kelly naturalness of rights

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A Symposium on Natural Right and Natural Law

On theNaturalness o f RightsChristopher Kelly

THE POLI TI CAL APPEAL to rights isnot merely familiar to us today, it is inescapable.Virtually every issue of importance inboth foreign and domestic policy can beformulatedasaquestion of the rights of in-dividuals, minority groups, peoples, or na-tions. In spite of, or perhaps because of ,this ubiquity of the language of rights, thenotion of natural rights is not so common.Both public debate and academic discus-sion of rights shy away from, or drawshort of, attributing naturalness to rights.To speak about nature, and especiallyhuman nature is, or appears to be, anunacceptable return to a discredited tradi-tion. Y et, if rights have no natural supporttheir status isproblematic.Perhaps the failure to link rights tonature is one reason why current discus-sions of rights areso often charged withmanufacturing assumptions to fit desirableconclusions instead of deducing conclu-sions from plausible assumptions. Thecharge that Rousseau levelled at earliernatural law theorists is true of many of ourcontemporary theorists of rights:

Writers begin by seeking the rules onwhich, for the common utility, it wouldbe appropriate that men agree amongthemselves; and then they give thename natural law to the collections ofthese rules, without other proof thanthe good which they judge would result

from their universal application.Rousseau is certainly right to conclude,This is surely a very facile way to com-pose definitions and to explain the natureof things by almost arbitrary conven-iences.2In Rousseaus argument a natural law isa rule of natural right. A right, in turn, isnatural if it can be derived from the firstand simplest operations of the humansoul. Natural laws deduced from naturalright must speak directly with natures~oice.~n Rousseaus judgment Hobbeswas the first who saw very clearly thedefect of all modern definitions of naturalright in their failure to examine thesemost primitive operations. WhileRousseau judged Hobbess final doctrineto be inadequate, he grants that his pro-cedure was the correct one. To begin tounderstand thenaturalness of rights, then,it will be useful to begin at the beginningwith hob be^^

Natural Right and Natural NecessityHOBBESSDEFIN TI ON of the Right of Naturein Leviathan is

. . .the liberty each man hath to use hisown power as he will himself, for thepreservation of his own nature, that isto say, of his own life, and consequent-236 Spring/Summer 1984


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ly, of doing any thing which in his ownjudgment, and reason, he shall con-ceive to be the aptest means there-unto.5While this definition states what naturalhardly be improved upon, it gives no ex-planation of its derivation. Natural rightseems to be an arbitrary assumption likethose Rousseau complained about. Why isthis extensive liberty, which amounts to aclaim to everything, a right? Perhaps amore important question is in what senseis it natural?In the versions of the definition pub-lished earlier, Hobbes says that this libertystems from a certain impulsion of natureby which every man isdesirous of what isgood for him, and shuns what isevil. Thechiefest of natural evils is death, theterrible enemy of nature. This impulsionof nature which makes us desire preserva-tion is no less an impulsion than thatwhereby a stone moves downward. It isreceived from the uncontrollable dictatesof necessity.6 Whatever appearances tothe contrary may exist, we can no moreavoid the impulsion to shun death than wecan avoid the impulsion to movedownward.This account of the naturalness of thisimpulsion makes it hard to see why theright of nature is described as a right. Wedo not speak of the right of a stone tomove downward. We speak of the necessi-ty a stone has to move downward. Hobbeshas defined a right as a liberty. Now wefind that it is a sort of necessity. Hobbessees no contradiction here. We do speakof the liberty of a stone to movedownward if something had been im-peding its movement. Thus, a stone can beboth free to move downward and com-pelled to do so. Humans are equally freeand compelled to attempt to preservethemselves.Hobbes argues that allmen account tobe done justly and with right whateverisnot contrary to right reason. I t is notcontrary to right reason to shun death. Infact, it would be contradictory or absurdto claim to avoid this natural necessity.

