The Social Contract and Human Rights.

The true civilization is where every man gives to every other every right he claims for himself.

--Robert G. Ingersoll

Over the years there has been an off-and-on discussion in the pages of the Humanist about the meaning of natural rights and human rights. For example, in an article entitled "Demythologizing Natural Human Rights" in the May/June 1989 issue, Delos B. McKown advanced the view that human rights possess no independent existence; they are mere creatures of law that "are neither immutable nor permanent."

In a direct response to McKown, Tibor R. Machan wrote the article "Are Human Rights Real?" published in the November/December 1989 issue. Denying McKown's proposition, Machan insisted that human rights are unalienable and inherent in human nature, concluding that, "without the `borders' that basic human rights define between individuals, people would be able to harm others or rob them of their achievements all too easily."

Responding to Machan, Anselm Atkins weighed in with his March/April 1990 article "Human Rights Are Cultural Artifacts," in which he rejected the notion of inherent human rights from the standpoint of evolutionary biology. Atkins argued that "a right is ... something furnished, granted to, or bestowed upon someone. It comes from outside--something `extra' to the being." He then concluded: "Philosophically, the only way to found or establish such a thing as a `natural right' is to presuppose a god who bestows and secures such rights. Absent a god, there can be no natural rights."

More recently, Fred Edwords, chronicling "The Advance of Human Rights" in the November/December 1998 Humanist, presented evidence that the whole concept of human rights as we know it is an extremely late development in human history--scarcely older than the seventeenth century--and that, even within this context, the idea was "applied in but a few small parts of the globe to a chosen few" until around the middle of the twentieth century.

My own position is that human rights are not legal fictions conferred by governments but are inherent features of our nature as human beings. And while it is clear that our knowledge and understanding of human rights are relatively modern, human rights themselves are as old as humanity.

All societies have rules or laws and require their members to obey them for the peace and good order of that society. In this regard, philosopher John Rawls assumes in his book A Theory of Justice that a society is defined by its rules. He writes that a society is "a more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them."

But why should any free and independent person consciously and willingly choose to obey any king or chieftain or the laws of a society? To answer this question, we need to understand that there are essentially two sources for the duty to obey such laws. The first is authority; the second is mutual consent.

In Europe, the authoritarian doctrine of the divine right of kings, evolving out of the Middle Ages and continuing into the eighteenth century, asserted that kingly authority was derived from the higher authority of God and therefore could not be called into question by either parliament or people. In many other cultures rulers were seen as gods themselves or as direct descendants of gods. Thus obedience to such figures of authority, usually through obedience to their duly ordained subordinates, was seen as a basic duty.

Mere obedience, however, is not necessarily an ethical act. When obedience is either enforced through conquest or slavery, or is simply the result of blind and unthinking compliance with the law, there is no free, intelligent, and conscious choice involved; there is no consent. To yield to the strong is an act of prudence, not an act of respect for the law. Only when submission to the authority of a society is learned and accepted as a thoughtful, deliberate choice does acceptance of this duty become an ethical act.

That is where the second source of the duty to obey the laws comes from: negotiated consent to be so obligated--a consent mutually given and accepted by all members in the society. As Samuel Johnson observed in his 1766 Letter to Boswell: "Life cannot subsist in society but by reciprocal concessions."

This concept of the mutual consent of the governed became the basis for the denunciation of the divine right of kings at the dawn of the European Enlightenment. It was first enunciated philosophically by John Locke in 1690 in his Two Treatises on Civil Government, in which he also developed his theory of self-government and the social contract. He wrote:

   Men being, as has been said, by nature all free, equal and independent, no
   one can be put out of his estate and subjected to the political power of
   another without his own consent, which is done by agreeing with other men,
   to join and unite into a community for their comfortable, safe, and
   peaceable living, one amongst another, in a secure enjoyment of their
   properties, and a greater security against any that are not of it.... When
   any number of men have so consented to make one community or government,
   they are thereby presently incorporated, and make one body politic.

After that, majority rule prevails.

Locke's theory of self-government and the social contract became the philosophical basis that moved Western civilization from authority to agreement as the basis of the civic duty to obey society's rules. It constituted one of the greatest paradigm shifts in history.

In our time, John Rawls has transformed the classic conception of the social contract from the great myth of Western political thought info a parable--a story or thought experiment used to analyze an abstract concept or explain a moral or ethical process. In Rawls' scenario, we imagine a gathering of human beings who have been stripped of their accidental characteristics: sex, age, race, nationality or tribe, social status, wealth or poverty, good health or disability. They are left with only the essential characteristics of their human nature.

