Theories of Rights and the Declaration of Independence
  Text and background

http://www.americanheritage.org/High_Extraction_4-Declaration_of_Independence_TX.pdf

United Nations: Universal Declaration of Human Rights: http://www.un.org/Overview/rights.html

Information below from Wikepedia

Natural Rights

Natural rights are universal rights that are seen as inherent in the nature of the world, and not contingent on human actions or beliefs. The theory of natural rights was developed from the theory of natural law during the Enlightenment in opposition to the divine right of kings, and provided a moral justification for liberalism.

The concept of a natural right can be contrasted with the concept of a legal right: A natural right is one that is claimed to exist even when it may not be enforced by the government or society as a whole, while a legal right is a right specifically created by the government or society, for the benefit of its members. The question of which rights are natural and which are legal is an important one in philosophy and politics. Critics of the concept of natural rights argue that all rights are legal rights.

Conceptions of natural rights

Many philosophers and statesmen have designed lists of what they believe to be natural rights; almost all include the right to life and liberty, as these are considered to be the two highest priorities. H.L.A. Hart has argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. The existence of natural rights has been asserted by different individuals on different premises, such as a priori philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through “reason” alone. Some thinkers like John Locke emphasized “life” as primary. Indeed, Locke’s influential defense of the right of revolution is represented in the Declaration of Independence, where Thomas Jefferson cited “life, liberty, and private property” in his initial drafts. For political reasons, the committee approving the Declaration later substituted “pursuit of happiness” for property. The Declaration of Independence also based natural or “unalienable rights” on human nature, arguing that it was “self-evident” that human beings by their very nature seek life, liberty, and happiness. This assumed, like Hobbes, Locke and Jean–Jacques Rousseau - also a major social contract thinker - the right of human beings to follow their nature as a natural right antedating and not bestowed by government.

The first philosopher who fully made natural rights the source of his moral and political philosophy was Thomas Hobbes (1588-1679). Hobbes argued that it is human nature to love one’s self best and seek one’s own good (this is a view known as psychological egoism). Since it is unavoidable ("necessity of nature") for human beings to follow their nature, it becomes a right to do so. According to Hobbes, to deny this right is to deny that we have a right to be human, which would be absurd, just as it would be absurd to demand that carnivores reject meat or that fish stop swimming. Therefore, we have no obligations by birth or nature, but only unlimited rights - leading to a situation known as the “war of all against all”, in which human beings have to kill, steal and enslave others in order to stay alive. Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, causing human life to be “solitary, poor, nasty, brutish, and short”. As such, humans have chosen to give up (some of) their natural rights and created moral obligations in order to establish political and civil society. This is one of the earliest formulations of the theory of government known as the social contract.

Hobbes objected to the attempt to derive rights from “natural law,” arguing that law ("lex") and right ("jus") though often confused, signify opposites, with law referring to obligations, while rights refer to the absence of obligations. Since by our (human) nature, we seek to maximize our well being, rights are prior to law, natural or institutional. This marked an important departure from medieval natural law theories which gave priority to obligations over rights. However, some thinkers such as Leo Strauss, maintained that Hobbes kept the primacy of natural law or moral obligation over natural rights, and thus did not fully break with medieval thought.

John Locke (1632-1704), was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke was a major social contract thinker, who argued that all legitimate governments must be based on consent.

Criticism

Critics have argued that natural rights do not exist (in the sense that all rights are invented by human beings and are therefore by definition “artificial"). The attempt to derive rights from “natural law” or “human nature” is an example of the is-ought problem in philosophy, and, as noted above, different philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to seperate truly axiomatic rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes’ account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so). [1] Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:

We are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don’t tell me it offends the universe.

Positive and Negative Rights

Within the philosophy of human rights, some philosophers and political scientists see a distinction between positive and negative rights. According to this view a positive right imposes an obligation on others and the state to do certain things, while a negative right merely obliges others and the state to refrain from certain activities.

Negative rights are usually characterised as civil or political in nature and held to include such rights as the right to freedom of speech, property, habeas corpus, freedom from violent crime, freedom of worship, a fair trial, freedom from slavery and the Right to bear arms. Positive rights are characterised as social or economic and held to include rights such as the right to education, health care, social security or a minimum standard of living.

In the theory of three generations of human rights, negative rights are often associated with “first-generation rights,” while positive rights are associated with “second-generation rights.”