right consists of with a clarity that could

Further, a right is a blameless liberty.The liberty to attempt to preserve life isblameless because it would be as absurd toblame aman for this attempt as it wouldbe to blame a stone for its downwardmovement. Blame exists only where thereis a choice. The Right of Nature is arightbecause it is blameless and according toright reason. It is natural because it is im-pelled by natural necessity.Natural laws for Hobbes, as forRousseau, are rules of natural right. Theyare theorems deduced from this initialnecessity.* Justice, the third law of nature,which consists only in law-abidingness orkeeping contracts, is compatible withnatural necessity because it is deducedfrom it. With this deduction Hobbes claimsto be the first to have found rules whichare so rooted in human nature that they,unlike other versions of natural law, canand will be obeyed.The distinctiveness of Hobbess iden-tification of natural right and naturalnecessity can be both illustrated and ex-plained by comparing his doctrine withalternative views of the relation betweenright, justice, or law and necessity. Arange of such views can be found in thehistory of Thucydides, whom Hobbesidentified as the most politichistoriographer that ever writ. It isThucydides who best performed the prin-cipal and proper work of history, which isto instruct and enable men, by theknowledge of actions past, to bearthemselves prudently in the present andprovidently towards the future. Hobbesheld that the reader of Thucydides learnsfrom contemplation of those human pas-sions, which either dissembled or not com-monly discoursed of, do yet carry thegreatest sway with men in their publicconversation. Thus, in Hobbess judg-ment, Thucydides is unsurpassed in hispresentation of the relation betweenmens passions and their public conversa-tions or arguments about j u~ti ce.~s weshall see, it is precisely this relation whichposes the problem of justice that Hobbessderivation of natural law from naturalnecessity ismeant to solve. The language

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of Hobbess own translation of Thucydidespresents this problem as it manifesteditself to Hobbes.TheProblem of Right

THE SSUEI NVOLVEDn the relation betweenright and necessity is shown clearly in acharge brought against the Athenians bythe Boeotians that they had done unjustlyto transgress the universal law of the Gre-cians by seizing a temple and usingsacred water. The Athenians respond thatthey had not harmed the temple and forthe water, they meddled with it uponnecessity. They explain further thatwhatsoever is forced by war or dangerhath in reason a kind of pardon even withthe god himself . . .and they are said toviolate laws that are evil without con-straint.I0 The Athenian argument is Hob-bess argument. An act which is done outof constraint or necessity is blameless andself-preservation is forced upon menwithout a choice.In the Melian Dialogue, which is theirboldest and perhaps most consistent argu-ment, the Athenians go so far as to appealto anecessity of nature applying to menand (as far as they know) to the gods. Thisnatural necessity makes the strong ruleover the weak and consequently absolvesthem from blame and just retribution.Nature, in the form of necessity, takesprecedence over justice. Furthermore, thegods respect this precedence and do notblame those who are unjust out of compul-sion.I2The Athenians opponents, the Boeo-tians and Melians in the cases mentionedabove and the Spartans elsewhere,I3 can-not respond to the Athenians in their ownterms. They look upon the Athenianssimply astransgressors against divine lawand a human justice which the gods support. The Spartans are outraged that theAthenians admit their transgressions anddismiss them soeasily. The Melians, whoface conquest by the A thenians, struggleagainst acknowledging that there could becompelled transgressions. Their position isthat justice (such as their own) and in-

justice (that of the Athenians) deserverewards and punishments because theyare freely chosen. The Athenians, inreturn, point out that the Melians are tooweak to be successfully unjust and accord-ingly that their justice comes from com-pulsion and deserves no reward, just as anA thenian conquest of Melos woulddeserve no punishment. While the Athe-nians do say that their conquests areblameless because compelled, they stopshort of saying that they have a right toconquer others. Hobbess definition of theRight of Nature grants all that the Athe-nians could want and more.I4We can generalize the problem of thenormal view of justice from these ex-amples. Justice, or right, as it is normallyunderstood makes demands which areconstantly undermined by natural necessi-ty. This isas true of traditional natural lawteachings as it is of the views of the op-ponents of the Athenians. In atension be-tween the demands of divine or naturaljustice and natural necessity it is clearwhich side will win. Recognition ofmitigating circumstances caused bynatural necessity requires making excep-tions to any general rules. The necessitymen feel to preserve themselves excusesthem from obeying the divine lawconcerning the use o temple water and itwould excuse them from obeying anatural law prohibition against theft. Toallow necessity as an excuse,asseems on-ly fair when meting out retribution,presents men like the Athenians with allthey need to justify conquest o the world.The common view isthat crimes are com-mitted outof injustice and that people areaccountable for their offenses. This viewhas no effect on the argument that claimsthat crimes are committed out of necessi-ty. To respond to the Athenians of theworld in their own terms, Hobbes seemsto say, we need to base justice on thesame necessity which they use to excuseinjustice. J ustice must be reconstructed ina way which is compatible with the posi-tion that men are not free except in thesense that stones are free.At least two objections can be raised to

