Here is Thomas Jefferson discussing his conception of natural rights with Francis Gilmore on June 7, 1816. It is an interesting argument.

No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him: every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him: and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. [W]hen the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded that on entering into society we give up any natural right. [T]he trial of every law by one of these texts would lessen much the labors of our legislators, & lighten equally our municipal codes. [T]here is a work of the first order of merit now in the press at Washington, by Destutt-Tracy, on the subject of political economy, which he brings into the compass of 300. pages 8vo. in a preliminary discourse on the origin of the right of property he coincides much with the principles of the present MS. but is more developed, more demonstrative. [H]e promises a future work on morals, in which I lament to see that he will adopt the principle of Hobbes, so humiliating to human nature, that the sense of justice & injustice is not derived from our natural organisation, but founded on convention only. I lament this the more as he is unquestionably the ablest writer living on abstract subjects. [A]ssuming the fact that the earth has been created in time, and consequently the dogma of final causes, we yield of course to this short syllogism. Man was created for social intercourse; but social intercourse cannot be maintained without a sense of justice; then man must have been created with a sense of justice. [T]here is an error into which most of the speculators on government have fallen, and which the well known state of society of our Indians ought before now to have corrected. [I]n their hypotheses, of the origin of government, they suppose it to have commenced in the patriarchal, or monarchical form. [O]ur Indians are evidently in that state of nature which has past the association of a single family; & not yet submitted to the authority of positive laws, or of any acknoleged magistrate. [E]very man, with them, is perfectly free to follow his own inclinations. [B]ut if, in doing this, he violates the rights of another, if the case be slight, he is punished by the disesteem of his society, or, as we say, by public opinion; if serious, he is tomahawked as a dangerous enemy. [T]heir leaders conduct them by the influence of their character only; and they follow, or not, as they please, him of whose character for wisdom or war they have the highest opinion. [H]ence the origin of the parties among them adhering to different leaders, and governed by their advice, not by their command. [T]he Cherokees, the only tribe I know to be contemplating the establishment of regular laws, magistrates and government, propose a government of representatives elected from every town. [B]ut of all things they least think of subjecting themselves to the will of one man. [T]his the only instance of actual fact, within our kno[w]lege, will be then a beginning by republican, and not by patriarchal or monarchical government, as speculative writers have generally conjectured.

Jefferson mentions a manuscript by Pierre Samuel Du Pont de Nemours, which he is trying to get Gilmore to translate. Jefferson himself translated — or at least edited the translation — of Destutt de Tracy’s book which should have been titled A Treatise on the Will and Its Effects, but which Jefferson titled A Treatise on Political Economy. One other Tracy work was published in America around this time, a commentary on Montesquieu. I have not read the Du Pont treatise, which was published a century later than Jefferson wanted. It is available on Google Books as National Education in the United States of America.

Du Pont’s son founded the Du Pont chemical business, and thus gave rise to the Du Pont fortune.

There are many interesting elements to this passage.

The first is the most obvious: the expression of a “natural right” in terms of a negation.

No man has a right to aggress….

This more than implies, it entails, possession of a right not to be aggressed against. This negative formulation became more common at the end of the century in England, among the individualists, especially Auberon Herbert.

Now, contra the honored Destutt de Tracy, who conceived of rights conceptually coherent as having no obligations, rights are, as numerous philosophers and legal theoreticians have since explained, only coherent in terms of obligation, or duty. A right is the flip side of an obligation; a right is a claim to obligatory treatment; a right articulates a duty. So the right Jefferson speaks of here is a fundamental and universal right that obliges all others not to aggress against the rights holder, that is, all have a right not to be aggressed against and none have a right to aggress.

The phrasing, though, is odd.

…against the equal rights of another….

Why not just say all are rightly free from aggression, and none can claim a right to aggress? That is, all are duty-bound not to aggress?

Jefferson does not appear to be hiding anything in the “equal rights” clause, for he goes on to say that laws may restrain us only to prevent aggression. This is quite clear so far.

But the next principle seems to provide a completely different standard:

…every man is under the natural duty of contributing
to the necessities of the society….

If what we call a natural right be a fundamental, universal right, a “natural duty” must be a “fundamental, universal duty.” But by the logic of the first principle enumerated, our fundamental, universal duty is to not aggress against others. Does an obligation to “contribute” to the “necessities” of society require that some may be compelled to do that, orthogonally related to the first enumerated right? May we coerce someone to do their duty by society? By others?

This is all very murky, for it seems to abridge the first right. If we all have natural rights to freedom from initiated coercion (aggression), then compelling a duty for some vague-or-not-so-vague pool of necessary social requirements looks a lot like initiating force, aggressing. The second principle looks like it could nullify the first. And certainly that is how many argue: they say this or that is “necessary” — road-building, alms for the poor, church construction and maintenance, the fine arts — and then proceed to extract the wealth necessary to fulfill the so-called necessity.

On the other hand, it is so vague that it may just be a supplemental way of looking at the first right: by not coercing others, we are contributing to the most necessary thing to the maintenance of society.

The third point is the most interesting, for here we wander into the territory marked by Robert Nozick in the first part of Anarchy, State and Utopia (1974): procedural rights. We all lack “a natural right to be the judge” between ourselves and others and it is our

…natural duty to submit to the umpirage of an impartial third….