Overview

Under the theory of positive and negative rights, a negative right is a right not to be subjected to an action of another human being, or group of people, such as a state, usually in the form of abuse or coercion. A positive right is a right to be provided with something through the action of another person or the state. In theory a negative right proscribes or forbids certain actions, while a positive right prescribes or requires certain actions. In the framework of the Kantian categorical imperative, negative rights can be associated with perfect duties while positive rights can be connected to imperfect duties

A right to an education is considered a positive right because education must be provided by a series of ‘positive’ actions by others. School buildings, teachers and materials must be actively provided in order for such a right to be fulfilled. The right to be secure in one’s home, on the other hand, is considered a negative right, on the grounds that in order for it to be fulfilled, others need take no particular action but merely refrain from certain actions, specifically trespassing or breaking into one’s home.

Belief in a distinction between positive and negative rights is usually maintained, or emphasised, by classical liberals and libertarians who oppose the provision of positive rights. The United Nations Universal Declaration of Human Rights lists both positive and negative rights (but does not identify them as such). The constitutions of most liberal democracies guarantee negative rights, but not all include positive rights. Nevertheless, positive rights are often guaranteed by other laws, and the majority of liberal democracies provide their citizens with publicly funded education, health care, social security and unemployment benefits. A response to the claim that negative rights protection by the State is a right is that the need for a police force or army is not due to any positive right to them that citizens claim, but rather because they are natural monopolies or public goods—features of any human society that will arise naturally, even while adhering to the concept of negative rights only. [1]

Criticism

Critics argue that the distinction between negative and positive rights is a false dichotomy. Some draw attention to the question of enforcement to argue that it is illogical for certain rights traditionally characterised as negative, such as the right to property or freedom from violence, to be so categorised. While rights to property and freedom from violence require that individuals refrain from fraud and theft, they can only be upheld by ‘positive’ actions by individuals or the state. Individuals can only defend the right to property by repelling attempted theft, while the state must make provision for a police force, or even army, which in turn must be funded through taxation. It is therefore argued that these rights, although generally considered negative by libertarians and classical liberals, are in fact just as ‘positive’ or ‘economic’ in nature as ‘positive’ rights such as the right to an education. [2]

Other critics go further to hold that any right can be made to appear either positive or negative depending on the language used to define it. For instance, the right to be free from starvation is considered ‘positive’ on the grounds that it implies a starving person must be provided with food through the positive action of others, but on the other hand, as James P. Sterba argues, it might just as easily be characterised as the right of the starving person not to be interfered with in taking the surplus food of others. He writes:

What is at stake is the liberty of the poor not to be interfered with in taking from the surplus possessions of the rich what is necessary to satisfy their basic needs. Needless to say, libertarians would want to deny that the poor have this liberty. But how could they justify such a denial? As this liberty of the poor has been specified, it is not a positive right to receive something, but a negative right of non-interference [3].

Some theorists discredit the division between positive and negative rights by claiming that rights are interconnected, arguing, for example, that basic education is necessary for the right to political participation. [citation needed]

Three Generations of Rights

The division of human rights into three generations was initially proposed in 1979 by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg. [citation needed]

His divisions follow the three watchwords of the French Revolution: Liberty, Equality, Fraternity. The three generations are reflected in some of the rubrics of the Charter of Fundamental Rights of the European Union.

First-generation human rights

First-generation human rights deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature and serve to protect the individual from excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, freedom of religion and voting rights. They were first enshrined at the global level by the 1948 Universal Declaration of Human Rights.

Second-generation human rights

Second-generation human rights are related to equality and began to be recognized by governments after World War I. They are fundamentally social, economic, and cultural in nature. They ensure different members of the citizenry equal conditions and treatment. Secondary rights would include a right to be employed, rights to housing and health care, as well as social security and unemployment benefits. Like first-generation rights, they were also covered by the Universal Declaration of Human Rights.

Third-generation human rights

Third-generation human rights are those rights that go beyond the mere civil and social, as expressed in many progressive documents of international law, including the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, the 1992 Rio Declaration on Environment and Development, and other pieces of generally aspirational “soft law.” Because of the principle of sovereignty and the preponderance of would-be offender nations, these rights have been hard to enact in legally binding documents.

The term “third-generation human rights” remains largely unofficial, and thus houses an extremely broad spectrum of rights, including:

* Group and collective rights
* Right to self-determination
* Right to economic and social development
* Right to a healthy environment
* Right to natural resources
* Right to communicate
* Right to participation in cultural heritage
* Rights to intergenerational equity and sustainability

Criticisms

Critics see “Second and Third generation human rights” as an attempt to cloak political goals in the language of rights, thus (a) granting certain political goals inappropriately positive connotations; (b) advancing the power of governments and NGOs while (c) diminishing the legitimate negative rights of individuals who are coerced by state power into funding or otherwise providing certain services (for example, a “right to employment” necessarily means that individuals may be forced to provide employment to others, and/or may be forced to pay additional taxes to governments to monitor and administer programs.)