Metaphysics and Modernity: Natural Law and Natural Rights in Gershom Carmichael and Francis Hutcheson

Abstract

This paper argues that the founding fathers of the tradition of Scottish Enlightenment natural jurisprudence, Gersholm Carmichael (1672-1729) and Francis Hutcheson (1694-1746), articulated a view of rights that is pertinent to the contemporary dominance of the language of rights. Maintaining a metaphysical foundation for rights while drawing upon the early-modern Protestant natural law tradition, their conception of rights is more significantly indebted to the premodern scholastic natural law tradition than often realized. This is illustrated by exploring some of the background to their respective theories of rights, detailing the precise reasoning that Carmichael and Hutcheson brought to bear upon their conception of rights, and then exploring their application of their understanding of rights to the question of property.

A call to embrace jural dualism

“…We have traced the use of ‘superior’ 6 . Hugo Grotius, Samuel von Pufendorf, John Locke, Gershom Carmichael, Francis Hutcheson, David Hume, and Adam Smith all talked of the jural ‘superior’ (Gregg, 2009, pp. 88–90, 101) 7…”