Hobbes is the earliest advocate of natural rights on the contractual ground. Macpherson regards Hobbes a theorist of natural rights because he makes political obligations dependent on his postulates of individual natural rights. For Hobbes, the state of nature is one of natural rights without any control. By portraying a state of complete or licentious liberty and natural rights of the individual, Hobbes could project two things. One, that natural rights are derived from a pre-political and pre-social condition and hence inhere in the individual and are inalienable, and second, that these rights emanate from the law of nature and are fundamental. However, due to absence of a controlling authority or sovereign, natural rights of each have impeded the natural rights of other. It is like a situation where everyone having right to have a gun and kill whomsoever one wants, ultimately becomes such that everyone fears everyone else, a situation of perpetual war.
And to constitute civil society and the commonwealth under a Leviathan, natural rights should be surrendered to this single sovereign as a result of social contract. Thereafter, the sovereign would be the sole source of rights. Hobbes requires surrender of all natural rights to sovereign, except the right to life or self-preservation. Institution of the commonwealth, powers of the Leviathan and political obligations of the subjects under Leviathan, all are based on the postulates of natural rights. He derives a doctrine of maximalist political obligation with the surrender of all natural rights to preserve primary existence, i.e., life.
Hobbes, it is said, started as individualist but ended as absolutist. This is because he based his postulates of the social contract on natural rights of individuals but ultimately ended up surrendering them to a single sovereign. However, Hobbes accepts the sanctity of natural right to life and is ready to accept violation of this a ground for revolt on the part of the subjects.
It may appear as if Hobbes seeks the end of natural rights. But it should be noted that the very basis of social contract is natural rights. In fact, right to life and self-preservation as the primary concern prompts individuals to enter into contract and institute the sovereign. This implies various rights, including right to revolt in case life is under threat. Further, Hobbes’s social contract is based on the assumption that individuals have the right to contract.
It was Locke, who championed the cause of natural rights in a strong way. Locke’s Two Treatises of Government contains his exposition on social contract, natural rights and government. Unlike Hobbes, Locke’s state of nature is not chaotic and licentious. Wayper says, ‘the state of nature is a state in which men are equal and free to act as they think fit, within the bounds of the law of nature.’30 Individuals in the state of nature possess the natural rights of life, liberty and property. But due to absence of an established, settled or known law; a known and indifferent judge; and an executive power to enforce such decisions, there is requirement of social contract so that three organs—legislative, executive and judicial, are instituted.
By conceiving state of nature as peaceful, social and not licentious and pre-social, Locke does not require the individual to surrender their natural rights as Hobbes did. He, in fact, invokes the natural rights to support a limited constitutional government and make natural rights inalienable and inviolable in the state. Social contract results in only partial surrender of natural rights to the supreme authority. Even the supreme authority remains with the people. The rights, which are surrendered, include power of punishing others; being interpreter of natural law; its executor as well as adjudicator. Except these, individuals retain the natural rights of life, liberty and property. Natural rights provide individual exclusive and indefeasible realm, which the state cannot violate or negate. As such, government is trust of the people for protection and security of the natural rights. Unlike Hobbes, Locke provides wider scope of resistance by the people against violation of natural rights.
Right to property is an important right in Locke’s formulation. An individual acquires property through labour. Interestingly, Locke’s concept of property as natural right is connected with mixing of labour. Locke says, ‘the labour of his body and the work of his hands … are properly his,31 meaning thereby that whatever one creates by one’s labour is his/her property. As such, individual carries property in person and goods. This means, property is in those possessions or acquisitions that individuals obtain from labour. By extension, it is also in those possessions and acquisitions that one acquires by employing other’s labour by payment as contractual exchange. The principle of contractual exchange is the basis of capitalist economy. This was a sharp break from the feudal economic and political order, which was based on privileges.
By invoking the conception of natural rights, Locke provided a strong theoretical basis for a liberal-capitalist order and limited political obligation of the individuals. Locke’s conception of natural rights of life, liberty and property provided basis for civil (life and liberty) and economic (property) rights, limited government, minimalist and non-interfering state, and liberal-capitalist order. Violation of natural rights can be sufficient reason for people to revolt against the government, which is a trust to protect these rights.
Rousseau’s state of nature is a state of idyllic life in which ‘noble savage’ lives peacefully and happily. They have natural rights. However, natural rights should be surrendered to the will of the civil society. Rousseau gave primacy to civil liberty represented by the General Will over natural rights.
Theory of natural rights is based on the conception that there are pre-existing and inalienable rights of the individual, which are available independent of and prior to society. This theory envisages a self-contained individual with proprietorial rights on person and capacity. Macpherson in his The Political Theory of Possessive Individualism has termed it as political theory of possessive individualism. It has been argued that rights, instead of being prior to society and state, and natural, are, in fact, socially and historically determined. For example, the modern state recognizes a range of individual rights that were not available to earlier forms of state. As such, what Hobbes, Locke and Nozick argue as natural and prior rights, could only be those of a historically specific market.32 Bentham has summarily rejected natural rights as ‘simple nonsense’. The logic behind Bentham’s rejection of natural rights may be the very rejection of law of nature. Bentham does not admit imprescriptible rights and natural law and advocates rights as sanction by law. Similarly, as Wayper says of Bentham, ‘His State, too, is the sole source of rights’ and ‘rights cannot be maintained against the state.’33 In this regard, Bentham stands in sharp opposition to Locke, who admits natural rights against the state. According to Bentham, neither law of nature nor natural rights could be admitted against the state.
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