NATURAL LAW AND THE RIGHTS REVOLUTION

Moral and political philosophers long puzzled over what accounts for our sense of just entitlement, our basic understanding of rights.

In the middle ages, rights derived in part from custom and in part from legal and political authority.

The mass of people, who were generally poor, would claim rights against each other largely on the basis of custom (or what was always done) but also law if they were entitled to its remedies and had access to a court.

The propertied ruling class, on the other hand, claimed broad rights over their social inferiors and a select few rights against their political superiors, the state, and the church.

Of course, the sovereign power, the state, understood the people’s rights as “privileges” that the sovereign magnanimously granted and could thus take away.

A landmark basis for the “rule of law” in Anglo-American societies and a striking claim of rights against the sovereign, Magna Carta (1215) was an early assertion by the propertied class against the state and in defiance of the crown’s notion of “privileges.”

Magna Carta, or the Great Charter, was the culmination of a civil war between England’s King John and the landed aristocracy, who rebuffed his repeated abuses of them and their property.

MC set out a list of civil rights that effectively limited the power of the monarch, thus setting the law above even the king.

While it did not apply to the mass of English people, it was a landmark in the rights revolution that would follow mainly because it asserted a basic but necessary principle: the rule of law, which means simply that no single person is above the law.

Centuries later, philosophers considering what legitimated political rule and what therefore was the optimal system of government built on the legacy of Magna Carta.

To the obvious question about what power sets the law even above the king, they answered that it was a higher, divine power.

On the basis of this reasoning, they claimed that divine law could be discerned in the natural world and, indeed, in human nature and behaviour.

The late seventeenth and eighteenth centuries witnessed an avalanche of philosophical speculation on “natural rights” in this sense.

English philosophers Thomas Hobbes and John Locke argued, for example, that the people were imbued by their creator with inborn natural freedom and thus “consented” to be ruled and subject to a government.

A century later, English exile Thomas Paine, American politician Thomas Jefferson, and French philosopher Jean-Jacques Rousseau would expand on the earlier work of Hobbes and Locke in their justifications for the revolutionary movements in the American colonies and later in France.

The US Declaration of Independence (1776), penned by Jefferson, and the French, Declaration of the Rights of Man and the Citizen (1789), would consciously and explicitly employ a theory and language of natural rights.

When Jefferson wrote, “We hold these truths to be self-evident,” he was arguing for the right to political freedom as a natural right, one that was discernable in the hearts, minds, and actions of people – hence, self-evident or obvious.

The Declaration of Independence famously asserted, “all men are created equal.”

Likewise, the French Declaration of the Rights of Man and the Citizen: “Men are born free and remain free and equal in rights.”

On their face, such statements asserted a universal application of natural rights, but this was not quite the case.

The gendered language, though typical for the time period (and indeed used as late as 1948 in the UDHR), spoke to a deeply gendered conception of rights that denied them to most women.

Moreover, notoriously, the Declaration of Independence was not applied to the large population of African-Americans, most of whom were enslaved at the time of writing.

THE LONG ROAD TO UNIVERSALITY

For all of their unfortunate omissions, Magna Carta and the major rights declarations that followed carried forward a revolutionary idea: that there is a basis on which to assert that, at birth and until they die, all human beings are endowed with certain rights.

On three major paths, people denied a place in Enlightenment-era rights discourse challenged the moral justice of their exclusion.

In the process, they argued that some rights are universal.

Women, from the outset, demanded recognition as persons entitled to equal status.

Racialized people fought for similar recognition.

And working-class people, particularly those denied voting rights on the basis of property, agitated for full citizenship.

The French Revolution, which toppled the French monarchy and ushered in a republic, offered a heavily masculinized conception of rights, as codified in the Declaration of the Rights of Man and the Citizen (the very title is masculinized!).

The actor and writer Olympe de Gouges challenged and satirized this tendency when she published Declaration of the Rights of Women and the Female Citizen (1791).

For her efforts, she was arrested and executed by guillotine.

Crucially, the language of liberty and progressive change associated with the French Revolution influenced one the most important early feminist writers, Mary Wollstonecraft.

Her landmark Vindication of the Rights of Woman (1792) was not only a seminal text in the women’s movement but also a pillar of Enlightenment philosophy on the questions of human nature and politics.

For centuries, women’s struggle for equal recognition focused mainly on their right to control their own property and their bodies and on the achievement of political rights and economic equity.

The broader context was the system of patriarchy that had for centuries done much to limit women and define their lives.

Property and the vote were identified as the starting point to challenging the false assumptions about women that were baked into the patriarchal system, which overwhelmingly benefitted men and valued men’s liberty exclusively.

For its part, the movement for racial equality was not restricted to the United States where slavery was practiced until the 1860s.

In the British and French empires, slaveholding was a central feature for well over two hundred years.

Indeed, the wealth of these empires and arguably their current status as wealthy modern nations was stolen off the backs of slaves.

One of the most important events towards racial justice was the Haitian Revolution (1791-1804), which successfully wrested Haiti – a French slave society – from France.

Led by Toussaint Louverture, a former slave, the revolution coopted the language and values of the French Revolution in asserting racial equality, justice, and political liberty.

Of course, the American struggle for racial justice has been the most dramatic.

The Civil War (1861-65), the long period of Southern segregation and KKK race terror, the civil rights movement of the 1960s, and the current Black Lives Matter protests represent points along a sweeping trajectory aimed at destroying systemic racism and fully realizing the idealism of the American creed, as articulated by Jefferson in the Declaration of Independence.

The exclusion of the mass of people from the enjoyment of basic civil, legal, and political rights extends deep into the ancient period when full citizenship typically required a measure of property and community status.

The major struggle for working class rights, however, is traceable to the early nineteenth century, at the outset of the first industrial revolution.

In Britain, where industrialization first took root, the dramatic shift from centuries-old system of rural agricultural livelihoods for the mass of people to a new urban industrial setting prompted a massive pushback from working people who staffed the new factory jobs and endured squalid living conditions.

Industrialization and urbanization meant that customary rights, work habits, and assumptions about one’s likely path through life were upturned, and new, rigid, harshly enforced work routines replaced them.

HOW UNIVERSALLY APPLICABLE IS THE CONCEPT OF UNIVERSALITY?

An important caveat to keep in mind when thinking about the universality of human rights is that this concept derives heavily – but not entirely – from the Western historical tradition.

In others words, these ideas emerged mainly in the European and American political and philosophical traditions, extending deep into the ancient period, notably the ancient Greek and Roman empires.

In cultural terms, then, human rights as universal moral entitlements are often seen as alien to long historical traditions elsewhere in the world, in Africa, the Middle East, Asia, and often among the world’s indigenous peoples.

Western-style universal human rights, at an essential level, assert the primacy or major importance of the individual rights holder.

Yet, for many societies throughout the world, the individual is not the prime social unit: families and extended kin networks often are.

What this means from the standpoint of rights as moral entitlements is that distinctly different sets of values determine which rights are more important.

Filial piety (respect for elders), for example, is a common value and moral excellence (or virtue) in many parts of the world, such that some societies will place it in order of importance above individual liberty and other values prized in the West.

The problem is not simply the West versus the rest.

Within Western cultures, too, there are those that reject the basic assumptions of human rights as a product of Western liberalism and an attempt to force conformity to a secular ethical system.

This is a crux on which a good deal of contemporary political debate pivots.