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Unnatural Rights

Published online by Cambridge University Press:  01 January 2020

Derrick Darby
Northwestern University, Evanston, IL 60208-1315, USA


I was in bondage in Missouri, too. I can't say that my treatment was bad. In one respect I say it was not bad, but in another I consider it was as bad as could be. I was a slave. That covers it all. I had not the rights of a man.

It cannot be too often repeated: peasants and workmen have no natural rights, not one. Only we ought instantly to add, that kings and nobles have none either.

Research Article
Copyright © The Authors 2003

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1 Miller, Benjamin an ex-slave in a Freedman's Inquiry Commission interview, cited in Slave Testimony, Blassingame, John W. ed. (Baton Rouge: Louisiana State University Press 1977), 439.Google Scholar

2 Matthew, Arnold Mixed Essays, Irish Essays and Others (New York: Macmillan & Co. 1883), 36Google Scholar

3 Of course one can deny that moral rights are products of human design without also holding that such rights stem from the ‘nature’ of subjects. For instance, one can deny that they are products of human design and hold instead that possessing them is merely a matter of having a morally valid claim to act or be treated in a certain way. For an articulation of this view, see Feinberg, JoelThe Nature and Value of Rights,’ reprinted in his Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press 1980) 143–55.CrossRefGoogle Scholar

4 No doubt some readers will find the thesis that moral rights are a species of unnatural rights shocking. But once we see that worlds without natural rights would not be morally impoverished, that there are serious drawbacks to the orthodox view, and that imposing a social constraint on moral rights possession has certain virtues, this thesis will be rendered much less shocking. Though in the end some readers may still believe that this thesis is false (despite the fact that they would be hard-pressed to defend this claim), rendering it less shocking would be a substantial victory. For this would be enough to force us to reconsider the central role that we have assigned to natural rights in normative political philosophy as well as in our everyday practices of guiding, justifying, and criticizing human conduct. Furthermore, it would make us more amenable to the recent Suggestion that the demise of natural rights may ultimately result in a more ideal democracy — where serious argument and debate take the place of bald rights assertions — which would certainly be ironic in the United States of America given that this country, halled by many as the greatest democracy in history, was founded upon natural rights. See, for example, Zuckert, Michael P. The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame: University of Notre Dame Press 1996)Google Scholar. With respect to the limitations of natural rights thinking within a democratic regime, I am sympathetic to some of the criticisms raised by Glendon, Mary Ann Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press 1991)Google Scholar, eh. 7. I cannot substantiate this comprehensive case for rethinking the source and value of moral rights in a Single essay. So I shall settle for articulating and defending my alternative position. Elsewhere I argue that worlds without natural rights would not be morally impoverished, Darby, DerrickAre Worlds Without Natural Rights Morally Impoverished?The Southern Journal of Philosophy 37 (1999) 397–417CrossRefGoogle Scholar, and I identify a virtue of a socially oriented conception of moral rights possession in Darby, Two Conceptions of Rights Possession,’ Social Theory and Practice 27 (2001) 387–417.Google Scholar

5 I suspect that one could not give the kind of account I offer in this paper — one which imposes a social constraint on moral rights possession — without also rethinking the role of these ontological traits. But I will not argue that my proposal is the only plausible one.

6 And as for the connotation of the phrase ‘human rights,’ which seems to carry with it the idea that human beings possess certain rights merely in virtue of being human, on the view that I shall develop we can still construe these as rights that all human beings are taken to possess, though we cannot say that they possess these rights simply in virtue of their humanity (or simply in virtue of some other feature of their constitution). If we said this, the natural/unnatural rights dichotomy would not be apt.

7 The Works of Jeremy Bentham, John Bowring, ed. (Edinburgh: William Tait 1843), Vol. III, 221. For illuminating reconstructions of Bentham's critique of natural rights, see Hart, H. L. A. Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press 1982), eh. 4CrossRefGoogle Scholar; John, DeighRights and the Authority of Law,’ The University of Chicago Law Review 51 (1984) 668–99Google Scholar; and L. W., Sumner The Moral Foundation of Rights (Oxford: Clarendon Press 1987), eh. 4.Google Scholar

8 Works III, 221. Several commentators on Bentham's work have rightly pointed out that this view is too strong, since non-legal conventional practices can also give rise to rights that are not natural. For instance, see Hart, Essays on Bentham, 84 and Sumner, The Moral Foundation of Rights, 113. My modification of Bentham's constraint will reflect this insight.

