Because Franklin decided to call Jefferson's idea of natural rights 'self evident,' many people believe they understand them perfectly. However, Jefferson based his conclusions about natural rights on empirical theory, not intuition, as this topic describes. Its implementation of positive law provides definitive and immutable answers to many issues that have been politicized in the USA, which this article describes.

Jefferson defined USA's natural rights in the Declaration of Independence
Jefferson defined USA's natural rights in the Declaration of Independence

Natural Rights as Positive Law

  • Empirical, not Transcendental. In preface. I am required to clarify that USA's natural rights are not claimed to exist in some absolute sense, independent of human existence. That is a frequent confusion with the transcendental theory of human rights. In any theory of rights, they are deduced as immutable from different premises, and the premises are based on different metaphysics. Jeffersonian natural rights are empirically derived--they are directly deduced from observation of how our existence actually is. So they are immutable, but not transcendental. The Negative Social Contract. The basis of modern natural rights is an imagined social contract, first described by Hobbes in his book Leviathan. Hobbes' premise was that people are fundamentally evil. The social contract therefore provides authority to government, so people do not live in perpetual fear of theft, murder, rape, etc. Because people cannot be trusted to act in the interests of society, Hobbes concluded that government must be an authoritarian system, to enforce punitive laws.
  • The Positive Social Contract. Locke improved on Hobbes’ negativity by starting with the premise that people are fundamentally good. Locke explored ho0w this enables a democracy in his Treatise on Government. Locke detailed the natural rights which Jefferson chose for USA’s social contract in the chapter “On Power” in his Essay on Human Understanding. This deduces what the rights should be according the ‘laws of nature and God.’ If everyone can pursue happiness, Locke reasoned, then more people act for the greater good, resulting in betterment of society. That is the objective of positive law. It is not ‘positive law’ because rights are entitlements, rather than restrictions. It is positive law because its objective is to enable good.

In summary, Locke's reasoning was as follows:

  • We are all created equal in the eyes of God. The purpose of creation is that God may grant us eternal life, to which we strive in all effort and love, and thus we are fundamentally good. In God's eyes, there is no need for equality in the property we inherit, or the physical gifts we are given, because it is what we do with what we have that really matters. So the purpose of equality is that we all be able to do good. This objective is necessary to the premise, because otherwise there is no justification for what the government ought to do, causing the theory to fail Hume's guillotine.
  • We have physical needs, because otherwise, we would be unmoving like rocks and stones. So God in His infinite wisdom created our need for food and drink. The need for sustenance creates a restlessness of the spirit, whence springs continual desire, which motivates us to act. Therefore life is the first primary right.
  • For each person the desires are different. Therefore we must have liberty as a secondary right, that each of us may seek that which satisfies us. In that way we find happiness in life.
  • We are able to suspend physical desire. When we are not seeking to satisfy our direct needs, we are free to act for the benefit of the greater good. If we are assured of liberty, some will choose to act in ways that benefit others. While we may find a simple happiness in hedonism, acting for the greater good is rewarded with a more solid, permanent, and eternal happiness. This results in the eradication of fear and enables the improvement of society in ways that would not otherwise be possible. Hence pursuit of happiness is the tertiary natural right.

That results in the three hierarchical rights, in order of precedence:

  • Life: right to water, food, shelter, and family
  • Liberty: freedom of choice in possessions, speech, religion, sexual orientation, marriage, and political view
  • Pursuit of happiness: right to acquire property, career, work contracts, recreation, and the arts

A full description of the deduction is ~30,000 words. Franklin therefore changed Jefferson's statement of natural rights as being "'sacred and undeniable" to "self evident," because not everyone can learn the full theory, yet the theories' results are intuitively understandable for most cases.

On the Theistic Premise, and Other Contentions

I am required to add to all such articles I share on this topic that several hundred people have already written me various arguments against Jefferson’s choice of Lockean natural rights. Most frequently I am sent lengthy objections to the required premise that God exists.

  • First, I have to repeat again, the result of Jefferson’s natural rights is that people are free to choose their own religions. However, the argument itself does still require the existence of God as a premise.
  • Second, many people still object, so they say it is wrong. Thus I am forced to state, again, that the USA used this definition of natural rights as a justification to rebel against British rule, and therefore, these natural rights are the source of legitimacy for the USA to govern itself.