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Hobbess doctrine from traditionalperspectives. First, it is by no means clearthat the compulsion to shun death is atruecompulsion. The Melians attempt to denythat the Athenians are compelled to con-quer. In fact, we are regularly confrontedwith examples of people who, out ofreligious conviction or belief about justice,refrain from conquering others and evensacrifice their lives without hesitation.What is most important about traditionalnatural law teachings is that they both de-mand and explain such actions, by givinga rational account of human inclination tojustice. It is possible to admit that the needto preserve oneslifecan mitigate some of-fenses against natural law without excus-ing these offenses entirely. In short,Hobbes compares the avoidance of deathto the pull of gravity, but experienceshows that this is an exaggeration.Second, Hobbess doctrine of necessityseems to imply that any real notion ofresponsibility for sin or crime is an im-possibility and consequently is either in-compatible with Christianity or makes amockery of Gods justice in punishing sin.Such an incompatibility, while provingnothing in itself, would make Hobbessdoctrine unacceptable to the audience hemost wants to persuade. For rhetoricalreasons alone it is desirable to show a con-nection between natural right and divinejustice.

The Misunderstanding of Graoity andthe Misunderstanding of ManI F THE FEAR of death that serves as thefoundation of the Right of Nature were ascertain a force as gravity, we would ex-pect it to operate as universally as gravityand draw men automatically into theLeviathan-style state that Hobbes deducesfrom the right of nature. The bookLeoiathan is unnecessary if what it says istrue. Even if men fail to understand thenatural necessity properly, it should actupon them just as gravity acts upon thosewho have not read Newton.I5 Interesting-ly, Hobbes argues both that those humanactions of self-sacrifice which appear to

defy natural necessity in fact follow it andthat mens understanding of gravity doesaffect the way it acts upon them.On the first point, that men in factalways do act in accordance with naturalnecessity in spite of appearances to thecontrary, Hobbes asserts that beforephilosophic discussion of justice enteredthe public realm princes did not sue for,but already exercised the supreme power.They kept their empire entire, not byargument, but by punishing the wickedand protecting the good. The simplicityof those times meant that natural necessi-ty did its work unimpeded. Men felt thefear of death, feltthe necessity of enteringsociety to relieve this fear, and felt thenecessity of obeying their sovereign oncein society. A rgument was unnecessarybecause those simple ages did not sufferfrom error.16The successof these regimes at acting inaccord with necessity obscured the natureof the necessity which brought them intobeing. Because they were so well pro-tected against each other the citizens lostsight of their fear. In attempting to under-stand justice, they embraced a false empty shadow instead of it. Error replacedsalutary ignorance and contention andbloodshed replaced peace. This does notmean, however, that natural necessity hadceased to act or that men ceased to feel it.They merely ceased to understand it prop-erly. Hobbes freely admits, and even in-sists, that there are men who deny his ac-count of the necessity which forces men toattempt to preserve themselves. Thosewho do, however, confess and deny thesame thing. . .out of a desire they have tocontradict others, they gainsaythem~elves.~~heir actions confess thatthey feel the necessity even as theirspeech denies that they feel it. This self-contradiction holds true even of thoseac-tions which do not preserve life.Hobbess discussions of gravity showhow this can be. Gravity pulls peopledown whether they understand it or not.Humans and stones are equally subject tothis pull. Those who do not think aboutgravity, those who understand it, and

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those who misunderstand it are all equallysubject to the uncontrollable dictates ofnecessity. However, although all feelgravity equally, some misunderstand whatthey feel. In fact, university professors inparticular misunderstand what they feel,and they pass on this misunderstanding toall who will listen to them. This is trueboth in the discussion of right and in thediscussion of gravity. When the Schools donot engage in circular reasoning or in-significant speech,* they misunderstandgravity by anthropomorphizing things.They. .. measure, not only other men, butall other things, by themselves; andbecause they find themselves subjectafter motion to pain, and lassitude,think every thing grows weary of mo-tion and seeks repose of its own accord,little considering, whether it be notsome other motion, wherein that desireof rest they find in themselves, con-sisteth.lg

