a revealed form of the natural law already written on man's heart, and the Torah's civil laws are merely a recommendation of how to put them into effect. It is axiomatic to Calvin that revelation changed nothing except to make the natural law written on man's heart clearer. (The reasoning given by Blackstone and Adler seems to me to be the most likely for Calvin as well, as opposed to Paquda's.) And he already said that man's laws must agree with the natural law and revealed moral law.

So to the question, "Did the Founding Fathers all agree?", I will at least answer that those who followed Calvinism or some product of Calvinism, probably all did. And given how prominent Calvinism was in America's history, this is no small number of Founders, I think. Calvin would agree that "neither man's covenants nor God's can change this fact," and many Founders agreed with Calvin.

Besides, is God a man to change His mind? If He thought a certain moral law was true enough to write on man's heart, would He really go and change it later? If He thought murder was wrong at Creation, would He ever go back on this? Unlikely, implies the Prophet. This is excepting those laws that are concessions to human nature. The Talmud says that the law of taking a woman captive in war is such a concession, Maimonides says the sacrificial system is, and Bullinger (citing Tertullian) says the entirety of the Torah's ritual laws are such. But except for such concessions, it would seem to me that most Founders would probably say that because God won't change His mind, His covenants cannot/will not change what He installed at Creation.

Jonathan Rowe said...

The FFs w/o question agreed on natural rights, in principle.

The more difficult question is how they were put into action. Did courts, under the judicial power which included nullification of lower laws under higher law, have the power to invalidate laws that violated natural rights?

The second question is how much natural liberty do people in the state of nature cede in return for civil rights?

Both of those are questions where the FFs may have disagreed.

Jason Pappas said...

Thanks, Tom & Jonathan,

I’m diving back into the study of natural rights after many years. I’m re-reading and, in some case, reading for the first time many of the important works of the 17th and 18th century. I happen to agree with the founders on the importance of these principles for the proper foundation of a liberal order.

One point I appreciated by gathering these quotes was the close agreement on the founders’ theory of natural rights and the “first law of nature” as Sam Adams calls self-preservation. While they agree that natural law come from God as man’s Creator, they don’t imply the converse, that whatever law He commands becomes a natural law. They appreciate man’s nature, as a living and rational being, as a source of natural rights.

There are other theories that take natural law as certain innate desires or instincts. I don’t see this in the FF viewpoints. And, of course, modern theories that see rights as entitlements to goods and services are clearly not part of the FF viewpoints. Also, deontological theories that reject any instrumentality (such as self-preservation) wasn’t part of the FF’s theory of natural law and rights.

Jason Pappas said...

Mikewind, I find your comments interesting but I currently lack knowledge of Jewish history. You are addressing a different issue, the epistemological issue, of how we know natural law and natural rights. I’m interest in that, too. I’m more familiar with Aquinas on that issue but I’ll leave this for another time.

Angie Van De Merwe said...

I really like the distinction Jon and Jason make about natural rights/natural law.

If God's order is pre-eminanant, (higher law) then what is the use of any civil right that would be in opposition to such a "higher law". "Higher law" would always trump civil rights. We might as well be a theocracy, then.

Natural law as "God-given", but not "God's commands" as natural law. This affirms "God", but doesn't have to, as it is a matter of "faith" to think that natural law is "God-given". The Founders didn't want to prescribe religious ideology, only to affirm its relavancy to certain segments of society.

So, I thank both of you for making the discussion a little clearer for me...

And, Tom, if you have any reading material for me on your journey about natural rights, then send them my way. Thanks.