Thus each is an animal that is a predator with needs and appetites for food, clothing, and shelter. Each needs and wants a mate and territory. And each has basic instincts to protect oneself and one's offspring. Furthermore, each is rational, able to think at a very abstract and symbolic level, and each has the power to remember that action or inaction has consequences and that planning is possible. These humans can make free choices about what is in their own self-interest--and they understand their enlightened self-interest sometimes values long-term goals over short-term satisfactions. Above all, they are social animals that know how to cooperate with each other.

What has been described here is what the law refers to as "the reasonable person." Each of these human beings becomes that hypothetical or abstract person who will act reasonably under any circumstance.

We then add to this condition the situation that these reasonable people will now come together and make rules for the commonweal, and they will do so behind "the veil of ignorance"--that is, they are without knowledge of who or what they will become when they return to society. They are ignorant of what sex, age, or race they will be; what nationality or tribe they will belong to; what social status or wealth they will possess; what state of health or disability they will find themselves in. They are thus unaware of how the rules they make will affect each of them.

Under these circumstances, Rawls argues, these reasonable people, completely equal in bargaining power and absolutely impartial, will make rules that are both reasonable and just--that is, they will make rules that burden and benefit each person equally. This becomes the ideal social contract.

But how does this relate to real life, where no such gathering of equal and impartial reasonable people has ever taken place and where no such social contract has actually been drafted? It is here that we must turn to the concept of an implied or tacit consent to such a social contract.

Of course, such an implied or tacit consent to a social contract by most citizens or subjects would be difficult to establish. How then can people generally be obligated to obey laws based on social contract theory? Our consent is an assumed consent since it is taken as granted or true that every reasonable person in a state of perfect equality and absolute impartiality, if asked, would give such consent. (In real life, where consent is actually withheld from time to time, it is assumed that the conditions of rationality, equality, or impartiality are imperfect.) Therefore every member of a given society is automatically bound by the social contract, since every member's consent is assumed and required. It is this universally assumed consent to the social contract that constitutes the general basis for political duty.

However, assumed consent is not actual consent; it is consent that is imputed to each person as a member of society. It is, therefore, not an ethical act. Only when people explicitly acknowledge and accept the duties imposed by the social contract, with knowledge and forethought, do they perform an ethical act. And it is such explicit consent to the duties of the social contract that internalizes a person's obligation to obey the law.

Basic duties are natural duties since they arise from our nature as human beings. However, these natural duties are not perfected until we form ourselves into social groups, since duties are relationships. For example, the duty not to kill each other becomes a duty only with the formation of the social contract. Before that, it is an inchoate duty. Basic or natural duties are the substantive and necessary provisions of the social contract, but not all the duties in our society are basic. How, then, do we discover which among our many duties are basic? We use the reasonable person test: a duty is a basic duty and a substantive provision of the social contract if reasonable people with equal bargaining power and no knowledge of how the duty will affect them will unanimously agree to it everywhere and at all times.

Let's take an example. Our process of rational analysis concludes that, when reasonable people gather in a state of perfect equality and absolute impartiality to negotiate the basic rules for a peaceful and just society, the first subject must be war or peace. By definition, there must be a mutual agreement (or law) not to kill (or injure) each other. The agreement not to kill each other is the condition precedent to a peaceful society. Since we begin with the presumption that a reasonable person is motivated by rational self-interest and the basic instinct to survive and therefore desires a peaceful society, every reasonable person will mutually agree not to kill any other member of that society. Moreover, this agreement must be unanimous, since it is essentially the outcome of a disarmament negotiation, consider the possibility that there is one holdout to the accord. No other party to the proposed compact would surrender weapons unless and until all others in the group have laid their weapons on the table. So the consent must be unanimous and the duty imposed by the agreement universal. Using the reasonable person test, the same analysis can be made of every basic duty that we are obligated to respect. These will be very few.

