Natural Rights, Equality and All That
FRANKEL, MARVIN E.
Perspectives NATURAL RIGHTS, EQUALITY AND ALL THAT By Marvin E. Frankel A little more than 200 years ago, Jeremy Bentham turned his steely gaze on the French Revolutionary Declaration of the...
...Even Jefferson, for all his tawdry rationalizations on the subject, knew that his slaves were in no remote sense allowed to be "equal" to other folks...
...Professor Charles L. Black Jr., who has inspired law students at Columbia and Yale for over half a century, sets forth eloquently in A New Birth of Freedom (1997) his thesis that the Declaration of Independence, far from being simply an ancient icon, should serve as a steadily fresh and generative "commitment," with "the force of law," to the securing of vital and as yet unrealized blessings...
...The United States has lagged behind many countries—France, England, even Russia—in ratifying an array of more recent human rights covenants...
...But he continues in his ninth decade to keep it brightly in view...
...and on the Elimination of All Forms of Discrimination Against Women...
...Bentham expressed his own conclusions in starkjeremiads...
...An incomplete list of the commitments we have thus far failed to formally accept includes those on Economic, Social and Cultural Rights...
...Closely related to the pronouncement on "natural rights" was the proclamation that "men are born and remain free, and equal in respect of rights...
...When Thomas Jefferson wrote that all were created equal, did he just happen to overlook the scores of slaves in his household, including at least one who could scarcely choose as an equal whether to gratify his lust...
...Today, in courthouses and on the streets, aspects of the füll meaning of equal rights as agoal remain contentious...
...Tinctured perhaps with hypocrisy and with some convenient ambiguity in its inception, our Declaration is best seen as the statement of an ideal, unfolding still and still to be realized more fully...
...Despite the soundness of his position that both the French and the American Declarations were "inaccurate" when they said "all men are created equal," time has refuted his view that those pronouncements were nonsense, with or without stilts...
...His books include Faith and Freedom: Religious Liberty in America and The Grand Jury: An Institution on Trial, co-authored with Gary ? Naftalis, which first appeared as a special issue of The New Leader...
...There is no way to doubt that the august signers of our Declaration knew as well as we do about the stark inequalities among humans—in endowments, social distinctions, inherited wealth, and all the other chance delights or miseries with which fate visits us...
...In this sense the idea is fatuous...
...We have survived such things, but other inanities continue to be trumpeted as matters of natural law, often as excuses for assaults on individual freedom...
...He found it a mess of sloppy ambiguities, illogic and smug foolishness...
...Then there is our enthusiastic and increasing use of the death penalty, at a point when it has effectively been abolished in all the democracies of the West...
...But his denunciations ran mostly to greater ferocity...
...The revolutionists declared liberty and equality as describing "natural" qualities "prior to the existence of government" and not dependent, therefore, on government creation, support or enforcement...
...He went on to a list of contrasts...
...If or when somebody heats a gas and it contracts, we will have to revisit and possibly revise Boyle's "law...
...Bentham's barbs could be turned no less aptly against our own, earlier Declaration of Independence...
...If the charges in Bentham's indictment stand, what are we to conclude at the millennium...
...Even as an aspiration, the declaration of equality in 1776 was too narrowly shared in a slaveholding society to shine as the universal beacon the signers may have thought themselves to have lighted...
...The right to due process, on the other hand, however much we cherish it, is a human creation (and a recent one at that) subject to human revision or repeal...
...Far from being junked as Bentham's scorn would have dictated, the idea of equal rights has spread around the world...
...As described by Jefferson and others, natural law was part of the "Laws of Nature," like Sir Isaac Newton's law of gravity and Robert Boyle's law regarding the behavior of gases...
...As the oldest contemporary democracy steadily in business, we have a right to take pride in our two centuries of moral and political leadership toward the Universal Declaration...
...Its seventh Article, in phrases long familiar to Americans, says: "All are equal before the law and are entitled without any discrimination to equal protection of the law...
...Contrasting the world's admiration for France's contributions to the understanding of chemistry, he found the Declaration of Rights not only foolish but dangerous...