9 Although many philosophers may believe that we should embrace a conceptual thesis or philosophical theory only if it is true and can be demonstrated to be true, it is certainly not unusual for political reasons to motivate theory selection. For instance, it has been recently argued that Kant's egalitarian moral philosophy provides better resources for social change that brings about the full recognition of women as moral and political equals, which gives feminists a reason to prefer it over a theory that gives feeling a prominent and positive role. See Baron, MarciaKantian Ethics and Claims of Detachment,’ in Feminist Interpretations of Immanuel Kant, Schott, Robin May ed. (University Park: The Pennsylvania State University Press 1997), 148.Google Scholar

10 For well-developed versions of this critique, see Klare, KarlLabor Law as Ideology: Toward a New Historiography of Collective Bargaining Law,’ Industriell Relations Law Journal 4 (1981) 450–82Google Scholar, and Gabel, PeterThe Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves,’ Texas Law Review 62 (1984) 1563–99.Google Scholar

11 Here I follow Geuss, Raymond The Idea of a Critical Theory: Habermas and the Frankfurt School (Cambridge: Cambridge University Press 1981)Google Scholar.

12 Gabel, ‘The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves,’ 1581; Polan, DianeToward a Theory of Law and Patriarchy,’ in The Politics of Law: A Progressive Critique, Kairys, David ed. (New York: Pantheon Books 1982), 298–9Google Scholar; Gordon, Robert W.New Developments in Legal Theory,’ The Politics of Law: A Progressive Critique (Revised Edition), Kairys, David ed. (New York: Pantheon Books 1990), 422–3Google Scholar; Cheryl, HarrisWhiteness as Property,’ Critical Race Theory: The Key Writings That Formed The Movement, Crenshaw, Kimberle Gotanda, Neil Peller, Gary and Thomas, Kendall eds. (New York: The New Press 1995), 283,286,287Google Scholar.

13 Douglass, FrederickWhat the Black Man Wants,’ in Let Nobody Turn Us Around: Voices of Resistance, Reform, and Renewal, Marable, Manning and Mullings, Leith eds. (Lanham: Rowman & Littlefield 2000), 128Google Scholar, brilliantly expresses this point in very general terms:

The story of our inferiority is an old dodge, as I have said; for wherever men oppress their fellows, wherever they enslave them, they will endeavor to find the needed apology for such enslavement and oppression in the character of the people oppressed and enslaved…. So, too, the Negro, when he is to be robbed of any right which is justly his, is an ‘inferior man.’

14 Later I will take up this issue of how to rethink the critical value of moral rights if we impose a social constraint on moral rights possession, §VI.

15 I am grateful to an anonymous referee for pressing me to make clear that I am not attempting to argue for this stronger thesis.

16 The kind of respect I take to be relevant will be discussed shortly, §IV.

17 There are two other recent attempts in the philosophy of rights to systematically develop and defend a conception of moral rights possession that satisfies a social constraint. See Sumner, The Moral Foundation of Rights; and Martin, Rex A System of Rights, (Oxford: Clarendon Press 1993)Google Scholar. While I have benefited greatly from their work, my account differs from their accounts in important respects. One very important difference is that we are lead to this approach for different reasons. Neither Sumner nor Martin offers a political justification for imposing a social constraint on moral rights possession. Yet collectively our work builds a very powerful case for a conceptual position regarding the source of moral rights that has not been taken seriously enough.

18 Obviously, natural rights theorists would reject Bentham's view that all bona fide rights are products of positive law. Presumably they believe that natural rights are bona fide rights even though these rights are not products of positive law. Consequently, it would be fruitless to take the choice between the natural rights approach and rights externalism to turn on the issue of what constitutes a bona fide right. By taking a version of Bentham's definition as my point of departure I am not begging any questions against natural rights theorists, since I am not arguing from this definition to a social practice conception of moral rights possession, or from this definition against a natural rights conception. Rather I am simply assuming this definition, offering a conception of rights that Squares with it, and showing that certain objections to this conception can be answered. But this qualification notwithstanding, the political justification for rights externalism advanced in the previous section does indeed offer us a positive reason for imposing a social constraint on moral rights possession. Hence my case for rights externalism is not merely a negative one.

19 For a critique of this first proposal, see Sumner, The Moral Foundation of Rights, eh. 4, where he develops and deepens some of Bentham's criticisms. For a critique of the third proposal, see Martin, A System of Rights, eh. 3. Collectively our work builds a comprehensive case against all three ways of accounting for the source of rights that are taken to exist independently of social practices.

20 Feinberg has been the most influential defender of this approach and Martin has been his foremost critic from a rights externalist perspective. I contrast their approaches to grounding human rights and defend Martin's in ‘Feinberg and Martin on Human Rights’ (forthcoming in The Journal of Social Philosophy).

21 For the valid claims approach to rights and a defense of the interest criterion of rights possession, see Feinberg, ‘The Nature and Value of Rights’ and ‘The Rights of Animals and Unborn Generations’ respectively, in Rights, Justice, and the Bounds of Liberty. For a useful recent discussion of the general connection between rights possession and ontology, which also criticizes Feinberg's proposed right-endowing criterion and offers another in its place, see Panichas, George E.The Rights-Ascription Problem,’ Social Theory and Practice 23 (1997) 365–98CrossRefGoogle Scholar. I will return to this point about the connection between rights possession and ontology later, §VII.

