Wednesday, July 27, 2022

The American Theory of Rights: Not in the Social Contract, but in the Natural Law

 James Otis might have become the foremost thinker of the Founding, except he was brained by a violent Tory in 1769 and was showing signs of mental problems before that.  But 'twas James Otis who got the intellectual arguments for the American vision of liberty off to a brilliant start in 1764:




"Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God."
This is the unique American theory of rights as expressed in the Declaration of Independence--the foundation of man's rights is "the laws of nature and of nature's God."

Here the erudite James Otis makes the essential distinction between various "Enlightenment" theories of government and rights [Hobbes and Harrington, yes, even contrary to John Locke!] and the uniquely American vision--our rights come prior to government, we don't negotiate our rights with the government, or with each other:

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.
Rights are prior to government, then

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...



And some years later, in 1790, James Wilson---one of the few signers of both the Declaration and the Constitution, and a future Supreme Court justice, reminds his audiences [that included President Washington] in his lectures on law of just how the American view of rights differs from the British "contract" view of 1688, the supreme legal theorist William Blackstone and Edmund Burke, and even John Locke and the Magna Carta:


"But even if a part was to be given up, does it follow that all must be surrendered? Man, says Mr. Burke, cannot enjoy the rights of an uncivil and of a civil state together. By an uncivil contradistinguished from a civil state, he must here mean a state of nature: by the rights of this uncivil state, he must mean the rights of nature: and is it possible that natural and civil rights cannot be enjoyed together? Are they really incompatible? Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution? Such seems to be the sentiment of Mr. Burke: and such too seems to have been the sentiment of a much higher authority than Mr. Burke -- Sir William Blackstone. 

...
And must we surrender to government the whole of those absolute rights? But we are to surrender them only -- in trust: -- another brat of dishonest parentage is now attempted to be imposed upon us: but for what purpose? Has government provided for us a superintending court of equity to compel a faithful performance of the trust? If it had; why should we part with the legal title to our rights?"

Here is the fatal flaw of "social contract" theory, the British understanding of rights and government according to Burke and Blackstone and Locke---We barter our natural rights with the government and receive "civil privileges" in return.

Wilson answers his own question, "Must our rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution?"---a "social contract" with government...?

 No!

At first, the stirrings of rebellion among the American colonists came from acts of Parliament abridging their "rights as Englishmen." But in the end, the Americans realized that even their "contractual" rights as Englishmen weren't enough---

 Rights reside in man, not in where a man resides.

This is the American way.

5 comments:

Danl said...

I find it interesting that the term "Natural Law" doesn't show up much in the discourse. My best guess is that the desire to avoid sounding Catholic creates a rhetoric that channels Aquinas but casting it in Enlightenment terms. In places, avoiding Aquinas' methods seems to weaken the logic (Isn't 'self-evidence' another way of saying 'tautology'). But by the time the concepts got to American figures like Wilson, did they even know that their philosophical roots were deeply Catholic?

Jonathan Rowe said...

The English thinkers inherited the tradition from Hooker. But they were citing Locke who tipped his hat to Hooker.

Jefferson sourced the DOI as Aristotle, Cicero, Locke and Sidney.

Tom Van Dyke said...

Mr Rowe is correct--Aquinas had been dead 500 years and already fully absorbed into the Christian west. Natural law was somewhat altered over time but remained a fundamental principle.

Hamilton, 1775:

Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius. Puffendorf, Locke, Montesquieu, and Burlemaqui.9 I might mention other excellent writers on this subject; but if you attend, diligently, to these, you will not require any others.

...

Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensibly, obligatory upon all mankind, prior to any human institution whatever.

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.

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