Interesting Article On Natural Rights.

I wanted to share the following excerpt. It's not important in itself but it is interesting. It's about the theory of natural rights. Because I heard quite a long time ago that natural law and natural rights are no longer found in modern philosophy. Most philosophers now, I read recently, are moral realists. But they don't think our rights or moral laws come from nature (lions eating elk, and sometimes each other) or the survival of the fittest. It comes from the human heart and we all know what is right, but not by observing that of course. But there is the theory of natural rights in law, as opposed to legal positivism, which is still used today. And you are right, there are things that are always wrong. Like slavery, oppressing women, burning heretics, torture, etc. So legal positivism (thinking if it's legal it's right) we know is a horrible idea. But most law dictionaries still call it that, natural law theory.

According to the Law Dictionary by Steven H. Gifis (which according to Google is a widely used reference guide designed as a quick-reference tool for law students, legal professionals, and laypeople to understand complex legal terminology) this is the definition of that use now:

NATURAL LAW law which so nessarily agrees with the nature and state of man, that without observing its maxims, the peace and happiness of society can never be preserved. Knowledge of natural laws can be attained merely by the light of reason, from the facts of their essential agreeableness with the constitution human nature. Natural law exists regardless of whether it is enacted as positive law, although there may be instances where natural law cannot be judicially enforced.

 

Thanks for tackling a complex subject which may be of interest mainly to legal scholars, but is very topical at the moment. The U.S. has a government which seems to its critics to flout constitutional norms while expecting the rest of us to obey every pronouncement from its Leader as valid law. The disputes over natural law and natural rights, known in the trade as the "separation of law and morals", concerns whether or not moral criteria (justice, liberty, etc.) can/ must be used to determine the validity of enactments by a government..

Natural law and natural rights aren't the same. Natural law has been around since the Greco-Roman Stoics of the first century BCE, who saw it as derived from the natural order of things. As Cicero explained: "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely." https://www.loebclassics.com/view/m...publica/1928/pb_LCL213.211.xml?readMode=recto It's necessary elements or distinguishing characteristics were rationalism (a strong faith in the power of reason as a guide to truth), a functionalist approach to law as revealing an underlying purpose to nature); functionalism (the idea that everything in nature has a purpose or proper function); moralism (the notion that law and morality can't be separated; and essence (the idea that law and morality are determined by a person or thing's "essence" or predetermined universals, not by human choice or will.

Christian theologians like Saints Paul, Augustine and Aquinas took over the idea as one way in which God revealed his will to humans, the other , of course, being revelation, which is a form of positive law-- a product of God's choice or will. Thus, we have in jurisprudence the on-going debate over natural law, based on discovery, and legal positivism, based on the will or choice of a sovereign authority (i.e., God. Christian theologians used natural law to explain the immorality of homosexuality and masturbation (interfering with nature's imperative of "doing what comes naturally"--Paul extending the Jewish positivist taboo against "men lying with men" to lesbianism (Romans 1:26). Sex is nature's way of replenishing the human race, and if Adam and Steve or Lilith and Eve can't find opposite sex partners to love, they need to get with the program. Natural law became central to Roman Catholic moral teachings about the sinfulness of homosexuality, masturbation, and other "perversions" (their opinion, not mine) of a "natural" biological function. It also was invoked to maintain that justice was an essential criterion for judging the validity of man-made laws.

But the notion of natural rights didn't come about until the Enlightenment of the late seventeenth and eighteenth century, when individualism had taken hold. Natural rights are those which a person supposedly has from birth, just by being human and not because any human authority gave them to him/her. Such rights are considered inalienable, since they were conferred by birth instead of by a human authority, as a kind of individual property.This view is enshrined in the U.S. Declaration of Independence, which was strongly influenced by the seventeenth century philosopher John Locke.Those were the days before relativism and skepticism cast doubt on reason itself. In subsequent centuries, leading thinkers of the day were more skeptical and critical of both natural law and natural rights, as well as human reason. In 1776, after Thomas Jefferson's Declaration of Independence put the natural rights theory forward in defense of the American Revolution, the British utilitarian philosopher, Jeremy Bentham, wrote a rebuttal (Short Review of The Declaration ) arguing that its natural rights claims to be "subversive of every actual or imaginable kind of Government." Later he called natural law itself "nonsense on stilts". Bentham thought that morality should be aimed at "the greatest happiness for the greatest number", and that that could best be achieved by a democratic government that would be uninhibited by concerns about what Nature or Nature's God wanted. Natural law and natural rights, he thought, were too susceptible to subjective judgments about what was "natural" or rational to serve as the ultimate guide as to what the government could and couldn't do. A later British utilitarian, John Austin, established the school of jurisprudence known as legal positivism which maintained that law was essentially a command of the sovereign, and that the only proper considerations concerning its validity were: did it come from the established governmental authorities and follow the established lawmaking procedures. You might think the law is harmful, stupid, or unjust, and you may be right. "But if you think it is not the law, we will prove you wrong by hanging you by the neck."

As Jimbee has told us, natural law and natural rights went out of style, as utilitarian thinking became predominant. But in the twentieth century they underwent something of a revival by a minority of legal scholars in response to Nazis and segregationists. Ordinarily, being a valid law carries a presumption that citizens should give it a certain respect and a duty to obey it. The debate between two law professors, H.L.A. Hart of Oxford and Lon Fuller Harvard (Harvard Law Review, 1958). concerned whether or not Nazi laws were laws. Hart, a British positivist, maintained that the Nazi laws, while monstrous, were still valid laws because they were made by government authority. Fuller argued, to the contrary, that many of the Nazi laws were invalid because they failed to perform the proper function of law, which he said was to order human behavior according to rules. Despite their claims to being about "law and order", the Nazis were essentially lawless and disorderly in recognizing such things as secret laws and ex post facto laws, as valid. Law was whatever der Führer said it was at a given time-subject to change without notice. No one knew when there might be a "knock at the door" by the Gestapo. Here Fuller identifies a functionalist concept of natural law, and argued that any body of rules that did not serve to promote regularity and order in society should not be dignified by the name "law". Fuller's functionalist/ institutionalist concept of natural law, which he called "the morality of law", was modest by comparison to our usual concept of "morality". The full blown claims of Saints Augustine and Aquinas about the imperative of justice. Martin Luther King, in his Letter from Birmingham Jail, revived the more substantive, expansive version to challenge segregation laws. "I agree with Saint Augustine", he said. that "an unjust law is not a law at all. "

But what is justice? People disagree, and that can be a problem if stability is the main goal., which it seems to be for the positivists. Any questions?