You are of course free to disagree with the premises, as you are provided with that freedom under the natural rights themselves. Nonetheless, the consequence of denying the validity of Locke’s natural rights is to make the USA no more than a rogue state which deserves to be eradicated. This essay explains Locke’s theory, and how it works, because that is the reality in which we live--over which we have no choice--and our opinions as to the quality of that theory are totally irrelevant. Fortunately, as empirically demonstrated, it has been shown to be a very good theory, so we can all enjoy its benefits, whatever we might think of its premises.

Practical Applications

Many people find the theory of Jefferson's natural rights too abstract, and ask questions about how it works. This topic provides a few entertaining examples of how natural law provides answers to social conflicts in the USA, then addresses the problematic issues.

Simple Examples

In practical applications, the correct approach is thus not "what rights do I have which the government may not take away?" That would be viewing rights as entitlements. The correct question is: "what authority must the government have to maximize everyone's rights?" That results in the greatest amount of life, liberty, and pursuit of happiness; and hence the greatest prosperity and well being of all.

  • Right to Life. The most frequently cited example these days is water rights, starting from a golden era of plenty. People divide labor and specialize, to create a better life for all as first described by Socrates. One person decides to farm fish and buys all the lakes. But then there is a draught. The wrong way to approach this problem is for the person who now owns all the water to ask: "why should I sell my water for less than the maximum profit I can get?" The correct question is: “How much authority does the government have to limit the price which it pays the lake owner so that everyone can have water?”
    In this case, the answer according to natural law is, quite a bit of authority, because water is essential to life. Life takes precedence over liberty and pursuit of happiness, and only the lake owner has water, so the lake owner, in the interest of the greater good, has to provide the water. However, the government cannot deprive the lake owner himself of the ability to run a fish farm, as according to his own desires and chosen life pursuit. Therefore, the equation is very straightforward. The government pays sufficient money for the lake owner to rebuild his fish farm to the same condition as it would have been without a drought, and takes all the water needed to ensure that no one suffers from thirst.
  • Right to Liberty. Now suppose the fish farm owner, with his restored business, decides to raise prices on fish, and for this example, let’s assume there is no other place to obtain fish. Again, food is required for life, but unlike with water, people can eat other things. Thus the government cannot justify price regulation on basis of right to life. But the government does have the authority under the second natural right, that to liberty; for each person, having different desires, cannot find them equally satisfied if one person controls access to a commodity. Therefore the government has the right to prevent monopolization of markets, to ensure price competition.
  • Right to Pursue Happiness. Natural rights also give the government authority to collect taxes for education, so that children are free to pursue happiness in their preferred career. Now let's suppose there is a manufacturer of soccerballs, and there is a shortage of materials to make them. The pursuit of happiness is a lower priority than life and liberty, but it still exists. If many children are playing soccer at schools, the government can legitimately have the authority, under natural rights, to raise some taxes in order to pay for the increased cost of materials to make soccerballs. But as the absence of soccer balls only limits children's' pursuit of happiness to a limited extent, the amount of taxes which the government can collect is proportionally much less.

So that is the first straightforward example of how natural law works in real-world situations; it is a system of hierarchically arranged needs of the society to prosper. And a beautiful thing it is too, isn't it?

Utilitarian Practicalities to Maximize Happiness

After the USA declared independence, John Stuart Mill formulated a new theory of utilitarianism, based on earlier work by Jeremy Bentham. These theories on maximizing happiness provided the following main additions:

  • Punishment Proportional to Crime. In order to maximize happiness of a society, people who break its laws should only be punished as much as the reduction to life, liberty, and the pursuit of happiness that they cause to others.
  • Rule-Utilitarian Restrictions. In some cases, a small restriction in liberty can result in greater happiness for all. For example, requiring people driving in opposite directions on a road can reach their destinations more safely and quickly by being required to drive on separate sides of the road. The same argument extends to speed limits and other cooperative rules.
  • Act-Utilitarian Liberties. In some cases, rules may be broken without reducing safety or total liberty. For example, if a road is empty, driving somewhat over the speed limit is safe, giving rise to the concept of soft law.

Natural, Constitutional, Common, and Federalist Law

As originally conceived, constitutional law defined the structure of authority and formalized abstract conclusions from natural law. From that, common law aggregated prior decisions, so that legislation could build up consistently and fairly. The authority of constitutional law promulgates from natural law, and the authority of common law promulgates from constitutional law.

