Smith discusses Thomas Paine’s theory of 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 Part 1 of Rights of Man (1791) Thomas Paine rebuts many of Edmund Burke’s allegations about the early stages of the French Revolution. Part 1 also contains the most complete explanation of natural rights that Paine ever published–a presentation that impressed Thomas Jefferson, among many others–and it is this feature that I shall discuss in this installment and in the one to follow.

Paine’s theory of rights exemplifies both the strengths and weaknesses of the radical republican theory of rights and government. Although well suited to demolish Burke’s theory of prescriptive rights, Paine’s approach fails to solve a key problem posited by Burke–an objection that went back at least to the 1640s, when Sir Robert Filmer argued that those who begin with natural rights in a state of nature (a society without government) are forever doomed to remain in that anarchistic condition, with no theoretical means to justify government. Regarding those who defend those abstract principles known as the Rights of Man, Burke wrote (in Reflections on the Revolution in France , 1790):

Whilst they are possessed by these notions, it is vain to talk to them of the practice of their ancestors, the fundamental laws of their country, the fixed form of a constitution, whose merits are confirmed by the solid test of long experience, and an increasing public strength and national prosperity. They despise experience as the wisdom of unlettered men; and as for the rest, they have wrought under‐​ground a mine that will blow up at one grand explosion all examples of antiquity, all precedents, charters, and acts of parliament. They have “the rights of men.” Against these there can be no prescription; against these no agreement is binding: these admit no temperament, and no compromise: any thing withheld from their full demand is so much of fraud and injustice. Against these their rights of men let no government look for security in the length of its continuance, or in the justice and lenity of its administration. The objections of these speculatists, if its forms do not quadrate with their theories, are as valid against such an old and beneficent government as against the most violent tyranny, or the greenest usurpation. They are always at issue with governments, not on a question of abuse, but a question of competency, and a question of title.

Although Paine fails to address directly the crucial objection that natural rights will logically render all governments illegitimate, he does deal with the problem indirectly in his constructive theory of rights and government, so let’s take a look at his approach.

Against Burke’s theory of prescriptive rights, according to which members of the current generation are morally and juridically bound by the fundamental political decisions of their ancestors, Paine argues that each member of each generation is born with the same natural rights as his or her ancestors. No person or group has the right to rule beyond the grave.

Every age and generation must be as free to act for itself, in all cases, as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave, is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. The parliament or the people of 1688, or of any other period, had no more right to dispose of the people of the present day, or to bind or to controul them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or controul those who are to live a hundred or a thousand years hence. Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this world, he has no longer any authority in directing who shall be its governors, or how its government shall be organized, or how administered.

No appeal to the supposed authority of antiquity and precedents can withstand critical scrutiny, according to Paine. Every generation has its ancestors and precedents, so it is arbitrary to pinpoint a certain point in time and declare that to be the authoritative source of our political obligations.

Those who lived a hundred or a thousand years ago, were then moderns, as we are now. They had their ancients, and those ancients had others, and we also shall be ancients in our turn. If the mere name of antiquary is to govern in the affairs of life, the people who are to live an hundred or a thousand years hence, may as well take us for a precedent, as we make a precedent of those who lived an hundred or a thousand years ago. The fact is, that portions of antiquity, by proving everything, establish nothing. It is authority against authority all the way, till we come to the divine origin of the rights of man at the creation. Here our enquiries find a resting‐​place, and our reason finds a home.

When God (i.e., the deistic God of Nature) bestowed equal rights on his creatures, he did not restrict those rights to the first humans and then demand that future generations follow their decisions. Rather, each generation is a new creation, in effect, endowed with the same rights as earlier generations, and the same reasoning will apply to future generations.

The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead, it is the living only that has any right in it. That which may be thought right and found convenient in one age, may be thought wrong and found inconvenient in another. In such cases, Who is to decide, the living, or the dead?

We now come to an obvious question: If one generation cannot legitimately bind future generations, then why should members of the present generation obey laws to which they did not personally consent? Here Paine appeals to tacit consent, a standard escape hatch in individualist versions of social contract theory.

It requires but a very small glance of thought to perceive, that altho’ laws made in one generation often continue in force through succeeding generations, yet that they continue to derive their force from the consent of the living. A law not repealed continues in force, not because it cannot be repealed, but because it is not repealed; and the non‐​repealing passes for consent.

Paine has nothing but contempt for Burke’s complex theory of political obligation, according to which we should revere not only our ancestors but also kings, parliaments, nobles, state clergy, and the like. With these intermediaries Burke created an “artificial chasm” between man and his maker and erected “a succession of barriers, or sort of turnpike gates, through which [man] has to pass” in order to fulfill his authentic duties. Paine protests, while appealing (like many libertarians of his day) to the Golden Rule as the fundamental imperative of social interaction.

The duty of man is not a wilderness of turnpike gates, through which he is to pass by tickets from one to the other. It is plain and simple, and consists but of two points. His duty to God, which every man must feel; and with respect to his neighbour, to do as he would be done by. If those to whom power is delegated do well, they will be respected; if not, they will be despised: and with regard to those to whom no power is delegated, but who assume it, the rational world can know nothing of them.

Perhaps the most interesting and valuable part of Paine’s discussion is his distinction between natural and civil rights. Civil rights, Paine contends, flow from natural rights; civil rights are the means by which some natural rights are secured in a social context. “Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured. His natural rights are the foundation of all his civil rights.”

A few words will explain this. Natural rights are those which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others.—Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation, some natural right pre‐​existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection.

The foregoing remarks may seem tame enough, but, as we shall see, their radical implications become apparent as Paine unravels his theory. In stark contrast to Burke, who argued that people surrender all of their natural rights in society and must thereafter rely on conventional (prescriptive) rights, Paine argues that individuals surrender none of their natural rights in society; rather, people merely delegate the power to protect and enforce those natural rights that they are unable to secure as individuals.