This absence of a right to judge altercations and disputes of which we are a part is an interesting one, and is one that John Locke referred to as an inconvenience of the State of Nature, where (in his philosophical fiction, but not entirely unrealistic considering Jefferson’s discussion of the Indians) human beings go about doing precisely that, exacting revenge and recompense for perceived wrongs without the aid of another’s impartiality.

The Nozickian angle on this is to assert that this natural duty to submit to impartial third parties is a procedural right we all possess. Without it, we would be at the mercy of the strong, the unjust, the . . . well, you get the idea. Where do we get this right? In the wake of Nozick’s book, many libertarians simply denied any procedural right like this, such a nicety being only a matter of convenience and prudence. Or, as in Jefferson’s Indians, custom.

Jefferson, I bet, would regard this right as deriving from social necessity. Which is where the right to liberty comes from, too. And with social necessity we go back to the previous point.

Is this all there is to it?

Does this make sense?

One could argue that the basic right to liberty bakes into its cake this procedural right, too. And that many of the other oft-enumerated social necessities must be compossible with this basic, fundamental right, or else must be negotiated for.

And this latter point is important, I think. For there is a vast range of goods that are necessary for society that do not require compulsion to perform. We all need to eat. We all need to bury, dissipate, or somehow process into harmlessness our urine and feces. But none of these require a special right or a special duty, do they? Property rights define the limits of externalities such as excrement disposal, and property rights also allow us to cooperate to provide each other with the necessities of life like food, shelter, and education. There is no real reason to compel by universal duty — to make compulsory, mandatory — the production of most basic goods. At least, not so long as private property is allowed to work its way into the social fabric, and provide the natural regulation via the right to liberty itself.

Jefferson is more Lockean than Hobbesian. This is clear from the remainder of the letter, though it would have been interesting to see him carefully dissect Locke’s two treatises on civil government. Complaining about the Hobbesian element in his friend Destutt de Tracy’s work, he calls the Hobbesian approach “humiliating to human nature,” which I guess I can understand. Jefferson’s point is that Hobbes’s view was that

…the sense of justice & injustice is not derived from our
natural organisation, but founded on convention only….

. . . specifically, I presume, the convention entailed by deployment of Leviathan’s overwhelming force. Against this notion, Jefferson elaborates a moral sense doctrine in creationist terms: “Man was created for social intercourse; but social intercourse cannot be maintained without a sense of justice; then man must have been created with a sense of justice.”

The evolutionary revision of this notion was given by Herbert Spencer and others: “human beings are social animals; sociality requires a sense of justice, therefore they could not exist without a sense of that justice somehow ingrained, baked into the cake, so to speak; therefore we should not be shocked to see humans exhibit just such a sense, by ‘survival of the fittest.’”

A common objection to this sort of argument is to note that human being possess deeply anti-social natures, as well, and often engage in outrageous criminality and not infrequently display sociopathy and psychopathic tendencies. Which is true. But even most criminals betray a sense of fair play and justice. And the exceptions to an evolutionarily advantageous propensity do not disprove the propensity, it just means that when we discover someone so far outside the bounds tit-for-tat justice and common moral sense that they attempt horrible criminal acts, as a matter of justice we must wield what Jefferson says the Indians wielded: the “tomahawk chop.”

Interestingly, Jefferson conceives it an error to assume that governments arise from

…the patriarchal, or monarchical form….

. . . and he goes on to say that the Indians prove this, especially the Cherokee, who were in the process of setting up a civil government along republican lines.

Of course, what he does not mention is that they were mimicking the Euro-American form of government, but giving it a more egalitarian structure than even the Euro-Americans, since in their nearer-to-a-state-of-nature societies, hierarchies were not strong.

What Jefferson does not contemplate is the likelihood that most governments have been set up along patriarchal and monarchical and bullying principles, but that some less so.

But all are modern governments are based on assumptions of borderlines and territory and compulsory allegiance and coerced duties. Even those that are (or pretend to be) rights-based do implement some notion of “natural duty” as Jefferson did in his second principle, above, and this natural/civic duty principle is the de facto ground of all else. You are not allowed to not ally yourself with a government, these days. It is not like the Indians, where the “disesteem of society” defends basic rights and serves as the punishment for most rights violations. We are not allowed to ignore the State.

And this tension exists in this passage, and Jefferson has not argued it away. It remains in libertarian theory. Only the “anarchists” have dissolved it by dissolving any basic duty ungrounded in basic rights.

Though every now and then someone arises to take up the argument anew, the situation is still . . . unsatisfactory. Something seems off about “anarchy,” yet the case for the State appears incoherent and arbitrary, as if we were merely arguing for it because we cannot seem to get rid of it, not because it makes as much sense as a neat and tidy rights theory suggests that it should possess.

I wonder what Jefferson would have said about what happened to the Cherokee Nation, and Jackson’s forcing of their march on the Trail of Tears.

Perhaps had the federal government been better confined to defending natural rights, such a tragedy would not have occurred, and the boundaries of the Cherokee accepted as redrawing the borders of the adjacent, imperialist states that pushed for their ouster.

twv