On what basis are political constitutions actually formed and remain valid? Where do rights come from? Edmund Burke offers us an account different from that of many of our contemporaries.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – Preamble to the Declaration of Independence of the United States

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare. – Bill of Rights, 1689

Where do “rights” come from? Are they to be found tangled in DNA? Can they be discovered, so that as human wisdom increases we find more rights that people ought to possess? At what age does one have rights, and which rights? Is there a right to privacy? What about a right to choose your own pronoun?

Thomas Jefferson eloquently expressed one view—that it is self-evident that all men (women, persons) have certain unalienable rights. These are endowed by a Creator, yes—but they are self-evident, and exist separately from that Creator. An atheist can recognise those rights. (Kant argues the same.) Jefferson limited the enumerated rights to just three: life, liberty, and the pursuit of happiness—though how much is bound up in just those three!

The Declaration of Independence is stirring stuff, and even the crustiest anti-Whig will resonate at some level with that first sentence. Yet Jefferson’s contemporaries and successors in Enlightenment liberal thought expressed a new conception of the human state—man became autonomous, with rights inherent to him from birth. These might well be divinely-endowed, but they were individually owned, and determinable by pure reason.

Consider Rousseau on slavery: “Even if each person could alienate himself, he could not alienate his children; they are born free men; their liberty belongs to them, and no one has a right to dispose of it except themselves” (Social Contract I.4, emphasis mine).[1] Personal freedom is inherent and individual. Rousseau is even sceptical an individual can wilfully alienate their own freedom and choose a state of true slavery.

Again, Mill speaks of liberty this way: In the part which concerns merely himself, his independence is, of right, absolute. Over himself, over his own body of mind, the individual is sovereign” (On Liberty, Chapter 1, emphasis mine).[2] In the same place he seems to affirm the view of those advocates of the freedom of religion that “freedom of conscience [is] an indefeasible right.” He does not base his broader argument on the inherence of rights, but on their utility; however, his intellectual heritage is clear. We shall return to that idea—heritage.

Finally, to take a more modern—and legally foundational—text, the Universal Declaration of Human Rights begins its preamble following Jefferson: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

This is the dominant narrative of rights in our age, is it not? If there was ever a debate, it has been won decisively; the Universal Declaration is the proof. Perhaps we can scarcely believe there could be a debate—who dares deny that people have automatic “human rights,” which they are born with, which the law ought to recognize and guarantee?

As uplifting as some of the quotations above may be, and as emotionally compelling as the concepts might seem, there do seem to me to be some queries to raise. Indeed, what is self-evident to me are not the rights themselves, but the problems with the claims surrounding them.

Has anyone ever mapped these rights? Which explorer discovered them? Where is the proof of their existence? If they are rationally self-evident, why is there such disagreement about their limits? Why do perfectly intelligent trans-persons and radical feminists disagree strongly on what human rights mean when it comes to the term “woman”?

Let us say we point to Jefferson, or even Thomas Paine; there is a deity who has endowed us with these rights. If this be a rationally-discoverable deity, why is there not widespread agreement on the matter? There is fairly little debate about the nature of angles in a triangle, and most of the basic facts about DNA or the genesis of stars are agreed. If these innate rights are given and therefore guaranteed by a deity, why is the deity’s existence not rationally self-evident?

Of course, we may conclude that these rights are rationally self-evident to those with a high degree of intelligence, but that brings us to a different problem—the claim of “equality” between all persons. What do we mean by that? We cannot mean that people are genuinely equal as to qualities, skills, abilities, or character. Some people are brave, others cowardly; some intelligent, some block-thick. There is no natural equality as to, well, quality. We might claim it’s more of an equality of quantity, with everyone having roughly the same number of chromosomes and capping out at certain adult heights, but that seems like a pointless thing to have established. After all, there are no indefeasible rights discoverable inside the chromosomes. There are no Paine manuscripts typed into the triple helix.

