My Own Pie

Libertarian Thoughts from Renaissance Guy

Where Do Our Rights Come From?

with 4 comments

     Here’s a multiple-choice question for you.  Where do our rights come from?

     a.  ourselves

     b.  the Constitution

     c.  courts

     d.  laws

     e.  God

     Thomas Jefferson and the signers of the Declaration of Indpendence believed that our rights come from God:

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.

     There is so much in that statement that it blows my mind.  You can love it or hate it, but what you cannot do is deny that our Founders believed in natural law and in inherent rights and, in some way or other, in God, the Creator.

     There are problems with all the other choices above.

     If my rights come by my own self-declaration, then I could claim the right to kill you.  Of course, you would claim the right not to be killed.  Where would that leave us?

     If our rights come from the Constitution, then we could amend the Constitution to do away with the right, for example,  of free speech.  The Constitution once recognized the right to own slaves; now it forbids slavery.  The same document that called both ownership of slaves and freedom from slavery a right, cannot be a stable and consistent source of rights.  It can only list rights that are recognized by people.

     The courts present the same problem.  It has happened in America that one judge or one court ruled in a particular manner, but then another court ruled in the opposite manner.  The courts are supposed to interpret laws and decide cases based on the Consitution, and it, as noted above, reflects the rights that people discover and recognize. 

     Laws can either reflect our rights or not.  Good legislators make sure that they do.  Ignorant or evil legislators might not do so.  Jim Crow laws certainly did not reflect people’s proper rights.  Neither did laws against women’s suffrage.

     God, or whatever you believe underlies our innate sense of being entitled to things as human beings, is the source of those rights.  Maybe you want to conceive of the source as the Tao or as Nature or Evolution or the Collective Unconscious or Je Ne Sais Quoi.  However, there must be an ultimate source.

     You can say that societies create rights for the people in them.  If that were true, you would arrive at a strange conclusion.  You would have to say that Jews had no right to life in Nazi Germany, but now they do have the right to life in post-Holocaust Germany.   I submit that Jewish people (and any other ethnic or religious group of people) always had and always will have the right to life.  The Nazis violated their rights, but they could never take away their rights.  If they could, then on what basis could we condemn the Nazis.

     You would also have to say that you wish that homosexuals would have the right someday to marry people of the same sex and that you hope that someday enough people will agree to make it a right in the entire United States.  That’s not what I usually hear, though.  I hear people saying that people have the right to marry whomever they choose, and that that right should be formally recognized by law.  And as long as there is no such legal recognition you would have to admit that people have no such right.

     You would make a mockery of Roe v Wade if you looked at rights that way.  You would have to say that nine men arbitrarily decided that women could go ahead and have abortions if they want to.  The way it really happened was that those men ruled that women have such a right, and the law cannot infringe upon it.  In other words, the supposed right to an aboriton was the basis for the ruling and not the other way around.  The ruling is not the basis for the right.


Written by ambrosianideas

August 14, 2010 at 6:37 am

Posted in Freedom, Rights

4 Responses

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  1. Practically, rights as they are experienced in the world need to be actualized by ourselves. Since there has been slavery and denial of rights throughout human history, they aren’t coming from some transcendent source. If we don’t define them, claim them, and fight for them, we don’t get them. History makes that very clear.

    Scott Erb

    August 15, 2010 at 3:38 am

  2. But, Scott, if black people in America claimed the right to be free, and they had no such right to start with, then all they were doing was asserting power to get what they happened to want. And they would have no more basis for claiming and fighting for their right to freedom than Southern planters had for claiming and fighting for their right to own slaves.

    The conclusion that you must reach is that whoever is most powerful, or whoever happens to win, gets to decide what people’s rights are. That’s a conclusion that I cannot live with. How about you?

    Historically speaking we would be left in the awkward position of not being able to tell whether the slave-owners or the abolitionists were in the right.

    That’s not how the struggle was couched at the time. Abolitionists said that all people have the right to be free of bondage, and they propounded it as an absolute, inherent right based on simply being human. They did not say that if black people could win the struggle, that they would then have the right to be free.


    August 15, 2010 at 6:32 am

  3. Actually, the conclusion in paragraph two is undeniably the way the world is, whether we like it or not. The goal of the enlightenment was to gain power for those who had a view that all humans should have equal rights. I agree with that belief and will fight for it, but the rights themselves did not exist until they were established.

    Abolitionists and slaves were trying to fight to create a right which they believed blacks were entitled to. The right did not exist until humans created it, what existed was a belief in an “ought” statement which people held for various reasons (enlightenment philosophy, religion, empathy with others, etc.).

    You cannot prove scientifically that slave owners or abolitionists were in the right — and people might look at gay marriage the same way 100 years from now, seeing opponents as being clearly in the wrong. But you can have opinions and act politically on them. Then if your opinions become widely held, people see them as “right.”

    I have a strong belief that things should be rights based on my own personal convictions, my own empathy and experience. And I will fight hard to try to turn those things into political rights. But I won’t try to posit one universal “source” of these rights, or expect others to agree on that — that’s outside our ability to know. We make our calls and act on them. Whatever the source of our sense of right and wrong, if we don’t act to try to create what we hold right, there’s no guarantee it’ll exist on its own.

    Scott Erb

    August 15, 2010 at 2:25 pm

  4. Hmmm, I was re-reading this and we’re disagreeing in terms of definitions. I’m saying rights exist only when they are effective (ergo, Jews had no right to life in Nazi Germany). You’re taking what I put forth as “ought statements” and defining that as right — what you hold as should the case (people should have a right to life = people have the right to life). But can one not posit rights as coming from ourselves even if they assert them boldly? Also, logically, your argument seems to rely on a appeal to emotion — it doesn’t feel good if we can’t say for certain the Nazis were wrong, therefore rights have to come from where — or argumentum ad populum — most people agree the Jews should live, therefore there must be a transcendent right.

    I’d rather go with: ethical and moral principles first (creating ought statements), followed by political constructions designed to realize those principles, such as legal rights and processes. That takes your question simply back a step — where do these ethical and moral principles come from. There I would say “God,” but in a far broader sense — from a spiritual essence that defines humanity to which we have unclear access and lack of definitive proof, but which I believe motivates us. So in a round about way, we agree very generally, though disagree when it comes to specifics.

    Scott Erb

    August 17, 2010 at 1:37 am

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