Natural Rights and the Moral Order

Aug 2, 2011 by

In the founding of any nation and drafting of any constitution, a People must at some point consider what rights it means to guarantee its citizens.  The question of rights has risen to the forefront of debate in political philosophy with the introduction of human rights in international law.  Whether or not such rights actually exist is a complex question; and yet, natural rights are constantly appealed to in constitutional law and founding documents.  As Thomas Jefferson famously states in the American Declaration of Independence:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

What various countries have declared to be fundamental rights seems to depend in large part on their history, culture, religion, or general sense of morality.  Further, in institutionalizing specific rights, a constitution solidifies that moral framework, and even a certain conception of truth, for the People.  In designating things as rights and, moreover, as natural rights, a constitution states much more than what people can do under government protection.  Rather, the institutionalization of natural rights brings forth a system of morality and perception of truth for the People.  By the delineation of rights in a constitution, values are established and the People legitimize what they as a nation will believe.  In this way, a constitution is more than a mere legal or political document; in fact, it is a moral statement emanating from the recognition of certain prior rights.

Still, there is a distinction between the moral foundation established by a People in a constitution and actual natural rights.  While a moral order is exclusive to the nation, natural rights are universal, applying to all people equally by virtue of their humanity.  Although distinct, the former frequently serves as a lens through which members of a society (including constitutional framers, legislators, judges, and voters) view the latter.  In other words, a nation’s understanding of natural rights (or any higher law) is manifest in the “moral reasoning” antecedent to and emanating from a constitution.  It is this moral order that makes natural rights relevant to a particular society and provides direction in the pursuit of such rights.

As one purpose of a constitution is, arguably, to represent a People’s collective perception of what is right and what rights are, it may not come as a surprise that many in India have been hesitant to accept their secular constitution after a long history of what has been both a political and religious caste system.  In contrast, the German Basic Law was designed with the clear and unapologetic purpose of protecting and proliferating a belief in human dignity in the aftermath of World War II, an end that does capture the collective moral conscience of the German people.  Ireland also provides a useful example, their constitution still reflecting the social teachings of the Catholic Church despite the continual secularization of the Western world.  Constitutions are directly (if not consciously) responsible for the creation of a unique constitutional order.  Such need not necessarily be based on religion, as in the Irish case, but always on specific values.  Even in the mere articulation of rights, values and a certain objectivity are expressed; and even in the very formation of a constitution, one sees the implicit values of self-determination and autonomy of the People.

Framers of constitutions must realize the great power and influence they have not only over government structure and procedures, but over the conscience of a nation; for those things designated as rights are at the very heart of the moral fabric of any society, and it is to this that people will look when attempting to distinguish natural rights.  In this way, a constitution decides and defines for a nation what natural rights are and, moreover, what are the most important natural rights.  And so, a constitution is not only legally binding, but practically binding to the moral conscience developed in a People. Whether the People acknowledge such rights in their constitution (and which rights they choose to emphasize) can speak volumes about a nation, its history, and even its future.

This is not intended to take a relativistic approach to natural rights, but rather demonstrate that a given People’s conception of natural rights is affected by and, in turn, affects the development of a unique moral order.  In truth, such need not be contradictory to a confidence in humanity’s ability to truly understand natural rights.  As Hadley Arkes says of the early American republic in Beyond the Constitution:

[T]his willingness to argue over everything flourished at a time when the political class in the country had never been more unified in their conviction that there were indeed laws of reason that allowed them to judge the soundness of the arguments. On either side, they were convinced that the arguments of their opponents could be exposed in the end as false, to anyone whose reason was not clouded by passion or partisanship. (246)

The mere attempt to establish a moral order seems to presuppose a belief in humanity’s ability to realize Truth.  Nevertheless, the unique moral lens through which a People might view natural rights still allows for an ordering of values and emphasis on certain rights.  Of course, if natural rights do indeed exist, it follows that certain nations are probably in violation of them.  At the same time, it would seem that different nations with individual moral orders may all be in genuine and effective pursuit of the higher law.

Leave a Comment

You must be logged in to post a comment.

This site is protected by Comment SPAM Wiper.