Where do Rights Come From?

by Benjamin Studebaker

Recently, we’ve been hearing more about rights–the right to bear arms, the right to life, a whole variety of rights. But where do rights come from? Too often, we take the concept of rights as given without giving it any serious critical thought. The New York Post, to its credit, has issued a challenge to the legitimacy in today’s world of the right to bear arms. Today I’d like to join the post in thinking a little more deeply about rights and the role they play in modern states.

There are two primary groupings of possible origins for rights:

  1. Natural–infallible naturally occurring moral truths, possibly god given.
  2. Synthetic–made by fallible human beings and consequently themselves fallible.

Most people consider rights naturally occurring facts, but I would put it to you that the argument that rights are synthetic is significantly stronger.

Take for instance the notion that rights are god-given. Commonly, it is said by the religious right that the right to life comes from god, and consequently to kill say, the human foetus is to act against the will of god. This is claimed usually on the basis of the commandment “thou shalt not murder”. However, it does not necessarily follow from this that one has a right to life. Rights are universals the rejection of which is never permitted. Despite commanding believers not to murder, the Judeo-Christian god nonetheless prescribes death, often via specific methods, in a variety of circumstances. Consider, for instance, Leviticus 24:14-16:

Take the blasphemer outside the camp. All those who heard him are to lay their hands on his head, and the entire assembly is to stone him. Say to the Israelites: Anyone who curses their God will be held responsible; anyone who blasphemes the name of the Lord is to be put to death. The entire assembly must stone them. Whether foreigner or native-born, when they blaspheme the Name they are to be put to death.

This is one of a great many examples of the Judeo-Christian deity prescribing limits to the commandment not to murder. If religion guaranteed a right to life, this right would necessarily be universal. Under no circumstance would the deity prescribe extinguishing human life. We are also often told that we have a right to practise whatever religion we choose–this verse, which condemns blasphemers to death, would seem to contradict that right. It would seem reasonable then to say that rights do not come from any deity.

A brief digression on the right to life–it is not actually enshrined anywhere in American law. Jefferson mentions it in the Declaration of Independence, but that document is a piece of rhetoric, not of law. The death penalty is still permitted in the United States in most places. A society with a universal right to life is a society that could not logically permit the death penalty.

A person advocating a natural rights point of view could nonetheless claim that our rights are metaphysical truths existent in the world, even though the source of their creation is unclear. But if this were the case, would not the human conceptualisation of what rights we have and what rights we do not have be universal? If we were observing something that exists in the world, our observations would not likely differ very widely. Yet, different countries have different numbers of rights, with some rights exclusive only to some countries but not to others.

Many European countries, for instance, have a right to healthcare, while the United States does not. At the same time, the United States has a right to bear arms that many other countries lack. If rights were natural and universal, an explanation is owed for how the United States could specifically guarantee a right to bear arms while a country like Japan can specifically legislate the inverse. Consider the second amendment:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Compare this with Japan’s gun regulation act from 1958:

No person shall possess a firearm or firearms or a sword or swords.

If rights were natural, how could two countries come to completely inverse positions on whether a given right exists? Unless either the Americans or the Japanese are just exceptionally bad at realising what rights they have or do not have (a racist notion that I will not entertain further), rights cannot exist naturally. They must be socially constructed–they must be synthetic, man-made.

If rights are man-made, they are fallible, and that means we can challenge them or add to them as our moral beliefs dictate to us. When a people create a right or create a prohibition against a right, that people is enshrining a particular normative moral belief about what its society should be like. When say, the American bill of rights was originally written, quite a bit of thought went into which rights should be included, which left out, and how they should be constructed linguistically to convey meaning. That kind of critical analysis of our moral and legal principles is important, and we seem to have lost it in recent years.

In recent years, it has become increasingly common for people to justify their moral beliefs with an appeal to rights. Why is okay for us to have guns? Because we have a right to bear arms. Why is abortion not okay? Because we have a right to life. This is not the purpose of rights–rights are supposed to reflect well-considered moral philosophy, not be a substitute for that thinking. If we consider the process of considering our moral positions to be finished at the time the rights are created, we create a static moral and political system unresponsive to new thinking and new ideas.

The society that created say, the right to bear arms in the 18th century was a society in which “arms” meant single shot muskets. Twenty seconds were required to reload a musket once it was fired. That’s three bullets per minute. The round bullets fired by muskets were notoriously inaccurate. A person could not successfully go into a school and kill 20 people with a musket without being overpowered in between shots. Such a person would likely be more successful with the gun’s bayonet.

We would not permit everyone nuclear weapons, and for obvious reasons–an individual should not have that kind of destructive power. We would permit everyone scissors, even though scissors could be used to kill people. Somewhere between scissors and nuclear weapons, there is a place where the government draws a line between what it restricts and what it does not. A serious moral discussion should be had about where that line should be and how tight the restrictions need to be, and appealing to the existence of the right does not contribute to the debate, it merely reminds us of how people living in a different world decided it, people who also thought it was okay to enslave blacks and did not think we needed a right to say, healthcare or education.

We cannot abdicate our moral reasoning to the past. We have to do it today, and everyday, to build a just society. No past judgement can be sacred and unchallengeable, lest our societies and laws go the way of the dinosaur.