The Rhetoric of Rights:
Natural Law Guarantees All Human Beings Fundamental Rights

 E Pluribus Unum

 

 

Defining Characteristics of Natural Law

"Natural Law" is a name used to refer to one or more of the following beliefs:


  • All individuals are entitled at birth to certain "natural rights" that guarantee their personal safety and property.

  • All human beings are endowed with reason so they are able to distinguish right from wrong.

  • Human beings sometimes enter into a "social contract" to form an association/ government that will protect the life and property of the members and promote their welfare.

  • When a ruler or legislature acts against the welfare of the people, the government no longer deserves the submission of the people.

 

"Nature" and Law in the Sixteenth and Seventeenth Centuries

The English Side of the Story

Although the existence of some form of "natural law" had been accepted through most of Anglo-American civilization, it was interpreted quite differently in those earlier days. The particular way in which "natural law" was defined also usually reflected the concerns of the person or group using the phrase.

As far back as 1598, we see James I writing a pamphlet promoting the importance of a strong monarchy and using natural law to support his claims. In the opening passage, he tells us he will base his arguments on three things: the idea that "Monarchie is the trew paterne of Diuinitie"; "the fundamental Lawes of our owne Kingdome"; and "the law of Nature." The title alone is enough to tell us how James interpreted natural law. The Trew Law of Free Monarchies: or The Reciprock and Mutual Dutie Betwixt a Free King, and His Naturall Subiects suggests that it is the the king who is "free", while it is only "natural" that the rest of the people are "subjects."

In the "Trew Law of Free Monarchies," James insisted "although I have said a good king will frame all his actions to be according to the law, yet is he not bound thereto but of his good will." However, as the years went on there were recurrent outbursts from writers, printers, theologians, religious groups, politicians, and others who argued that there was a natural limit to the authority of the kings, and that the people were entitled to some fundamental rights. John Milton helped lead the charge with works such as the one depicted below. Once again, the title says it all.

(A version with notes is available at the Milton Reading Room) Little wonder that American supporters of liberties referred so often to Milton in their writing!



The American Side of the Story

Americans did not necessarily start out as proponents of the kind of natural freedoms that cultivate individualism. Although the Puritans who came to America sought to escape the religious strictures of the king and parliament, they saw political and social hierarchies as an important part of the natural order. "A Modell of Christian Charity," was written in 1630 by John Winthrop on the ship Arabella as he travelled with his fellow Puritans towards what would be their first settlement in America. It is interesting, then, that the text opens with the following pronouncement: "God Almighty, in his most holy and wise providence, hath so disposed of the condition of mankind, as in all times some must be rich, some poor, some high and eminent in power and dignity, others mean and in subjection."

Additionally, while the Puritans regarded it as "natural" that human beings should seek liberty, this was was a source of concern for them. rather than celebration. The same John Winthrop who had attempted to provide leadership on board the Arabella was later chosen as governor general of Massachusetts, and in 1645 he found himself on trial for exceeding his authority. Winthrop did believe that the people had a natural right to choose their own leaders, saying, "The great questions that have troubled the country are about the authority of the magistrates and the liberty of the people. It is yourselves who have called us to this office, and, being called by you, we have our authority from God "Upon his acquittal, Winthrop made a short speech in the courtroom (now sometimes published under the title "On Liberty") warning his fellows of the dangers of unchecked freedom:.

There is a twofold liberty, natural (I mean as our nature is now corrupt) and civil or federal. The first is common to man with beasts and other creatures. By this, man, as he stands in relation to man simply, hath liberty to do what he lists; it is a liberty to evil as well as to good. This liberty is incompatible and inconsistent with authority and cannot endure the least restraint of the most just authority. The exercise and maintaining of this liberty makes men grow more evil and in time to be worse than brute beasts: omnes sumus licentia deteriores. This is that great enemy of truth and peace, that wild beast, which all of the ordinances of God are bent against, to restrain and subdue it. The other kind of liberty I call civil or federal; it may also be termed moral, in reference to the covenant between God and man, in the moral law, and the politic covenants and constitutions amongst men themselves. This liberty is the proper end and object of authority and cannot subsist without it; and it is a liberty to that only which is good, just, and honest.

