Natural rights are a man’s right to his life, limbs, and liberty; his right to the produce of his personal labor; to the use, in common with others, of air, light, water. If a thousand different persons, from a thousand different corners of the world, were cast together upon a desert island, they would from the first be every one entitled to these rights.

—William Paley. The Principles of Moral and Political Philosophy, 1785.

Natural law

Every person has etched into his conscience the Golden Rule: ‘Do unto others, as you would have them do unto you.’ From this principle we derive our concept of natural rights, variously known as natural justice, natural law, and morality. It is to protect these rights that governments are formed and laws are passed. The purpose of the law is to codify natural rights, while at the same time implementing practical measures, not in contravention of those rights, which allow the individuals to interact together in a complex.

There are four categories of natural rights:

  1. rights that restrain actions which so obviously breach the Golden Rule that there can be no legitimate dispute about them—for example, the right not to be murdered;
  2. rights that only become apparent upon reflection, but which nevertheless command general agreement—for example, the right not to be taxed without representation;
  3. rights whose extent can be legitimately disputed—for example, at what point tax levels begin to violate property rights;
  4. rights that, though acknowledged, may be legitimately surrendered for a corresponding benefit—for example, freedom of movement is traded for the benefit of safety and convenience when everyone agrees to drive on the same side of the road.

It is the role of a written constitution to enshrine, and thus safeguard, the first two categories of rights, while politics should arbitrate and implement the people’s consensus on the third and fourth categories through legislation.

Some natural rights are inalienable

When Thomas Jefferson referred in the Declaration of Independence to ‘unalienable rights’, he was referring to the moral illegitimacy of laws that breached the most important and well-recognized natural rights—those that cannot be legitimately traded for a corresponding benefit. He was explaining that the colonists had decided that the British Government was so far in breach of natural rights that the colonists were morally entitled to do away with the British Government. They were not legally entitled, but, after examining their consciences, they felt they were morally entitled.

Natural rights are not legal arguments

Courts of law should be reserved for legal arguments. The proper place to make natural justice arguments is on the floor of the legislature, on news and opinion programs in the media, on the floor of a constitutional convention, or in extreme circumstances when raising a rebellion. It is a dangerous error for judges to determine cases on the basis of natural law. Doing so undermines the rule of law by interposing the arbitrary values of the judge.

Why judges should not decide cases based on the natural law

The finer points of morality (natural justice) are a question of personal opinion. If every person entrusted with legal authority felt he was entitled to substitute his own moral code for the law, it would lead to uncertainty and chaos. In a civilized society, procedures are agreed upon, and set down in a written constitution, for deriving and implementing the people’s consensus on natural justice. These procedures include elections, parliamentary majorities, referenda, and so forth. It is therefore a usurpation for the judiciary to pass off its own conception of morality as constitutional law.

The Ninth Amendment

The Ninth Amendment to the United States Constitution reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This clause does not elevate unenacted natural rights to the status of law by implying unenumerated rights into the Constitution. All it does is ensure that the Constitution is not used as a pretext to deny the existence of uncodified natural rights. It is, and can only be, in the nature of a rule of interpretation.

Natural rights and Chancery Law

The principles of Chancery Law incorporate certain fixed maxims of natural justice with limited and prescribed application. Judges may legitimately have regard to these maxims, but only as embodied within settled principles. When doing so, they continue to apply the written law and thus are not breaching the rule of law. The litmus test is always, “Would a thousand different judges arrive at the same outcome given the same facts?”

This article is an extract from the book ‘Principles of Good Government’ by Matthew Bransgrove