Smith concludes this series with more observations about James Mackintosh’s defense of natural rights.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In my last essay I sketched James Mackintosh’s defense of natural rights, as presented in Vindiciae Gallicae (1791)–one of the best replies to Edmund Burke’s Reflections on the Revolution in France (1790). The following is a key part of that defense.

Justice is expediency, but it is expediency, speaking by general maxims, into which reason has concentrated the experience of mankind. Every general principle of justice is demonstrably expedient, and it is this utility alone that confers on it a moral obligation. But it would be fatal to the existence of morality, if the utility of every particular act were to be the subject of deliberation in the mind of every moral agent. A general moral maxim is to be obeyed, even if the inutility is evident, because the precedent of deviating more than balances any utility that may exist in the particular deviation. Political first principles are of this description. They are only moral principles adapted to the civil union of men. When I assert that a man has a right to life, liberty, etc., I only mean to enunciate a moral maxim founded on general interest, which prohibits any attack on these possessions. In this primary and radical sense, all rights, natural as well as civil, arise from expediency. But the moment the moral edifice is reared, its basis is hid from the eye for ever. The moment these maxims, which are founded on an utility that is paramount and perpetual, are embodied and consecrated, they cease to yield to partial and subordinate expediency. It then becomes the perfection of virtue to consider, not whether an action be useful, but whether it be right.

According to Mackintosh, the “inflexibility of general principles” is even more essential in political decisions than in personal morals. For if we concede that natural rights are to be sacrificed to expediency in particular instances, we must consider the question: Who is to decide when individual rights should be sacrificed to expediency? Such decisions inevitably will be made by political rulers who wish to preserve and enhance their own power, rulers whose interest “is linked to the perpetuity of oppression and abuse.” Thus, because rulers will be acting as judges in their own cause to further their own interests, it is absolutely essential that their decisions “be bound down by the strictest rules.”

Far more necessary then is the obedience to general principles, and the maintenance of natural rights, in politics than in the morality of common life. The moment that the slenderest infraction of these rights is permitted for motives of convenience, the bulwark of all upright politics is lost. If a small convenience will justify a little infraction, a greater pretended convenience will expiate a bolder violation. The Rubicon is past. Tyrants never seek in vain for sophists. Pretenses are multiplied without difficulty and without end. Nothing, therefore, but an inflexible adherence to the principles of general right can preserve the purity, consistency, and stability of a free State.

To claim, as Burke did, that individuals surrender all their natural rights to government, which then decides how those rights shall be modified and distributed (if at all) in civil society, is “to sanctify the most atrocious despotism.” The primary duty of lawgivers “is to assert and protect” the Rights of Man, so the French National Assembly deserved praise, not Burke’s ridicule, for its “solemn declaration of these sacred, inalienable, and imprescriptible rights.” Such rights enable citizens to assess the actions of their government with objective standards and, when necessary, to check the natural tendency of rulers to abuse their power.

The French revolutionaries learned these principles (“among other lessons”) from America, a country where “declarations of the rights of men originated from the juvenile vigor of reason and freedom in the new world, where the human mind was unencumbered with that vast mass of usage and prejudice, which so many ages of ignorance had accumulated, to load and deform society in Europe.” Americans understood that the Rights of Man are “perhaps the only expedient that can be devised by human wisdom to keep alive the public vigilance against the usurpation of partial interests, by perpetually presenting the general right and the general interest to the public eye.”

According to Mackintosh, Burke’s defense of conventional rights “legitimates every tyranny.” If any government may appeal to conventional rights to justify its actions, then all governments, no matter how despotic, are equally legitimate, because in Burke’s theory only the government may interpret legal precedents and conventions. Even if we insist, as Burke did, that a government should abide by its own constitution (i.e., its fundamental system of laws, precedents, and prescriptive rights), the nature of that constitution is immaterial in Burke’s scheme. So long as tyrants “tyrannize by precedent, and oppress in reverent imitation of the models consecrated by the usage of despotic predecessors,” then “there is no remedy for the oppressed, since an appeal to the rights of Nature were treason against the principles of the social union.”