In other words, Puritans often distrusted "natural" impulses that they regarded as an expression of brutish impulses and believed in the importance of "civil" liberty to provide order. However, this way of thinking about nature saw God as putting his imprimatur not on a king (who would serve as God's representative) but instead on those chosen by the people.

 

Early Proponents of Modern or Enlightenment Natural Law Philosophy

When you encounter the names of those who played a major role in the development of natural law theory, you can be sure that the text is building an argument based on those principles. Hugo Grotius (1583-1645) is sometimes described as the founder of the modern theory of natural law; another major contributor to the development of modern natural law concepts is Samuel von Pufendorf (1632-1694). Over the course of the seventeenth and eighteenth centuries, natural law theory gained respect among Englightenment thinkers and was often used to defend religious freedom in England as well as American civic and religious liberties.

 

Enlightenment Theories of Natural Law

With the rise of the Enlightenment, the Calvinist view that human beings needed to struggle against their animalistic tendencies was gradually eclipsed by a more optimistic vision of human beings as creatures of reason. When we try to understand the role of natural law philosophy in the debate between England and America in the revolutionary era, it is probably most useful to consider the theories of Algernon Sidney, J.J. Burlamaqui (1694–1748, Swiss jurist), Thomas Hobbes, and especially John Locke.

Algernon Sidney, in his 1698 Discourses Concerning Government, offers a standard definition of one of the first principles of natural law theory when he writes that "man is naturally free; that he cannot justly be deprived of that liberty without cause, and that he doth not resign it, or any part of it, unless it be in consideration of a greater good, which he proposes to himself." Similarly, Locke states clearly his Second Treatise of Civil Government (1690) :

every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.

According to this way of thinking, when people choose to join a society or form a government, the purpose of that organization is to protect and promote the good of the participants. As John Locke writes his Second Treatise of Civil Government (1690): The great and chief end . . .of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property." Thus, according to this philosophy, any group has the right to withdraw from a government if it is failing to look after their best interests. As Locke explains in Section 222 of Chapter 19:

The reason why men enter into society, is the preservation of their property [so] whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence.

In section 233, Locke goes on to apply the same reasoning to monarchs, arguing that

If the king shall shew an hatred, not only to some particular persons, but sets himself against the body of the common-wealth, whereof he is the head, and shall, with intolerable ill usage, cruelly tyrannize over the whole, or a considerable part of the people, in this case the people have a right to resist and defend themselves from injury . . . .

This reasoning directly contradicts the belief in the absolute right of kings.

 

Enlightenment Natural Law and the Founders

The works of Locke, Sidney, and other proponents of natural law were familiar to many of the founders. In fact, James Otis, John Hancock, Samuel Adams, Joseph Warren, John Adams and other revolutionaries who attended Harvard College would have studied the work of Locke and J.J. Burlamaqui's 1748, The Principles of Natural Law as part of the required curriculum. In addition, many of the founders would have been familiar with John Trenchard's and Thomas Gordon's: "Essays on Liberty, Civil and Religious, and Other Important Subjects" most often referred to as "Cato's Letters." Certainly, the frequency with which patriot writers referred to natural rights philosophies and philosophers suggested that these ideas shaped the way the founders thought about the world. (Anyone who doubts that natural rights thinkers had an effect on American thinking may find it intersting to see this example from one reader who thinks Jefferson was a little too indebted to Locke.)

We know from the records that survive of town meetings and other gatherings in the 1770s that the principles of natural law were widely understood and accepted. So how did "ordinary" Americans who did not have the benefit of advanced education become familiar with this Enlightenment political philosophy? Interestingly, they may have first become acquainted with these principles as they listened to sermons in their churches that warned of the threat to religious liberty represented by too powerful legislatures and kings. Underlying the series of conflicts and agreements that had gradually expanded English rights beginning with the Magna Carta was a serious debate over religious rights. Thus, it is not surprising that ministers played a role in the discussion of natural rights theory.

Jonathan Mayhew in a 1776 etching. The original is in the collection of The American Antiquarian Society, in Worcester, MA. The image is here courtesy of the exhibit, Religion and the Founding of the American Republic at the
Library of Congress.