Not least among the consequences of thismisunderstanding is that it stands in theway of a successful science of physics.More important for the discussion hereis Hobbess insistence that this an-thropomorphizing is based on a priormisunderstanding of what humans feelafter growing weary of motion. As Hobbessays, the desire for rest consists in someother motion. It is not a sign of a tenden-cy to rest or peace. In neither externalnature not the internal working of thehuman soul is there a tendency to rest orpeace. What men interpret as a tendencyto rest in themselves is only a variant ofmotion. They misinterpret their own feel-ings because they are ignorant o motion.Thus, the misunderstanding of gravity is amisunderstanding of nature based on amisunderstanding of oneself. This priormisunderstanding, in turn, is based on amisunderstanding of nature, or thephysics of internal motion. Men would noterr in measuring all things by themselvesif they began by measuring themselvesproperly. If they understood themselves,they would not misunderstand gravity. If

they understood gravity they would beless likely to misunderstand themselves.Just as it ispossible to misinterpret an in-ternal motion as a tendency to rest, it ispossible to misinterpret the similar inter-nal motion that makes us shun death. Wedo shun death, but we think that we seekrest, peace, or a summum bonum.20Weareall the more willing to accept the viewthat the universe itself supports peace if,like Thucydides Melians, we believe thatthe universe supports our well-being.The view that things tend toward rest isto the true understanding of gravity as thetraditional natural and divine lawteachings are to Hobbess teaching of thenatural necessity men feel to preservethemselves. The consequences of thismisinterpretation of natural necessity arepotentially as severe as the consequencesof a misunderstanding of gravity for some-one who steps off a cliff. Men falselybelieve that nature or God supports themin their sacrifice of life much in the waythat amadman might believe that a cloudcan support him in his step off a cliff.Hobbes argues, then, that the traditionalunderstandings of right and law lead topolitical madness and destruction if theyare followed consistently. More likely,they will not be followed consistently andmen will follow natural necessity and actagainst what they believe justice to be.They will be neither entirely good nor en-tirely bad.Z1 Others, like the Athenians,will ignore beliefs about justice and takeadvantage of those who attempt to be just.By building his doctrine of natural law, orjustice, on necessity, Hobbes claims to ex-plain to men their most deeply feltneedand to do away with any conflict betweenthis need and justice. He replacesmadness, bad faith, and the triumph of thewicked with a solid basis for justice.Natural Necessity and Divine PunishmentHOBBWS EINTERPRETATION of natural lawrequires the abandonment of much of thecontent of traditional natural law. Thisabandonment was made easier by the



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variations within the natural law traditionwhereof we see so many volumespublished, and in them somany contradic-tions of one another and of themselves.22The abandonment of divinely posited lawcould not be accomplished so easily.Therefore, Hobbes undertook to reconcilehis doctrine as much as possible withChristian notions of divinity. Because itwill not be possible here to examine thisattempted reconciliation fully, a fewwords about the relation between naturalnecessity and divine punishment will haveto suffice.23

If men are compelled to act as they dowhen they injure others, how can a justGod punish them for their actions? Hobbescould maintain his position by holding thatany actions done for the preservation oflife are not sins, the position the Athenianstook against the Boeotians. He comesclose to doing this when he discusses tak-ing pleasure in the prospect of injury to anenemy, a passion so adherent to thenature botho man, and every other livingcreature, as to make it asin, were to makea sin of being a man. To assert thatnatural necessity, or merely being aman,compels sin would be to assert that menare wicked by nature, which Hobbes em-phatically denies because it cannot begranted without impiety. Headmits thatmen derive desire, fear, anger, and otherpassions from nature, but does not im-pute the evil effects of those unto nature.The passions have their source in nature,but sins come from circumstances whichdirect the passions in different ways. Thepassions can be channelled, likeariver, indirections which are either good or evil.Moreover, also like a river, they do notchannel them~el ves.~~Gods punishment of sin, then, shouldnot be understood as punishment o ac-tions that were committed out of free will.If we understood Gods punishment asretribution, it would be impossible not toblame Him for punishing actions commit-ted from natural compulsion. Becausethere isno free will there is nothing intrin-sic to human actions which make themblameworthy or praiseworthy. For

