Where Do Rights Come From?
Where do rights come from? Prof. Aeon Skoble claims that there are several types of rights that come from various sources. For instance, voting rights and contract rights come from the legal system. Moral rights are the most controversial, with disagreements about their origin. Fortunately, despite these differences of opinion amongst classical liberals, the various theories of rights are similar in practice.
- The Philosophy of Liberty (Video) An ISIL animated video on the philosophy of liberty and self-ownership.
- Deontological Ethics [Article]: Larry Alexander and Michael Moore provide a concise summary of the philosophy of deontology, as contrasted with consequentialism.
- Rights [Article] A classic piece by Henry Hazlitt on rights and their many conceptions.
- Do Our Rights Come from the Constitution? [Article] Jacob G. Hornberger's look at where our rights come from.
Where do rights come from? Perhaps you’ve heard people use the expression God given rights. Do our rights come from God? Well they can’t all come from God. I have the right to take a certain number of sick days from my job. Those rights came from my employment contract, not from God and my voting rights come from our legal system. Since we use the word rights in a variety of contexts, we sometimes mix up when we’re talking about legal or contractual rights and when we’re referring to moral or natural rights. It’s obvious that contractual rights come from our contracts but what actually is the source of moral rights and does it matter? Philosophers have disagreed about the source of moral rights for a long time. That’s probably not a surprise if you’ve taken a philosophy class.
Philosophers typically try to give an account of rights that explains what they are in terms of some larger ethical framework. For example some philosophers are utilitarian. They think that the morally best thing is that which brings about the greatest good for the greatest number. Some philosophers are deontologists. They think that we can derive a rule based ethic in one of several ways and then the morally best thing is following those rules. These seem like diametrically opposed theories since one seems to care primarily about consequences and the other about process. Other philosophers argue that our rights do come from God or nature. The Declaration of Independence uses the expression endowed by their Creator with rights. But interestingly they may all yield a theory of rights which in practice comes out pretty much the same.
Consider the First Amendment right to peaceably assemble. The Supreme Court has clarified that local authorities can still regulate assemblies provided that the restrictions are content neutral. For example a ban on demonstrations after midnight might be permissible since the objective is not to suppress dissent but to let people get some sleep. In contrast, a ban on demonstrations by a gay rights group or by veterans would be impermissible. But why should there even be a First Amendment right to assemble? Our constitutional rights ought to have some kind of moral basis.
But here’s the good news. The proponent of a right from God or nature can see the value of allowing assembly as a natural manifestation of our natural capabilities and deliberation. The rule follower will se that for example respect for people’s autonomy and dignity requires allowing them to speak out. And the utilitarian might realize that a policy of banning unpopular assemblies will backfire in the long run and that suppression of dissident speech will not promote the greatest overall good.
A defining characteristic of the classical liberal approach to political philosophy is that rights are important and individuals have rights despite philosophical disagreement as to the basis of those rights. I don’t want to say that it doesn’t matter what the underlying justification is. I think it’s extremely important. But when we’re approaching policy in government it’s crucial to remember that people have rights despite philosophical disagreement over why.
It’s partly a matter of what sort of conversation you’re having. It’s like diesel versus gasoline. If you’re shopping for or designing a car it matters what sort of engine you think is best. But to drive to work either car will get you there and the rules of the road are exactly the same.