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Review: Natural Rights Theories by Richard Tuck
Part of an Ongoing Book Review Series
Natural Rights Theories (1979) by Richard Tuck tracks the evolution of natural law/natural rights from the thirteenth century (though informed by even earlier Aristotelian thought from Ancient Greece) to the end of the eighteenth century. The work’s broad scope and numerous participants are capably managed considering the relative brevity of the work, which is a mere hundred and seventy-seven pages. It nevertheless examines the trajectory of natural rights philosophy, focusing primarily on its growth and the internal debates among its contributors over a couple centuries: particularly the early sixteenth century through the end of the seventeenth century. It is difficult to summarize this book while not spending too much time on any given historical thinker. That said, in the interest of expediency, an attempt will be undertaken here to summarize the far-reaching themes and concepts of the book overall.
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Though Tuck does examine, to some small degree, Aristotle during the classical age and Thomas Aquinas in the thirteenth century, his attention truly begins its focus with Dominican theologian Silvestro Mazzolini and his summary of an already centuries-old debate regarding the relationship between dominium (property) and ius (right). This concept was further examined through a discussion involving active and passive rights. As Tuck explains, “To have a passive right is to have a right to be given or allowed something by someone else, while to have an active right is to have the right to do something oneself… to attribute rights to someone is to attribute some kind of liberty to them… it is the only sort [of rights theory] in which the concept of right has a truly independent role to play” (Tuck, 6-7). Important to this early section of the book is the record of Roman legal thought regarding iura and dominium and the different spheres they appeared to represent to early Roman legal scholars. Iura were products of agreements—obligations and promises to be kept. In this way iura are reciprocal and generate from people in relations with each other in order to facilitate society. Dominium was not created or bound by agreement but was simply a matter of fact regarding a man’s sovereign control over his physical world (Tuck, 10). Tuck notes that the conflating of ius and dominium began in Rome when the Emperor gained more control and was able to interject himself into the more private spheres of people’s lives. Soon, legal thinkers began to associate any property right as an ius.
Before moving further down the timeline of the evolution of natural rights theory, something more specific should be mentioned about Thomas Aquinas, due to him often being referenced when discussion of natural law and natural rights arise. It is valuable to pay attention to Tuck’s point that despite Aquinas’s use of terms and concepts such as natural dominium, “his general theory… was not a genuine natural rights theory” (Tuck, 18). Moreover, Aquinas explicitly stated that rights are not to be attributed to people in a state of nature because “the iura naturale is neutral… In Aquinas, men do not have a prima facie natural right to liberty any more than they have a prima facie natural right to dominate other men” (Tuck, 20). This is an important distinction that appears to be missed or ignored by some who want to claim Aquinas as an early champion of natural rights philosophy.
A crucial champion of natural rights theory is Hugo Grotius. The importance of his influence is underscored by the amount of time and attention he is given in this work. Though he died at a time when he was attacked for his desertion of Calvinism and Aristotelian thought, it was this move that ultimately contributed to the transformation of Protestant political culture later.
One of Grotius’s most significant contributions was his willingness to assume liberty as a piece of property more than anyone prior to him in the Protestant Aristotelian tradition. Grotius was so critical in this sense that Tuck argues that he transformed natural law into a philosophy requiring the recognition of natural rights above all. “Rights have come to usurp the whole of natural law theory, for the law of nature is simply, respect one another’s rights” (Tuck, 67). Grotius maintained that men were free, by nature, to contract in all kinds of ways. Civil government interceded only to prevent inherently unfair agreements. He asserted that the principal objective to the recognition of rights was to attain and preserve a peaceful society. He controversially went further, stating that even if there were no God, this would nonetheless be the best way to organize society. This point was a bold one, as it implied that rights, though natural, need not be granted by God. The law of nature makes the recognition of rights, as Tuck puts it, “logically necessary” (Tuck, 76).
Grotius appeared to influence a schism of sorts between conservative and radical natural rights theory, made clear through the events of the English Civil War. Natural rights conservatives became skeptical about the axiom of sociability (what Grotius referred to as interpretive charity: the act of people recognizing each other’s rights). Radicals continued to champion interpretive charity and maintained it as a central tenant of the entire natural rights debate.