Our modern conception of rights is quickly exposed as either potentially true but non-self-evident, or plainly untrue. We might choose to turn to a model of revelation to reveal the true depth of human dignity—and Calvinists like myself would loudly amen!—but this seems a dubious basis on which to command assent from a pluralistic society.

Burke on Rights

On what basis are political constitutions actually formed and remain valid? Where do rights come from? Edmund Burke offers us a different account (one which sparked the savage, point-missing rebuttal by Paine in Rights of Man). Burke wrote extensively on the nature of rights throughout his career, and his view—contra the claims of his critics—did not significantly change. Burke’s central claim—expressed in his speeches on the American colonies, and in his demolition of the French Revolution—is that rights in a civil sense are not inherent but inherited. Now Burke believed in a Creator, in a moral order to Creation, and in the natural dignity of mankind—but he did not believe civil society existed by mere appeal to those facts.

Instead, Burke took the prudential and pragmatic view that rights were property, and a property which is passed down from ancestor to descendant. This is why, of course, property rights are so vital to Burke, and why the rapine of clerical property in France so horrifying to him.

Burke’s most famous form of this argument comes, indeed, in Reflections on the Revolution in France. Thus Burke in Reflections:

You will observe, that from the Magna Carta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom without any reference whatever to any other more general or prior right.

No general right discoverable in nature grants the Englishman his rights, Burke asserts. Indeed, this had been a fundamental claim made in relation to matters to do with the American colonies, over 15 years prior to writing Reflections. He argued, in his Speech on Conciliation with America, that the British government must proceed “not according to our imaginations, not according to abstract ideas of right,” but to the “true nature and the peculiar circumstances of the object which we have before us.” He thought appeals to abstract rights “no better than arrant trifling,” at least as it came to the American crisis.

Instead of such general or abstract rights, Burke appeals to the concept of inheritance. To reframe our earlier analogy, you cannot demonstrate any presumption of ownership of a property by looking at the claimant, but you can demonstrate that presumption by the fact he is living in the house, and it is full of his furniture, his family pictures, his children’s heights marked in charcoal on the stairpost. You will not trust a stranger who merely asserts he has a deed to something, but should he produce that deed, you will grant the matter.

Burke puts this argument to the rout and pursuit of the English Radical supporters of the French Revolution. They claimed that in the great English Revolution of 1688, it had been established that by virtue of their natural rights, the English people—and therefore any people—had the right “to choose own own governors,” “to cashier them for misconduct,” and “to frame a government for ourselves,” to quote Dr Price, Burke’s immediate target. This allowed the people to legitimately break the law in pursuit of the just overthrow of the government, as the French Revolutionaries had done in 1789 by their imposition of a new form of government by force.

Burke demurred by pointing at the great body of English law, including especially the revolutionary documents of 1688 themselves, to demonstrate that this was open falsehood. Magna Carta granted rights to the petitioners and their heirs; the accompanying Forest Charter returned ancient rights to those using the forests. The Petition of Right of 1628, the Declaration of Right of 1688, and the Bill of Rights of 1689 all relied upon the language of inheritance for their force. As the Bill of Rights put it, the Lords and Commons were “vindicating and asserting their ancient rights and liberties.” Ancient, originating in the past, before the birth of any then alive. Rights and liberties granted as property, passed down, defended.

Indeed, it was not only the aristocratic and middle-class revolutionaries of 1688 who appealed to ancient right. English Radicalism has often done the same—what else did the Levellers desire but a return to old arrangements, which were theirs by historic right? And when trouble stirred in the American colonies, Burke argued powerfully—in hopes of peace, of a settled and equitable commonwealth, in defense of the colonists—that it was this very English impulse that led the Americans to dissent.

