What's Wrong with Natural Rights

The main distinguishing characteristic of what I call "common-law" conservatism is a rejection of the notion of natural rights. This gets me in hot water with standard conservatives, who view the formulation of natural rights as put forward in the Declaration of Independence as the best way to formulate the difference between conservatives and statists, especially liberal statists. The Declaration declares it to be a self-evident truth that all men are endowed with certain inalienable rights and it is the role of government to recognize and preserve those rights. Hence, natural rights are prior to the state and in fact prior to the law the state enforces; natural rights are the source of law and the standard of government. Because men are endowed with these rights by their Creator, we also define the role of religion in public life, for the God who endows men with these rights certainly cannot be ignored by the state.

This is all coherent and convincing; but it is wrong and misleading. It is in fact an insufficient guarantee of the very rights it claims to enshrine as inalienable; and it by no means guarantees the recognition of God in the public life of the nation.

For what it does is establish rights as the source of law; it thus inverts the proper relationship. Law is the source of rights, for law defines the space within which rights operate. It is in fact impossible for rights to be the source of law, and so it is to make the human will the source of law which is what the doctrine of natural rights in fact accomplishes.

This is evident from the very nature of rights, which stem from a contractual basis. Rights are a form of relationship (jural relations), formed through agreement. Natural rights therefore make agreement the basis for law, for the state, for authority in general. They dissolve authority into consent. Every form of authority must therefore be based in willing acceptance, otherwise it can be dissolved. Even the parent/child relationship!

And it makes every relationship based in mutual consent to be valid and legitimate, even homosexual "marriage." Here is where the problem becomes clear: there are institutions which are authoritative in themselves and do not require consent or agreement to be legitimized. Marriage is one such relationship; the parent/child relationship is another. These stand over any attempt to reshaping by the human will.

And God is not guaranteed a voice in the public square by this doctrine of natural rights. In fact, the whole doctrine was devised as a way to keep God out of the public square, by postulating a "mediating concept" by which He might, as it were, express Himself from a distance, by proxy. Natural rights stand between God and the public square. They were devised so that no reference would have to be made to God's law, specifically the Ten Commandments, as the standard by which law and the state are to be judged. Human nature, not God's will, becomes the standard, and the human will, not God's, becomes the voice of authority.

Common-law conservatism aims to restore transcendental institutions back to authority, by recognizing that Stahl's principle of "Authority Not Majority" is the true basis for liberty. Authority comes first, and under its umbrella liberty can grow into maturity. To reverse the relationship, as does the doctrine of natural rights, is to destroy liberty and in fact to pave the way for the regime of human rights, of rights gone mad, of the litigious society where everyone and everything has rights, rights, rights, and where no one has any liberty anymore, where political correctness reigns supreme.

For a corrective, please read Common-Law Conservatism! And for a full-orbed alternative philosophy of law and the state, consult the volumes contained in the Stahl Project.