How does the idea of natural law contribute to the idea of natural rights Quizlet

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Terms in this set (17)

The Age of Enlightenment

Kant: 'man's emergence from his self-imposed immaturity ... the inability to use one's understanding without guidance from another'.

intellectual movement - liberation of intellect from the authority of the church and state. Spanned across science, philosophy, art.

produced empiricism - ie rejection of the supernatural in favour of evidence of the senses and rationality - it questioned all metaphysical and/or mystical teachings.

Prominent enlightenment theorists

England - NEWTON, Thomas HOBBES, John LOCKE

Scotland - David HUME, Adam SMITH,

France - Denis DIDEROT, Jean-Jacques ROSSEAU, VOLTAIRE

Germany - goethe, bach, mozart

ius & Right

key transformation necessary for enlightenment

older natural law - what is just law determines rights.
natural rights theory - subjective natural rights determine the law.

this is the transformation of personal entitlement from ius to subjective claim-right.

requirement for enlightenment

needed a natural law theory that is 'natural' irrespective of faith - a secular NL theory. such was needed to counter growing moral skepticism.

needed to find a moral basis for the binding force of international law (ius gentium) in a Europe deeply divided by religious and colonial wars.

Beginnings of secular natural law

Theological beginnings - traceable to the Conciliar Movement(14-15th cent);

2 key ideas;
1) universal church is made of the faithful, not the clergy - god speaks through the congregation, not the pope. this introduced a form of constitutional democracy to the Church
2) there are moral principles that must be accepted through sheer necessity.

2 key scholars
William of Ockham
Duns Scotus

The conciliar movement was defeated by the church and democracy never actually took place. however some of its ideas survived and provided a seed for enlightenment theorists.

William of Ockham's approach to NL

3 kinds of NL:
1. Laws we can derive logically from self-evident propositions such as: 'Exercise your will according to reason' and 'Avoid all blameworthy acts'

2. Natural equity that prevailed in the age of innocence

3. Moral law of our own era by evident reason, the law of nations and from human behavior

duns scotus

2 senses of NL:
1) strict sense = law of the first 2 Commandments (basically fidelity to god)

2) broad sense - not self-evident
laws are are only 'exceedingly in harmony' with what is self-evident eg. commands against murder, adultery, theft - these other commandments are natural law in the broad sense. Private property ownership - consonant with peaceful living so is natural law in the broader sense.

Natural Rights - an empircal observation

Observe the following facts;
1.To live as a human being one needs personal safety, material resources and freedom to pursue their life ends
2.Human cannot survive and prosper except in cooperative social groups
3.Hence there must be rights that allow persons to survive and flourish while respecting the same rights of others
4.These rights can only be protected by an authority with political power
5.That power is created by popular consent

3 prominent natural rights theorists

1) Hugo Grotius
2) Thomas Hobbes
3) John Locke

Hugo Grotius (1583-1645)

Dutch
Basis of rights - instinct of self-preservation and the need of social life for humans to survive. There is law natural to humankind irrespective of faith. This law confers individual rights to self preservation compatible with similar rights of others.

Thomas Hobbes (1588-1679)

First modern philosopher to assert the priority of 'right' over law.
The most fundamental proposition of English law that a person may do anything that the law does not forbid and refrain from any act that the law does not require.

Law does not create right, rather it dictates what the law ought to be.
Right confers liberty whereas law confines it

Hobbes on state of nature

Opposed popular state of nature theory (ie sovereign has birthright to rule) - preferred a modified version of social contract; people enter into a social contract amongst themselves, not with the sovereign - the people collectively decide to give up their power to the sovereign. This power is terminated when the sovereign is unable to provide protection due to weakness or corruption (however hobbes does not say how termination occurs).

Hobbes on natural rights

Core of his natural rights idea:
"The right of nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgement and reason, he shall conceive to be the aptest means thereunto."

he identifies natural rights with the law of nature.

John Locke 1632 - 1704

experience is the only source of knowledge
knowledge is not innate - everything in our mind is derived from experience.

thus experience leads people to develop political insitutions
huamns are God's creatures and hence are his property - his natural rights are basd in gods will.
no person may therefore harm themselves or another person, every person has the right to life, liberty and property, every person owns their body and mind and any property converted through their labour.

Locke on the state of nature and social contract

Problem with the state of nature: no civil government - hence every person is their own law interpreter, judge and enforcer

he also promoted social contract theory - however it differs from Hobbes in that the contract is b/w the people and the sovereign. However the mandate (authority) of the sovereign is limited to establishing and administering laws, resolving legal disputes, securing the territory from foreign invasion.

Legacy of natural rights theorists

this notion of inviolable natural rights became the foundation of consitutional movements of the 18th/19th cent.
inspired Declaration of American Independence, US Bill of RIghts, Universal Declaration of Human Rights etc.

it marks a breach from older theological traditions - promotes a cross-culturally accepted set of ideas on fundamental rights of ALL humans.

positivist objection to natural rights

natural rights are moral claims - they only become law by human enactment.

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