First, the people of the colonies are descendants of Englishmen. England, Sir, is a nation which still, I hope, respects, and formerly adored, her freedom. The colonists emigrated from you when this part of your character was most predominant; and they took this bias and direction the moment they parted from your hands. They are therefore not only devoted to liberty, but to liberty according to English ideas and on English principles. Abstract liberty, like other mere abstractions, is not to be found. Liberty inheres in some sensible object; and every nation has formed to itself some favourite point, which by way of eminence becomes the criterion of their happiness.[3] – Speech on Conciliation with America, March 22nd 1775

The Americans love liberty by descent, says Burke, by their nature as Englishmen, not by appeal to pure reason. They love liberty, in a word, by inheritance. When arguing that certain rights should be granted the Americans, Burke denies that any defect in the language of the motion is his; in fact, he says, he is merely quoting from English Acts of Parliament: “it is the genuine produce of the ancient, rustic, manly, home-bred sense of the country. I did not dare to rub off a particle of the venerable rust that rather adorns and preserves than destroys the metal.” All Burke proposes is giving these Englishmen what every other Englishman already has by right of inheritance. These English colonists demand certain rights, and there is no way to quench that demand except by granting them, because “we cannot, I fear, falsify the pedigree of this fierce people, and persuade them that they are not sprung from a nation in whose veins the blood of freedom circulates.”

Indeed, Burke conceived a wider communion than either a property deed or a cultural tradition might suggest to us. Our commonwealth now is defined by our civil inheritance, but that points beyond itself, to the whole manner in which we are to conceive of our commonwealth’s purpose and future. This is how he famously puts it in Reflections:“As the ends of such a partnership [that is, a political commonwealth] cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”

We inherit our rights from our forefathers and pass them to our posterity—and the ghosts of the dead and the dreams of those yet to be born live amongst us even now. Our rights come not from some cold abstraction, or idealistic Romantic gushing, but from the reality of our possession of inherited, enumerated rights, and an inter-generational, century-crossing dialogue with what Chesterton called “the great democracy of the dead”—and, we might add, the not-yet-born.

The Practical Benefit

If we are to be truly Burkean, this cannot remain an abstract speculation. Nor can any conclusion be cheaply applied in an identical way to all situations; that lacks particularity. But what might Burke say to—say—the Anglophone nations of today? He might begin by pointing to a paragraph from his peroration in the Speech on Conciliation, speaking of what the British might offer the American colonies: “Slavery they can have anywhere. It is a weed that grows in every soil . . . But, until you have become lost to all feeling of your true interest and your natural dignity, freedom they can have from none but you.”

Have we become lost to all feeling of our true interest and our natural dignity? When we hear more claims of newly-discovered, utterly invented “natural rights,” which at every stroke dissolve our true inherited rights—of conscience, of speech, of association—do we meekly acquiesce, or stand to with the same vigour as the Petitioners and Declarers, as the Founding Fathers and Burke? If a madman came to your house and doused with petrol the dollhouse your grandfather built, slashed at the worn armchair from your godmother’s house, and sought to rip your father’s watch from your wrist, would you grant him all that as right because he loudly claimed it? Or would you look at those very objects and remember who you are and from where you have come, and then act to defend your patrimony?

If we accept Burke’s idea of rights, then Englishmen and Americans ought to assess what their inheritance is, and then reject all attacks upon it. They ought to act to secure that inheritance for every person of whatever origin now citizens of those commonwealths, and for all their posterity.

There is also great encouragement in knowing that those of us who find the Enlightenment concept of magically discoverable rights unappealing have a deeper magic of our own. We do not stand alone or badly outnumbered on the foredeck of our commonwealth, though it might seem so. Holles and Halifax and Adams and Burke stand behind us, armed for the fight, their words both trumpets calling us to the fray and swords in our hands. Our great-great-grandchildren wait in the fields beyond, confident in us—as all children are in their parents—to deliver to them this precious cargo, their inheritance. As the prophet Elijah put it in a different context, there are more with us than there are with them.

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The featured image is “Edmund Burke from an authentic portrait” and appeared in “Cassell’s Illustrated History of England, Volume 5” (1865). It is in the public domain, courtesy of Wikimedia Commons.

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