George H. Smith discusses the meaning of “natural rights” and some historical aspects of this theory.

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.

Aaron Powell asked if I would be interested in writing something this week on the foundations of libertarianism, so I am interrupting my series on H.T. Buckle to do precisely that. But I am unable to do even a moderately adequate job in just one essay, so I will take two.

As is my wont, I will spend much of this essay (and some of the next) sketching some historical background on the theory of natural rights. I do this not because I am a history buff (though I am certainly that) but because it can be nearly impossible to appreciate a philosophical theory without some knowledge of its provenance. In short, I believe that the theoretical justification for natural rights is interwoven throughout the history of that doctrine. But history is not everything, so in my next essay I shall consider some purely theoretical issues.

There has recently been considerable discussion on Lib​er​tar​i​an​ism​.org about the non‐​aggression principle (NAP) or, alternatively, what Randians frequently call the non‐​initiation of force (NIOF) principle. I trust my readers already understand that neither qualifies as a moral foundation of libertarianism. They are merely ways of formulating a premise that all (or most) libertarians share. If you subscribe to the NAP or to the NIOF principle, then you probably qualify as a libertarian. But there remain the questions: How can these principles be justified? What is their moral foundation?

A theory of natural rights, in my judgment, is the moral foundation of libertarianism, so let’s begin with a clarification of terms.

Historically, the “natural” in “natural rights” referred to two different but interrelated things: first, to moral principles that are based on the nature of man and social interaction, in contrast to rights that are created by customary or man‐​made (“positive”) law; second, to moral principles that can be discovered and justified by the natural faculty of reason alone, without the assistance of divine revelation.

In modern libertarian thought (and in political philosophy generally), to speak of “a right” is to speak of an enforceable moral claim. Thus when we say that a right has been “violated,” we mean that the victim has the option of using physical force against the violator, whether in self‐​defense or for the purpose of restitution and/​or punishment.

The most fundamental problem in the history of classical liberal and libertarian thought was to draw a bright line between persuasion and coercion. (There were various reasons for this concern, but the first and most urgent problem had to do with the desire for religious freedom.) As John Milton put it in the seventeenth century: “here the great art lies, to discern in what the law is to bid restraint and punishment, and in what things persuasion only is to work.” A few decades later John Locke insisted that “it is one thing to persuade, another to command; one thing to press with arguments, another with penalties.” And in the following century, Adam Smith wrote: “We must always carefully distinguish what is only blamable, or the proper object of disapprobation, from what force may be employed either to punish or to prevent.”

The theory of natural rights was specifically designed to establish a bright line between persuasion and coercion. Rights define and delimit the legitimate use of physical force (or the threat of force) in social interaction. Rights are therefore essential elements in the libertarian theory of justice. To violate a right is to commit an injustice. Justice is a “negative” virtue insofar as it demands only that we abstain from using coercion when dealing with other people. As Adam Smith put it in The Theory of Moral Sentiments, “We may often fulfill all the rules of justice by sitting still and doing nothing.”

Libertarianism does not say how we should live our personal lives; it merely says that if we choose to interact with others, we should do so by voluntary means. And it goes on to apply this basic social imperative to the political sphere by following a procedure that I call political reductionism. This means that all legitimate political rights must ultimately be reducible to the rights of individuals. Individuals do not gain special or exclusive rights by combining into groups or by calling themselves a “government.” Thus if a government coerces people in the name of a “right” that no individual could possibly possess, then we know that it is acting unjustly.

Libertarianism, as I said, is concerned with matters of justice, not with personal ethics. Merely because an act is just does not make it moral; this is the essential distinction between “crimes” and “vices.” A sleazy, lowlife character may treat others abysmally, but so long as he does not violate their rights, then his reprehensible conduct should be dealt with by means of voluntary social sanctions, not by means of coercive laws.

Like many libertarians of my generation, I came to libertarianism through the writings of Ayn Rand; and despite some disagreements I still regard her essay “Man’s Rights” as one of the finest brief treatments of this topic ever written. But there are a number of significant similarities between Rand’s approach and those of previous natural law philosophers, such as Hugo Grotius and Samuel Pufendorf. I am not suggesting that Rand borrowed from those sources; on the contrary, she was obviously unfamiliar with them. But as John Hospers once observed, Rand reinvented a number of wheels in moral and political philosophy, and she showed remarkable ingenuity in doing so.

In the early modern period, natural law and natural rights were often discussed in the context of the “law of nations,” or what Jeremy Bentham later called “international law.” The ultimate purpose of such works was to establish objective criteria for a just war. It is therefore understandable why detailed discussions of such criteria became especially popular and influential with the major work by Hugo Grotius in 1625, for this was published during the Thirty Years’ War (1618–1648), one of the most destructive conflicts in European history.