So at last we can define what we mean by the social contract. It is the compilation of all our basic or natural duties. The social contract is that fundamental compact that consists of the rules imposing basic duties, assigning rights, and distributing the benefits of political, social, and economic cooperation, unanimously agreed to by reasonable people in a state of perfect equality and absolute impartiality. This contract is not the result of a historical event; it is the result of rational and legal analysis and hypothesis. The reasonable person test asks: would reasonable people agree to this or that duty? Would their agreement be unanimous--cross-cultural, cross-generational? The answers are usually given by lawyers, judges, politicians, philosophers, professors, and sometimes by popular vote. While the assembly of reasonable people is hypothetical and their deliberations behind "the veil of ignorance" a parable, the social contract that results from this rational analysis is real. It is the fundamental compact that is assumed to exist in every society.

When governments are formed and laws are made, the social contract becomes positive law--the laws of a particular society. It is similar to an oral contract becoming a written agreement. However, positive law must conform to the agreements of the social contract if they are to be just. Basic natural duties necessarily imposed by the social contract must continue under the laws of every society and government. Organic documents or constitutions must respect basic duties of the social contract because, as we shall see, it is these basic natural duties that give rise to natural or human rights.

What is a right? A right is one side of a relationship; your right is the duty of another. What is a human right? A human right is a relationship arising from our nature as human beings that entitles an individual to certain conduct from all others. It is a contractual right flowing from the social contract that imposes upon all others the necessary and universal duty to act or refrain from acting in a certain way. A human right, however, should not be confused with a possession, like an apple or a house. Nor should it be equated with a human power, like the power to think or see or live. Rather, a human right is a relationship between an individual and all others that entitles a person to certain conduct from every other person and from society. You have the power of life, but the right to your life is created when all others promise not to kill you.

Human rights, or natural rights, are the flip side of the natural duties of the social contract. They are the quid pro quo of the social contract. Human rights are the benefits negotiated by our theoretical reasonable persons and received by each of them as a result of their agreement to accept the natural duties imposed by the social contract. Human rights are the consideration for the obligations assumed under that fundamental agreement.

Recall that when parties enter into a contract each becomes obligated to the other and each reciprocally acquires a right to what is promised by the other. So when we say that you have a right to life, we mean that there is a corresponding duty imposed upon all other persons in our society, and upon the society itself, not to kill you. Therefore each person within that society is entitled to the enforcement of these rights by the government against offending members of that society and against an abusive government itself, not only on behalf of the society as a whole but on behalf of each victimized individual member.

When the authority of a lawgiver, such as God or a king, is made the basis of an obligation to obey good laws, the benefits to society as a whole can be seen but individual rights are not clearly defined. However, when mutual consent emerges as the basis for such an obligation, and when self-government of an adult society becomes a reality, then the existence of individual human rights is revealed quite clearly.

Human or natural rights are only those that arise from the acceptance of natural duties--no more and no less. So to dis: cover a new human right we must first discover a new natural duty, necessary to a peaceful and just society, general in its application, and accepted by consensus. There can be no human right without the acceptance of a corresponding natural duty.

It is equally true that where human rights are abridged or the benefits of social cooperation are denied, the willingness to observe the basic duties of the society is diminished. In fact, the denial or abridgement of human rights constitutes a breach of the social contract. It is no accident that those in a society who perceive themselves as underprivileged rebel and commit crimes against those perceived as privileged.

Human rights are universal since the reciprocal basic natural duties established by the social contract are general in their application to all people and at all times. However, the manifestation of these rights and duties will vary from civilization to civilization, since the degree of knowledge and understanding of these duties and rights will vary and the expression of these duties and rights will be exhibited according to each society's history and culture and the sense of justice of different people. Nonetheless, the underlying principles are the same everywhere and at all times. Human rights are foreign to no culture and native to all nations, and it is the universality of human rights that gives them their strength.

We assert that these rights are unalienable--that is, they cannot be taken away or even abridged. Therefore no ethical government can deny these basic rights to its citizens since the people don't receive them from government. Basic rights precede the formation of government, and it is the duty of government to preserve, protect, and defend these rights equally for all its citizens. Moreover, government has the obligation to protect the rights of visitors, travelers, and resident aliens within its jurisdiction and to respect the human rights of the entire human family. Offensive war is immoral and unethical; defensive war is tolerated only when reasonably necessary for the self-defense of one's own country or another innocent country victimized by aggressive war.

Human rights are indivisible and interdependent. Everything obviously depends upon the right to one's life; however, the right to one's life is inadequate if a person is enslaved or falsely imprisoned. And to be free is a cruel sham if one lives on the edge of starvation. Human rights need to be enjoyed in their entirety, as an indivisible and interdependent whole, in order that people may truly live the good life as human beings in a peaceful and just world.