The pastor of Boston's West Church, Jonathan Mayhew, for example, preached a sermon in 1750 entitled “A Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers (or see the "Discourse" at the Founders Library) in which he proclaimed:

if the end of all civil government, be the good of society . . . and if the motive and argument for submission to government, be taken from the apparent usefulness of civil authority; it follows, that when no such good end can be answered by submission, there remains no argument or motive to enforce it.. . . And therefore, in such cases, a regard to the public welfare, ought to make us withhold from our rulers, that obedience and subjection which it would, otherwise, be our duty to render to them.

Another example of this kind of argument can be found in Samuel West's 1776 sermon, “On the Right to Rebel against Governors." (For a fuller discussion of the role played by religious leaders in the revolution, see "Religion and the Founding of the American Republic: III. Religion and the American Revolution.")

The colonial press also played a key role in circulating the principles of natural law in the decades leading to the revolution.. Books by French proponents of natural law, for example, were available for sale and were also frequently quoted in newspapers. "Before the close of the [French and Indian] war, we find The Boston Gazette printing extracts from Montesquieu’s Spirit of Laws, with an apology and the expressed hope that it may not be 'political Heresey' to suppose that 'a Frenchman may have juster Notions of Civil Liberty than some among ourselves.' ("Colonial Newspapers and Magazines, 1704–1775: 9 The Vogue of French Radicalism," The Cambridge History of English and American Literature in 18 Volumes (1907–21). VOLUME XV. Colonial and Revolutionary Literature; Early National Literature, Part I available online through Bartleby.com).

 

Key Terms

If you see any of the following references or terms in a text from the revolutionary era, consider whether the author is using this argument: natural law, law of nature, nature's law, reason, rational, sense or common sense, Grotius, John Locke, Algernon Sidney.
Proponents of natural law often use the following words when characterizing the opposition: bias, prejudice, unreasonable, superstition.


A Primary Source Exercise

 


See Also:

For brief descriptions of the Enlightenment see the entries in The Encyclopedia of World History, The Columbia Encyclopedia, The Oxford Companion to Philosophy, "Enlightenment" at www.philosopher.org.uk and a Study Guide to the Enlightenment constructed by Professor Paul Brians of Washington State University.

Summary of "Natural Rights" in the Declaration of Independence

The Elements of Law Natural and Politic by Thomas Hobbes, 1640

Summary of Constitutional Rights, Powers and Duties -- This page from The Constitution Society makes a clear distinction between the "natural rights" of the individual and the rights a person is granted by virtue of being a citizen of the United States.


You may find the following links useful:

A Rhetoric of Rights: Core Arguments Used in the American Conversation in the Era of the Revolution.

A Debate on Natural Rights from Thomas Hutchinson's Unpublished Manuscript: “A Dialogue between an American and a European Englishman”

Reread the excerpt from Connecticut GovernorJonathan Trumbull's Fast-Day Proclamation of 1775 in order to see how many of the core arguments it contains.

A Step-by-Step Guide to Constructing Quick Analyses of Revolutionary-Era Texts

An Illustration of Arguments Used by American Patriots in the Rhetoric of the Revolution. You can use this page to help you understand how core arguments function in texts or to exercise your ability to identify core arguments in texts.

A particularly interesting example of the way one group of Americans used these core arguments to petition for freedom can be found in Slave Petition to the Governor, Council, and House of Representatives of the Province of Massachusetts, 25 May 1774: The Petition of a Grate Number of Blackes of this Province who by divine permission are held in a state of Slavery within the bowels of a free and christian Country at The Founders Constitution by permission of the Massachussets Historical Society. Here you will find a case in which the debate is going on not between the colonists and the English but between a group of African-Americans and a ruling group of white Americans. To delve more deeply into the question of how the American conversation on race and slavery related to the conversation on rights, see Expanding the Revolution: If All Men are Created Equal, What About African-Americans?

And if you have not already done so, you may want to view the materials available on The American Conversation and the 1770's Communication Circuit. See particularly: What is Rhetoric? Conversation and Debate in the Era of the Revolution.

 

 

 
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The E Pluribus Unum Project is funded by a grant from the National Endowment for the Humanities. It is co-directed by Dr. John McClymer, Professor of History, Assumption College; Dr Lucia Knoles, Professor of English, Assumption College; and Dr. Arnold Pulda, Director of Gifted and Talented student programs for the public schools in Worcester, MA. Visitors are encouraged to send inquiries or suggestions.