Those modern philosophers who scoff at the notion of a “state of nature,” and who lecture us about its unhistorical nature, often fail to appreciate why the state of nature was such an urgent topic of discussion among seventeenth‐​century philosophers. John Locke expressed the prevailing view of his contemporaries when he wrote:

‘Tis often asked as a mighty Objection, Where are, or ever were, there any Men in such a State of Nature? To which it may suffice as an answer at present: that since all Princes and rulers of Independent Communities all through the world are in a State of Nature, ‘tis plain the World never was, nor ever will be, without Numbers of Men in that state.

Debates over the moral status of individuals in a state of nature played an indispensable role in just war theory, because sovereign nation‐​states were viewed as being in a state of nature vis‐​à‐​vis other nation‐​states. As Emer de Vattel (an influential eighteenth‐​century just war theorist) put it, nations “may be regarded as so many free persons living together in a state of nature.” This means that the reciprocal rights and duties that would apply to individuals in an anarchistic state of nature can also be applied to relationships between sovereign nation‐​states.

A state of nature (or “natural society”) is a society without government, i.e., a society without a common sovereign, or judge, who can adjudicate disputes between members of a society. Described by John Locke as a condition of “pure anarchy,” the state of nature was an extremely useful model that permitted philosophers to explore the extent of natural rights, i.e., those enforceable moral claims that individuals would possess in a “natural” society absent government.

Such considerations were relevant, indeed indispensable, to international law because sovereign nation‐​states, like individuals in a hypothetical state of nature, cannot appeal to a common judge to adjudicate their disputes or to a common sovereign to enforce decisions. The burning questions thus became: Are there objective principles of justice that should govern the relationships between nation‐​states? Are there objective moral principles, knowable to the common reason of humankind, by which we can distinguish just from unjust wars? Or may every sovereign justify aggressive wars, no matter how destructive, in the name of national interest? This latter approach, known as raison d’etat (for reasons of state) and typically associated with Machiavelli, was the chief rival of the natural law philosophers of just war theory.

All this helps to explain why the voluminous writings on international law during the seventeenth and eighteenth centuries typically began with an explanation and justification of the natural rights and duties of individuals. Although there were important differences among the writers on international law, their works, generally considered, provided the infrastructure for a good deal of political philosophy, including the ideas of libertarian‐​oriented philosophers.

Consider two of the most influential writers on international law in European history. In 1625 Hugo Grotius published his massive De Jure Belli ac Pacis (which has been translated as both The Rights of War and Peace and The Law of War and Peace), which spawned a host of subsequent works on the same topic–most notably Samuel Pufendorf’s even more massive work, De Jure Naturae et Gentium (The Law of Nature and Nations, 1672).

John Locke praised both these books as essential reading for those who wish to be “instructed in the natural rights of men, and the original and foundations of society, and the duties resulting from thence.” Grotius and Pufendorf dealt with issues that we “should not barely touch at, but constantly dwell upon, and never have done with.” Locke was especially laudatory of Pufendorf’s book, which he called “the best book of that kind.”

Locke heaped this praise on Grotius and Pufendorf despite the fact that he disagreed with many of their political conclusions. He did so because he understood the value of their detailed discussions of rights. This was the “infrastructure” that I noted earlier, and modern libertarians will find much of their theoretical infrastructure in the same genre of the law of nations, or international law.

Consider, for example, how Grotius approached the subject of individual rights. Grotius based his theory of rights on an ethics of rational self‐​interest. In the words of Richard Tuck (a leading authority in this field), Grotius “went back to the principles of the Stoics…in particular the Stoic claim that the primary force governing human affairs is the desire for self‐​preservation. But he interpreted this desire in moral terms, as the one and only universal right: no one could ever be blamed for protecting themselves.”

Man has an “impelling desire for society,” according to Grotius, but the benefits of social interaction are conditional. Other people can harm us as well as help us, so certain conditions must be maintained if we are to reap the advantages of social interaction. Fortunately, man possesses the unique ability to reason, which Grotius described as “the faculty of knowing and acting in accord with general principles.” Reason thus enables man to formulate and act upon the general principles that set the foundation for a beneficial social order.

Foremost among these conditions is the preservation of one’s suum, i.e., moral jurisdiction and power over one’s life, body, and actions. For Grotius, these spheres of moral jurisdiction are expressed in terms of rights, which define and delimit the use of physical force in society. Grotius would have agreed wholeheartedly with Ayn Rand’s statement, “Individual rights are the means of subordinating society to moral law.

According to Grotius, people form political societies primarily for the purpose of protecting their rights from the violent invasions of others: “the end of society is to form a common and united aid to preserve to every one his own.” Self‐​preservation is a fundamental right that is violated by the initiation of physical force, so self‐​defense is a right “which nature grants to every one.” Rights “do not prohibit all use of force, but only that use of force…which attempts to take away the rights of another.” The right of self‐​defense justifies the retaliatory use of force: “a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack.”

If this approach may be called “egoistic,” owing to its emphasis on the morality of self‐​interested actions, we must keep in mind that it is a universalistic egoism–a form of egoism in which every person has an equal right to pursue his or her self‐​interest within the boundaries of justice. Considered in terms of fundamentals, this approach is the same as that found in the ethical egoism of Ayn Rand.