In the United States, constitutional rights are those rights found in the federal Constitution. But not all constitutional rights are human rights and not all human rights are spelled out in the Constitution. Specifically, First Amendment rights and the prohibition against slavery are both human rights and constitutional rights. However, most of the other constitutional rights are procedural devices designed to enhance equality and the franchise and to protect life, liberty, and property. For example, habeas corpus and the right to a trial by a jury of one's peers are not human rights; they are procedural safeguards for human rights.

Clearly, then, there are very few human rights--life, liberty, and the pursuit of happiness--but they are basic to our ability to live as human beings. Basic to all is the right to one's life. The right to liberty includes liberty of the body--that is, freedom from slavery and false imprisonment--and liberty of the mind--that is, freedom of conscience, in spoken and written communications, and in association with others. The concept of ordered liberty adds the right to marry and to raise a family and educate one's children according to one's best lights. The pursuit of happiness includes the right to acquire and own property and the right to a minimum standard of living. In recent years, the right to privacy has been added to the short list of human rights.

How do we resolve the apparent conflict between unalienable rights and government by the consent of the governed? Self-government ultimately boils down to government by the majority of those voting. The issue is whether human rights can be abolished or abridged by a majority in Congress, a majority vote in a public referendum, or a supermajority through the process of amending the Constitution.

The philosophy, history, and Supreme Court decisions of the United States have consistently held that human rights--including First Amendment rights--are not subject to a majority vote. Unalienable means unalienable. As Ralph Ketcham states in The Anti-Federalist Papers and the Constitutional Convention Debates:

American political thought and experience after 1776 in fact highlighted a tension built into the Declaration of Independence which proclaimed in one clause that certain rights were "unalienable," and in another that "Governments ... derive their just powers from the consent of the governed." Rights to life, liberty, and the pursuit of happiness were not to be submitted to a vote or to depend on the outcome of elections; that is, not even the consent of the governed could legitimately abridge them. But it was nonetheless possible that the people, through their elected representatives, might sanction laws violating "unalienable" rights. Suppose legislatures, state or national, passed laws abridging freedom of the press, or violating liberty of conscience, or permitting default on contracts, as happened in the 1780s. Which principle had priority, that of "consent" or that of "unalienable rights"? Unless it could be assured that all, or at least a majority of the people would always protect "unalienable rights," which few thought likely, the American Revolutionists seemed committed to propositions not always compatible. The Federal Constitution of 1787 was one effort to contain the tension, and the debate over its ratification often revolved around whether the framers had properly adjusted the balance of the two principles. Virtually all the members of the Federal Convention, and both sides in the ratification struggle, sought to fulfill the purposes of the Declaration of Independence to both protect rights and insure government by consent. The key differences arose over which purpose to emphasize and what mechanisms of government best assured some fulfillment of each.

There is no power in our government--be it Congress acting through a majority of both houses and with the consent of the president, the Supreme Court acting through a majority of its justices, a plebiscite of the whole people, or even a supermajority acting to amend the Constitution--that can abolish or abridge human rights; they remain even if denied. The natural duties of the social contract are ethically binding upon our federal and state governments, and the human rights flowing therefrom cannot be taken away in whole or in part.

However, Congress and the courts do have the power to define those rights--as in the right to life and capital punishment--and to describe the outer boundaries of those rights--as with the exercise of free speech and the prohibition against defamation--and to balance one right against another--as in the case of freedom of public assembly and the needs of public safety. And as our knowledge and understanding of human rights develop, we can improve or expand the scope of existing rights--as with the application of free speech rights to the Internet--and identify or define new human rights--as with the right to privacy.

So we see that universal human rights are real. They are derived from our biological nature as social animals and the logical principle of reciprocity as applied by reasonable people through a theoretical social contract. Rights, of course, imply duties, and those duties fall as much upon governments as individuals. So rights cannot be abolished by governments or even by democratic majorities; they can only be recognized.

Governments therefore become just when they enforce the basic natural duties and protect the human rights flowing therefrom that constitute the social contract. And individuals become ethical when they freely acknowledge and affirm obedience to these basic duties as a personal obligation and give their informed consent to respect and honor the human rights of all other human beings.

Robert Grant is a practicing attorney and former judge living in New Rochelle, New York. He is a lecturer and the author of American Ethics and the Virtuous Citizen, published in October 1999 by Humanist Press--a book which expands upon and develops the ideas in this article.