|Preamble section 1:|
|Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,|
Natural law theory emphasized duties imposed by God on every human society in an orderly cosmos. In time, society's duties came to be seen as natural rights for the individual. Expressing moral concern in the natural rights rather than the natural law idiom involves a significant narrowing of the content possibilities by bringing in the idea that the relevant moral constraints are based on moral concern for certain subjects: right-holders. By violating a natural right, one wrongs the subject whose right it is. These subjects of natural rights are viewed as sources of moral claims and thereby recognized as having a certain moral standing and value.
The natural law idiom contains no such idea: It need not involve constraints on ones conduct toward other subjects at all and, even if it does, need not involve the idea that by violating such constraints one has wronged these subjects one may have wronged God, for example, or have disturbed the harmonious order of the cosmos. In ruling out these (formerly prominent) alternative ideas, the shift from natural law to natural rights language constitutes a secularization which facilitates the presentation of a select set of moral concerns as broadly sharable in a world that has become much larger and more heterogeneous (Pogge, How Should Human Rights Be Conceived, 189).
It was difficult, however, to fill early natural rights with agreed content, other, perhaps, than the rights of "conscience" - to worship the true God and refuse to commit "unjust' acts (Henkin, The Rights of Man Today, in Human Rights, 7). During the 18th century, the so called Age of Enlightenment, a growing confidence in human reason and in the perfectibility of human affairs led to a more comprehensive expression of natural law and universal order. Particularly to be noted are the writings of the 17th century English philosopher John Locke arguably the most important natural law theorist of modern times and the works of the 18th century Philosophes centered mainly in Paris, including Montesquieu, Voltaire and Jean-Jacques Rousseau.
Locke argued in detail, mainly in writings associated with the Revolution of 1688 (the Glorious Revolution,) that certain rights self-evidently pertain to individuals as human beings (because they existed in the state of nature before humankind entered civil society;) that chief among them are the rights to life, liberty (freedom from arbitrary rule,) and property; that, upon entering civil society (pursuant to a social contract,) human kind surrendered to the state only the rights to enforce these natural rights, not the rights themselves; and that the states failure to secure these reserved natural rights. (the state itself being under contract to safeguard the interests of its members ) gives rise to responsible, popular revolution.
The Philosophes, building on Locke and others and embracing many and varied currents of thought with a common supreme faith in reason, vigorously attacked religious and scientific dogmatism, intolerance, censorship, and social-economic restrains. They sought to discover, and act upon universally valid principles harmoniously governing nature, humanity, and society, including the theory of the inalienable Rights of Man that became their fundamental ethical and social gospel (Burns Weston, Human Rights, 20 Encyclopedia Brittanica (15th ed. 1992) in Steiner and Alston, 324-325).
As Henkin explains, the American and French Revolutions, and the declarations that expressed the principles that inspired them, took "natural rights" and made them secular, rational, universal, individual, democratic, and radical. For divine foundations for the rights of man they substituted (or perhaps only added) a social-contractual base. The rights of man are not (or not necessarily) divinely ordained, not (or not necessarily) divinely conceived: they are God's gift in that they result from his creation. They are natural in the sense that nature (and nature's God) created and inspired man's reason and judgement. They are natural also in a different sense, in that they are man's in the "state of nature," and he brings them with him into society. The individual was autonomous, sovereign, before government was established, and he, and other individuals taken together - "the people" - remain sovereign under any government, for their sovereignty is inalienable, and government is only by consent of the governed.
The people gave up some of their authority to government for limited purposes, retaining the rest as rights and freedoms under government. Rights originate with and are retained by the people; they are not granted to them. Some rights, indeed, could not be subordinated to government even if the people wished, because these rights are inalienable. Man retains rights against government in principle by virtue of his social contract, though that, we know, is a hypothetical construct, not a historical fact; a justification, not an explanation (Henkin, The Rights of Man Today, in Human Rights, 7-9).
Peter Danchin, Columbia University