22 Compare my use of the terms ‘rights internalism’ and ‘rights externalism’ with Lomasky's, Loren usage in Persons, Rights, and the Moral Community (Oxford: Oxford University Press 1987), eh. 7.Google Scholar

23 This example could be made more precise (as well as more complex) by formulating it using the Hohfeldian classificatory scheine for rights. For example, to say that Dred does not have a right to go and come as he pleases is to say that others do not have a duty to assist him or to refrain from interfering with him. Thus this would be to deny that Dred has a claim-right to go and come as he pleases. And to take just one more example, to deny that Dred can seil his labor for a wage is to say that someone has a claim-right that Dred would be violating by doing so. But for the sake of simplicity I will not develop my analysis using the Hohfeldian classificatory scheme.

24 It does not follow from this that we must develop the idea of institutional respect using a legal model. If we wish to impose a social constraint on moral rights possession, we need not suppose that only formal legal practices as opposed to more informal social practices can suffice for this constraint. Although I do think that there are reasons for grounding moral rights possession in more formal social practices, the argument of this paper does not require ruling out the possibility that the respect necessary for grounding moral rights could be imparted by less formal social practices. Still, I will use the legal model for expository purposes. My presentation of this model borrows from Hart, The Concept of Law (Oxford: Clarendon Press 1961)Google Scholar.

25 Here I follow Martin, A System of Rights.

26 Two Treatises of Government, Lasiert, P. ed. (Cambridge: Cambridge University Press 1963), 271–3Google Scholar

27 Feinberg, Rights, Justice, and the Bounds of Liberty, 154Google Scholar

28 The Moral Foundation of Rights, eh. 6

29 Compare this to Lomasky, Persons, Rights, and the Moral Community, 11.Google Scholar

30 The alleged fallure of consequentialist moral theories to adequately promote the freedom of individuals is well documented. Commitment to goal maximization is taken to be in direct conflict with rights and, hence, is taken to place insufficient value on individuals and their freedom. Thus it would appear that a consequentialist moral theory could not play the justifying role since it could not satisfy the constraint that the freedom of individuals be promoted by assigning greater weight to their claims over claims based on goal maximizing concerns. For a commendable attempt to undermine this Charge against consequentialism, see Sumner, The Moral Foundation of Rights, eh. 6

31 Bentham found himself in a similar position. By rejecting the doctrine of natural rights Bentham was precluded from appealing to these rights as Standards for moral criticism. But he was not troubled because, as a utilitarian, Bentham denied that there was any moral Standard independent of the Greatest Happiness Principle. So although Bentham denied the existence of natural rights and held instead that all rights were the product of positive law, he was still able to maintain that morality was superior to law and to critique the law since he held a utilitarian Standard of right and wrong. For a very clear Statement of Bentham's predicament, see Deigh, ‘Rights and the Authority of Law,’ 677.

32 For a defense and a critique of right-based moral theory, see Mackie, J.L. ‘Can There Be a Right-Based Moral Theory?’ and Raz, JosephRight-Based Moralities,’ respectively, in Theories of Rights, Waldron, Jeremy ed. (Oxford: Oxford University Press 1984)Google Scholar.

33 Sumner, The Moral Foundation of Rights, 148Google Scholar

34 The general issue addressed here is explaining how we should understand the semantics of moral rights assertions if we embrace a conception that imposes a social constraint on moral rights possession. There is very little debate among those who defend such a conception about how to interpret such assertions. The prevalling interpretation is roughly that sentences of the form ‘s has a moral right to ø’ are to be understood, insofar as it makes any sense at all, as claiming that 's ought to have a legal (or conventional) right to ø.’ Compare Sumner's version with Bentham's: ‘If I say that a man has a natural right to [this] coat or [this] land — all that it can mean, if it mean anything and mean true, is, that I am of [the] opinion he ought to have a political right to it: that by the appropriate Services rendered on occasion to him by the appropriate functionaries of government he ought to be protected and secured in the use of it’ (Works III, 218). This prevalling interpretation, which Feinberg refers to as the ‘There ought to be a law theory of moral rights,’ is challenged by Feinberg, In Defence of Moral Rights,’ Oxford Journal of Legal Studies 12 (1992) 149–69CrossRefGoogle Scholar, and by Ronald, DworkinModel of Rules 11,’ in his Taking Rights Seriously (Cambridge: Harvard University Press 1977)Google Scholar.

35 I owe a great debt to many colleagues and friends for penetrating and generous feedback on earlier versions of this paper: David Copp, John Deigh, Daniel Dennett, Jorge Garcia, Robert Gooding-Williams, R. Kevin Hill, Richard Kraut, Loren Lomasky, Don Marquis, Rex Martin, Tom McCarthy, Tommie Shelby, and Carl Wellman. I am also grateful to audiences at Bowling Green State University and a 2000 American Philosophical Association Central Division Symposium Session. Finally, I want to thank two outstanding referees for this Journal for extensive comments and incisive criticisms. I would be much less satisfied with this paper had it not been for your efforts.

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