Hobbes, the right of afflicting, is notalways derived from mens sins but fromGods power. Sins do not deserve punish-ment, but God does have the right topunish them. In fact, Gods punishmentsare not examples of retribution againstsin, but deterrents against future sins.Hobbes says that tosay that God can soorder the world, as a sin may be necessari-ly caused thereby in a man, 1 do not seehow it is any dishonour to him. Divinepunishment itself helps to order the worldso that sin will be committed less often.God uses punishment as a wise sovereigndoes, to frame and make [mens]wills tojustice.*sOf course, because men fear both thevisible power of other men and the invisi-ble power of God,26t is desirable to showthat Gods will is in accord with the rightand law of nature. The only divinelyposited addition to the law of nature thatHobbes concedes to be necessary to salva-tion is the requirement of believing thatJesus is the Christ. This belief need haveno effect on speeches or actions.27Hobbes, unlike the Athenians, insists thatGod can and does punish actions whichare performed out of compulsion. Hereconciles natural compulsion and divinewill to such a degree, however, that Godswill is seen to support self-preservationthrough obedience to a sovereign.Once divinely ordained commands op-posed to natural necessity are disposed ofin the argument, the sovereigns place iseasy to see. He, like God, makes laws andpunishments to channel wills to justice.The purpose of punishments is not retribu-tion for freely chosen injustice, but deter-rence, or (in Hobbess terms) terror. Lawsdont improve citizens, they merely directactions. They are like dikes and damschanneling rivers which will be most ef-fective if they do not ignore or misinter-pret the force of gravity. The sovereign,like God, may with right punish men forfollowing their compulsions; but if heorders his state in conformity with theforce of natural right, punishment willrarely be necessary. J ust as Hobbes recon-ciles the obligations of divine and natural

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law with the necessityofnatural right, thewise sovereign will reconcile the obliga- tionsof positive law with the necessity ofnatural right.

For example, it is only in a footnote that J ohnRawls says that his interpretation of justice asfairness has the characteristic marks of a naturalrights theory. See J ohn Rawls, A Theory of J ustice(Cambridge, Mass., 1971), p. 50611.Rawls does notmake it clear whether having the characteristicmarksofa theory is the same as being an exampleofsuch a theory. 2J ean-J acques Rousseau, SecondDiscourse in The F irst and Second Discourses, ed.Roger D. Masters (New Y ork, 1964),p. 95. 31bid.,pp.95-96. [bid., p. 129. Rawls recognizes thegreatness of Hobbess work, but regards it as rais-ing special problems. These special problems pre-vent Rawls from including Leviathan in his list ofworks definitive of the contract tradition. (SeeRawls, p. I ln.) Rousseaus remark suggests thatHobbess insight was decisive for the founding of thistradition. 5Thomas Hobbes, Leviathan (New York,1962), p. 103, henceforth cited as L . jThomasHobbes, De Cioe, in Man and Citizen, ed. BernardGert (Garden City, N.Y ., 1972), pp. 90 and 115,henceforth cited as DC, and De Corpore Politico inBody,Man and Citizen, ed. Richard S. Peters (NewY ork, 1962), p. 278, henceforth cited asBMC. p.115 and BMC, p. 278. EL, p. 124. gHobbessThucydides, ed. Richard Schlatter (New Brunswick,

N.J., 1975). pp. 6, 7, and 25. 116id.,p. 301. Illbid., p.381. IZTheA thenians give no clear account of howthe necessity of nature applies to the gods. I f thegods are constrained by nature to rule over the weakthey can blamelessly injure those who deserve nopunishment, including the Athenians. The piousNicias comes closest to ackowledging this in his lastspeech (hid., p. 500). As will be shown below,Hobbess account o divine justice attempts toremedy the defects of the Athenian position. 130nthe Spartans and the Athenians see in particularibid., pp. 68-76. 14Fora thorough examination o thevariations in the Athenian position see ChristopherBruell, Thucydides View of A thenian Imperialism,American Political Science Review, vol. 68. 11-17.Myunderstanding of Thucydides also owes much to Clif-ford Orwin. I5On this point see Leo Strauss,NaturalRight and History (Chicago, Ill., 1953), p. 200. I6DC,p. 97. I7DC, pp. 98-99. I8L, p. 487. 131bid.,p. 23.Vbid., p. 80. 2See Machiavelli, Discourses. 22L,p.206. *3For an excellent treatment of a major aspecto this important issue see Clifford Orwin, On theSovereign Authorization, Political Theory, vol. 3,no. 1.24L, p. 216, DC, pp. 100-101.25L,p. 262-263andOf L iberty and Necessity, in BMC. pp. 253 and 255.26L,p. 111. op. cit., Orwin.


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