The Declaration of Independence
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seventeenth-century natural rights philosopher, in his work Leviathan
(1651), reasoned that life in the state of nature must have been ‘‘nasty, brutish, and short.’’ For Locke, it was more of an inconvenience than a state of
misery. Whatever the condition of man in this state of nature, his natural
rights were not secure, and he found it necessary, therefore, to leave this
existence in order to protect these rights. According to both Hobbes and
Locke (and later Rousseau), this was accomplished by means of a social
contract—that is, man contracted out of the state of nature to create society. How this was accomplished, and how there could be an act of government before government was actually created, Locke did not say. Having
now formed society by a social contract, the members then entered into
a political contract with their rulers to establish a government. By the
terms of this second contract, the subjects agreed to obey the government
and the government in turn agreed to protect the natural rights of each
individual. Should the government fail to provide this protection, the
members of society had the right to replace the old government with a
new one, thereby exercising their ‘‘right’’ of revolution. Locke’s theory of
natural law, in other words, was not a theory of natural law at all, but a
theory of natural rights.
All of this ‘‘state of nature’’ business is pure fiction, of course, but there
were some who talked glibly about ‘‘natural rights’’ in the founding period and believed they possessed them. Like most Americans of his day,
Jefferson failed to grasp the inherent contradictions between natural law
and natural rights doctrines, and he therefore saw no inconsistency between Aristotle and Locke. It would be the task of later generations to
sort out the confusing and sometimes conflicting precedents that had
laid the foundation of rights in America. There can be no doubt, however, that some Americans thought they had been endowed by their Creator with so-called natural rights and acted upon that assumption.
But how do we distinguish desires from rights? If there is any basis
to the natural rights claim—and some contemporary scholars say there
is—it is in spite of Locke’s Second Treatise, not because of it. The argument
has been made, for example, that individuals in all societies (but not all
individuals in all societies) by nature and instinct desire at least some
personal freedom. From this observation it might be concluded that freedom is a ‘‘natural right.’’ But it would be ‘‘natural’’ because it conformed