Hume's observation on natural law does not show that there is or must be an unbridgeable gap between what is and what ought to be.
Today is Independence Day, which brings to mind this great passage from the Declaration of Independence:
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. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
In a very general way, I very much agree with the sentiments in that paragraph, but my views about natural rights are much more varying depending on the aspect of these rights one considers.
1. Psychological Attitude. Psychologically, I strongly support the notion that people possess these rights and those rights are of overriding importance. These words are stirring to me.
2. The Priority of Natural Rights. The natural rights view holds that these rights precede the government. People do not get their natural rights from government; rather, government is supposed to be evaluated based on how well it protects such rights. I agree with this sentiment (except that it is not merely natural rights, but other matters that count as well).
3. The Ontology of Natural Rights. Natural rights are somehow thought to exist in nature – to be real entities that can be discovered by looking at the world. I don’t believe this. I am not quite sure how to explain morality. My best guess is that we have a moral sense produced by evolution and informed by the culture in which we live. We experience the output of that moral sense as objective or as demanding our obedience. Thus, we experience it as objective, but that does not mean it actually is.
4. Determining What the Natural Rights Are. Here is probably where I disagree the most with the natural rights approach. In my view, the content of natural rights – as well as our moral obligations generally – is best accounted for by an indirect consequentialist approach. Under this approach, the question is what will produce the best consequences. It turns out that following a set of moral rules, principles, and practices will produce the best consequences. Individuals should not be calculating utilities, but instead following these rules, principles and practices. These moral rules and principles include more or less the individual freedoms of a Lockean approach.
5. Distinguishing Between Essential and Contingent Rights. The natural rights approach distinguishes between essential rights, which always had to be respected, and contingent rights, which depended on the circumstances. Significant aspects of a country’s law were not a matter of natural rights, but could be selected by a prudent lawgiver. I agree with the underlying spirit of this distinction. Certain matters are of overriding importance and generally should be followed in all societies and other matters are more equivocal and should be decided based on circumstances. An indirect consequentalist approach provides an explanation for this conclusion.
Overall, I have much sympathy for the natural rights approach, although I suppose many readers of this post might put me in the anti-natural rights camp.