The question of how to determine which rights are natural seems difficult to answer conclusively. My attempt to establishing some guiding principles here are not informed by a proper education in law or moral philosophy, so I expect and invite critique. I will begin with what I think is intuitively obvious: a right is natural if it is derived from what is ‘natural’ in man or an innate characteristic of human nature.
An innate characteristic of human nature would be, by definition, universal: applying to humans across time and space. It would not be contingent, therefore, on when or where one lives and thus not vary with factors that change with space and time. An example would be the possession of a moral conscience. Humans by nature are moral agents, having a moral sense by which we judge ourselves and others’ actions. While some moral standards may vary among cultures present and past, the presence and execution of moral standards does not: to be human is to possess a sense of oughtness. Hence, a right to freedom of conscience, being derived from this innate quality, is a natural right.
Conversely, a socially-constructed right would be derived from some quality that is ‘unnatural’ – a characteristic that is not innate but contingent on circumstances (and can therefore be ‘alienated,’ i.e. separated from us). Abilities (what we are capable of doing) are such a characteristic. Abilities vary from culture to culture, across space and time, because of technology. For instance, we now have the ability to control birth artificially – an ability that has increased dramatically in the last 100 years. This ability has given rise to the idea that we have a right to contraception, and not just the freedom to practice it but the expectation that the state enable it by forcing the public to pay for it. This cannot be a natural right, though, for the simple reason that cannot be had by nature of being human: it can only be had by humans who live at a time and place where they have a certain ability.
The conflict between these two rights was the issue in the Hobby Lobby Supreme Court case. The Court had to decide whether to uphold freedom of conscience against claims to a right to contraception. I’ll look at this case more in depth in my next post.