...That too was an aspiration, a promise not yet kept more than partially...
...A recent book by a great legal scholar casts light on the path to be taken...
...It required almost a hundred years and a ghastly Civil War before the Fourteenth Amendment undertook, with a special eye to the freed slaves, to guarantee for everyone "the equal protection of the laws...
...So should we all...
...All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination...
...The least of his objections was that the French revolutionists were engaged in subversion, in "teaching grandmothers to suck eggs...
...So far as we know, when we speak of Boyle's andNewton's "laws" we mean regularities that humans were able to perceive but whose existence they were in no way responsible for...
...where it rose to describe "natural and imprescriptible rights," he called this "rhetorical nonsense—nonsense upon stilts...
...He saw all such declarations as "the mortal enemies of law, the subverters of government, and the assassins of security...
...With detours and sporadic backsliding, we continue on the journey to achieve this ideal...
...He observed that on "the subject of the fundamental principles of government, we have seen what execrable trash the choicest talents of the French nation have produced...
...Marvin E. Frankel, a former law professor and Federal District Judge, is a practicing attorney in Manhattan...
...If the Declaration did not describe accurately conditions then current, it did prescribe an unlimited vista of human possibilities...
...on the Rights of the Child...
...All men born free...
...The confusion between observed and enacted law has led over the centuries to an acceptance of doctrines ranging from the right to own slaves to the rights of workers and their bosses to contract for an 80hour week...
...That is a serious lapse when you consider the poor, the deprived, and the minority origins of almost all death row inhabitants...
...Black recognizes that the winds of legal history have blown recurrently in the face of his vision...
...Equal...
...In the verdict of history, the key is the important distinction between what is and what ought to be...
...But we know now, perhaps better than Bentham did, the force of shared aspirations, firmly asserted in a society that strives to be democratic—and scarcely anyone doubts that the statement and evolution of the ideal have moved the species toward a higher plane...
...Where the Declaration spoke of "natural rights," he termed this simple nonsense...
...He condemned the "imaginary laws" proposed by any declaration of rights...
...So the Declaration of Independence, grand as it is in many respects, is tarnished by an overcast of hypocrisy, blind assumptions about the world of its authors, and prematurely Orwellian doublethink...
...The issue raised by these references to "natural law" remains a lively one to this day...
...We could all add to it today: Michael Jordan versus the veriest klutz, Einstein as opposed to an idiot, the genetically joyous and those of us who come woebegone from the womb...
...How could anyone say this at a time when "so many men [were] born slaves...
...Last December 10 marked the 50th anniversary of the Universal Declaration of Human Rights, drafted by the United Nations Human Rights Commission with Eleanor Roosevelt as Chair...
...The sort of thing he has in mind ranges from the erasure of poverty ("a constitutionaljusticeof livelihood") to a true protection for sexual preference and individual lifestyles generally...
...Bentham asked sardonically...
...The notion of "natural law" generally, at least in the simple formulation of the Declarations and other 18th century expressions, offers anything but a recipe for clear thinking...
...Perspectives NATURAL RIGHTS, EQUALITY AND ALL THAT By Marvin E. Frankel A little more than 200 years ago, Jeremy Bentham turned his steely gaze on the French Revolutionary Declaration of the Rights of Man and Citizen...
...Our celebration of ourselves, clearly, should be tempered by the knowledge that we have a long way to go...
...In its first sentence, our Declaration invoked "the Laws of Nature and of Nature's God" to justify the break from Britain...
...Black challenges the judges, the lawmakers, and all of us to see that the Declaration's "right to the pursuit of happiness" should entail steady extensions of "human rights, named and unnamed...
...At the same time, we should note some arguable evidence that we have been slipping from our place in the front ranks of the ongoing struggle for equal rights...
...The right of the heir of the most indigent family equal to the rights of the heir of the most wealthy...
...His is a dramatic step beyond Bentham's solid but dry and incomplete logic...
...I share Bentham's skeptical view of the idea that the Creator fashioned these "natural rights...
Vol. 82 • April 1999 • No. 4