This notion has an especially perverse implication, for consider: If an enlightened monarch were to ascend the throne of an absolute, despotic government, and if that king were to jettison the traditional legal precedents and conventions of his nation in a sincere effort to protect the natural rights and freedoms of his subjects, then he would be acting illegitimately by Burke’s standard–so only then, as that freedom‐​loving monarch tried to diminish oppression by contravening legal precedents, could we condemn him. (Burke had an answer–of sorts–to this kind of objection, but it does not appear in Reflections on the Revolution in France. In typical Burkean fashion, it was presented in vague terms, long on rhetoric and short on argument.)

Mackintosh alleges that Burke’s theory is inconsistent with the legal system of a free country. If individuals have surrendered all their rights to government, then laws should stipulate which rights a given government grants to people, not which rights it deems necessary to deny. Yet this is not what we find in the legal systems of free nations, in which the criminal code “consists of prohibitions, and whatever is not prohibited by the law, men every where conceive themselves entitled to do with impunity.” In thus assuming that people should be free to act except in cases of specific legal prohibitions, these legal codes implicitly presuppose a natural right to freedom (even when that right is not explicitly acknowledged or completely respected) by assuming that people should be free to act whenever the law is silent. Hence the rights claimed by “magistrates and public officers,” not the rights of individuals, are truly “creatures of society.” We see this in the fact that rulers “are guided, not by what the law does not prohibit, but by what it authorizes or enjoins.” Rulers in free countries may exercise only those powers that are expressly authorized by law, whereas private citizens may take any actions that are not expressly prohibited by law. This asymmetry, Mackintosh claims, is a practical illustration of the primacy of natural rights in a free society, in contrast to the secondary, conventional rights of rulers.

Mackintosh also accuses Burke of inconsistency, quoting as evidence this passage from Reflections on the Revolution in France: “Whatever each man can do without trespassing on others, he has a right to do for himself, and he has a right to a fair portion of all that society, with all its combinations of skill and force can do for him.” Is this Burkean right universal, Mackintosh asks? If it is, then it cannot be conventional, “for conventions must be as various as forms of government, and there are many of them which do not recognize this right, nor place man in this condition of just equality.” Consider the institution of slavery, which Burke vehemently opposed. Those many governments that traditionally tolerated slavery did not recognize the Burkean right of equal treatment under the law, “for a slave is neither entitled to the fruits of his own industry, nor to any portion of what the combined force and skill of society produce.” But if, in contrast, the Burkean right is not universal, then it must be conventional. That is to say, the equal right of every person to the fruits of his own industry is effectively “no right at all, and it can only be called a privilege accorded by some Governments, and withheld by others.”

Thus did Mackintosh challenge Burke to justify his opposition to slavery. Does the justice or injustice of slavery vary according to the precedents and conventions of a given legal system? Is slavery rendered just when legal conventions based on prescriptive rights proclaim it to be so? Mackintosh didn’t believe that Burke would accept this reasoning (and he was probably right). Instead, “the remnant of those metaphysic rights which Mr. Burke holds in such abhorrence” were appealed to by Burke himself in matters that he regarded as vitally important. Only, in other words, when natural rights led to conclusions that Burke personally opposed did he reject them as pernicious nonsense.

Although Mackintosh had other worthwhile things to say about natural rights and Burke’s opposition to them, I shall rest content with my summary, while urging readers to consult Vindiciae Gallicae for themselves. (The complete text may be found here.)

Burke’s most ardent defenders will probably claim that Mackintosh was unfair to Burke, and that I have not sufficiently explained the subtleties of Burke’s approach so that readers can fully appreciate his brilliance. Be that as it may, I agree with the common criticism that Burke frequently substituted rhetoric for reasoning. Indeed, he expressly wrote Reflections as an emotional appeal to his fellow Brits, who might otherwise succumb to the dangerous principles of natural rights and use them to justify radical changes in the British government.

No critic appreciated the purpose and target audience of Reflections better than Thomas Paine. Thus, having concluded this series, my next essay will be the first in a new series on “Thomas Paine v. Edmund Burke.”