Thomas Hobbes became an important figure in the canon of natural rights philosophy due, in part, to his refusal in his work, Leviathan, to treat self-preservation as a duty. Hobbes instead saw self-preservation as a right of nature. This position is more innovative than it may at first appear. Hobbes turned a vital aspect of natural rights theory upside down and inside out. By asserting that self-preservation was not a duty—and therefore not an aspect of natural law (law being the duties people are bound to)—and instead stating that it is an aspect of natural right, this underscored his contention that self defense is a right which cannot be renounced, ever. Hobbes distinguished himself from his forebears, including Grotius, by drawing a more dramatic line between natural rights and natural law. He distanced himself further (especially from contemporaries like John Selden) by looking at suffering not as a consequence of God’s judgment, but as a result of breaking promises and other bad decisions. Ultimately, the most integral factor of Hobbes’s philosophy was his fixation with the concept of self-preservation and its role in informing society and government. He maintained that people essentially transfer their right of self-preservation over to a sovereign and abide by that authority’s dictates as a bargain for their security. This right has been transferred to a protector. It was not lost. It was simply transported elsewhere to an authority that safeguards the ability to live in society.
An important figure to mention briefly is that of Samuel von Pufendorf, who over time grew to reject the idea of natural rights. Pufendorf, who wrote extensively analyzing the works of Grotius and Hobbes, eventually rejected Hobbesian rights because a “Hobbesian right simply is not a right since any right requires a definite obligation on someone else” (Tuck, 160). Richard Tuck also notes that this perspective informed the Utilitarian view which would emerge only a hundred or so years later.
The book ends in the most obvious and yet most appropriate place: a discussion of John Locke and his writings in the late seventeenth century. Tuck pays close attention to Locke’s argument that property relations do not rest upon contract. This alone makes Locke a paradigm-shifting figure in the history of natural rights philosophy. In his Two Treatises, Locke asserts that property rights are inherent in one’s being and ability to manipulate and shape man’s physical surroundings. It is not an aspect of interpretive charity, but an individual right unto itself. Locke makes this point clear when he states that property is for man to enjoy. “As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in” (Locke, Two Treatises, quoted by Tuck, 172).
Perhaps more importantly, when it comes to the organizing of societies, Locke believes that men must themselves consent. “[T]hey cannot be bound, as both Grotius and Cumberland implied they could, by their predecessors” (Tuck, 172). Locke was thus able to champion the right of property as a natural right which enables civil society, with the caveat that absolutist ownership (of one over all things, to the detriment of everyone else) would be illegal and invalid if such a system were to function to keep people free. Locke, then, was able to utilize the right of property in and of itself to promote the organization of society without needing to subscribe to Grotius’s theory of the interpretive charity necessity to potentially seize property. This notion was unnecessary provided by Locke’s model that an individual’s rights can be defined by property ownership itself, and as long as such property is not “spoiled” and does not fall into the hands of a lone authority/owner—then the decentralization which supports and reinforces property ownership can be the means of recognizing and maintaining natural rights. Seen in this way, Locke’s enormous influence on political thought in the eighteenth century in England and the North American colonies makes a lot of sense. This is true especially when natural rights are seen themselves as a form of ownership. It is in this way, for Locke, that consent becomes vital. Because rights are the natural property of the individual, any transfer of such rights to a government requires consent. This notion of the ownership of rights, which Locke didn’t exactly invent but was possibly the best at illustrating, is crucial to the understanding of modern thought regarding natural rights.
Natural Rights Theories is an impressive work, considering how much it is able to say and how many figures it discusses in a relatively brief volume. The history of thought regarding natural rights and natural law is far less tenuous and opaque to someone after reading this book. It is essential reading for anyone who intends to navigate the history of natural rights, law, and modern constitutional thought. It is a field that stretches many centuries and diverges many times along its path to the present age, informed by a dialectic that is rich, occasionally contradictory, and endlessly fascinating.
[James M. Masnov is a writer, historian, and lecturer. His book, History Killers and Other Essays by an Intellectual Historian, is available here.]