There remain cases when there is no single interpretation of how to handle a problem from natural law alone. Therefore, the USA introduces the concept of federalism. As originally conceived, the federal government should only enforce natural rights when the application to a practical situation is unambiguous. In those cases where more than one conclusion could be reached, the federal government should delegate the authority to the States. The reasoning was, each State could choose a different interpretation of the authority it is entitled to exercise, and people would then be able to live in the State with the rules most commensurate with their own opinions, resulting in further maximization of liberty and happiness.

Social Decay and Rousseau's Will of the People

That was the theory. In actuality, there have been major changes in the USA's demographics in the last century. In particular, a widespread adoption of atheistic beliefs led people not to seek the greater good, requiring the government to enforce more entitlements. The main example is social security. When the USA was founded, it was assumed that the rich would want to take care of the poor, so there was no need for extensive social programs. Similarly, it was assumed that children would want to look after their parents in old age. But with the increased amount of atheistic selfishness in the last century, the rich simply seek to be richer, and children do not support elderly relatives. So in the 1930s, Roosevelt introduced the New Deal, adding entitlement taxes such as social security to protect the poor and elderly.

With the decay in altruism, the Lockean social contract has also been incr4easingly replaced by Rousseau's. According to Rousseau, the social contract is not derived empirically from the human condition, but rather by the will of the people, which in practical terms results in a Darwinian race to the survival of the fittest, as the rich manipulate the choices of the less educated. Also, in a democracy, political parties continually attempt to corrupt natural rights, in order to favor a particular political group. Without the altruism on which Jefferson based his theory, Rousseau's Darwinian evolution has increasingly supplanted the benign society defined by Locke, so much so, in fact, that most people are totally unaware of Jeffersonian natural-right theory at all. Instead, most people now think of natural rights as individual entitlements.

Problematic Practicalities: Capital Punishment, Self Defense, and Abortion

That brings us to the difficult choices facing the modern world, paramount where there are political conflicts between conservatives and liberals on the right to life.

  • Conservatives hold that we are born innocent, and therefore, abortion is wrong; but if a person kills another, the right to life is lost, so capital punishment should be permitted. Similarly, a criminal aggressor loses protection under rights to life, and so conservatives support lethal self defense.
  • Liberals hold that we are free to make choices with our own bodies, and therefore, have a right to choose abortion; but if a person kills another, life still cannot be taken away. Similarly liberals believe that no person should be able to kill another in self defense.

But from natural-right theory, the answer is entirely the other way around:

  • All people have equal rights, and everyone has a primary right to life. Therefore there is never any situation where a government has authority to kill its subjects. Therefore, there is no justification under natural-law theory for capital punishment. Similarly, there is no situation where the government can permit one citizen to kill another intentionally, so by natural-law theory, self defense is justified, but only if it is non-lethal.
  • The Jeffersonian contract is based on the laws of nature. If there are no untoward natural problems, a pregnant mother will always give birth to a baby, because that I show nature works. Hence there is no situation where the government should permit the pregnant mother to kill a future citizen. In the latter case, though, there are some additional problems. For example, there is the case where a pregnancy goes so wrong that only one of either the mother or baby can survive. That cannot be resolved by natural law, and so it is a case where the legal decision as to what should happen should be delegated to the States.

There are additional exceptions and complications, but they are beyond the scope of what can be discussed in this already long topic. I would rather conclude by indicating that all these issues fall back on the first principle of natural rights in the USA: that of inalienability. Natural rights must be accorded to everyone equally, or they don’t work. The USA tried, unsuccessfully, to make slavery work. Even Jefferson did not object to owning slaves himself, because he was an honorable man who attempted to give his slaves the same natural rights that all free people enjoy, as a matter of principle. But not all people are so principled, and some will exploit their advantage. Hence it is shown, empirically, that natural rights must be accorded to everyone without exception, regardless of political view; and when natural rights are violated, social conflict always results to a lesser or greater degree; something which Locke called the opposite of the state of nature: a state of war. The greater the violation, the greater is the social conflict, which can occur as others attempt to subvert natural law to their own advantage in other ways (the slippery slope); or it can occur because, for example, a man unjustly put to death, in a miscarriage of justice, causes social dissent by his relatives.

As political partisanship continues to take more and more precedence over inalienable rights, people are increasingly less able to act for the greater good, and the power of the nation will continue to decline. And that is in fact we are now indeed witnessing as the USA is gradually loses ground to the other super-nations, Russia and China, while continuing to struggle with terrorist attacks, increasingly invoked by this nation's own violations of natural law.