In my first post, I discussed the argument that there are no natural rights because such rights are too indeterminate. In this post I wish to take up another kind of objection. Taken together, these arguments show us what natural rights really are.

It is common to say that natural rights are those rights that can be enjoyed in a pre-political condition or a state of nature. Perhaps this is because John Locke discussed them as such. Perhaps it is because of the term “natural”. Whatever the reason, many think the fact that rights can be enjoyed in a state of nature is essential to natural rights.

Critics of natural rights have seized on this idea. Because natural rights are rights that people could possess even if no state (no positive law, no society) existed, they say, there really are almost no such rights. Consider, for example, the right to a fair trial. Fair trials may require the existence of political institutions and positive law. But if that is so, then there could not be a natural right to a fair trial. Or consider the proposal that people have a right to basic health care. Such health care may be possible only in relatively developed societies with relatively stable institutions. Again, it seems there could be no natural right to basic health care. (For a version of this argument, in the context of human rights, see this excellent book.)

The critics are right that many important rights cannot exist in a state of nature. But are they right to conclude that since many important rights could not exist without the state (positive law, society), the very idea of natural rights is just implausible?

You might think to dismiss this objection because you don’t think we have natural rights to fair trials or health care. Perhaps you are right. But this is to miss the point: whether or not we have such natural rights should not depend on whether fair trials or the provision of basic health care require as a matter of fact the existence of law, political society, or institutions.

So what are we to make of the objection? The lesson is that we should not identify natural rights with those rights that could exist in a state of nature. That’s not the sense of “natural” that matters here. Thinking about a “state of nature” is useful because it allows us to identify some natural rights. By imagining that the state does not exist, we can see certain rights for what they are: not simply conventional creations of positive law, but genuine moral rights.

But this does not mean that it is essential to natural rights that they can be enjoyed in an imaginary state of nature. The term “natural” used here is a little antiquated. It is meant to contrast with “artificial” or “man-made”. Natural rights are rights that are not fundamentally man-made. They are rights that people enjoy on grounds independent of legal enactment or conventional recognition. Natural rights, in other words, are moral rights that can be justified on grounds that make no essential reference to the state or positive law.

We can have natural rights to things, then, even if those things can exist only in when the state (law, society) exists. As long as their justification does not rely on the fact that they were passed or created by the state (law, society) a right is a natural right.

This point is often overlooked. A popular argument against the idea rights to property are natural, for example, is that property rights in modern society are legally specified. And this conventional element of property rights is supposed to show that they are not natural. (See most explicitly here. For a much more interesting variation, see here.) We can now see the mistake in this argument. Whether or not rights are legally specified – indeed, whether or not rights need to be legally specified – is simply irrelevant to whether or not they are natural rights. That has to do with their moral status, with their justification.

I for one believe property rights are natural rights. The reason is simple: I believe rights to property are justifiable on grounds that make no essential reference to the existence of the state or civil society. But I also believe that such property rights need to be specified. In our world, this is usually done by law. What this means is not that these rights are not natural (or no longer natural). Rather, it means that in order to respect our neighbors’ property rights we need to pay attention to facts about the world, including facts about the law. Such is life.