Part II: Where Do Rights Come From?
“To every man is given the key to the gates of heaven; the same key opens the gates of hell.” (Ancient Buddhist proverb)
So I attempted to spend less than 800 words in Part I to do away with the notion that rights come from God and/or nature. With a Starbucks hot chocolate at my side and a great Monday under my belt, here is a thought development to conclude my discussion on the question: where do rights come from?
I think that if we want to discuss a theory of rights, we must begin with a theory of wrongs. A good place to start would be the Crusades, the Inquisition, slavery, the Stalinist starvation and purges, the Holocaust, the Cambodian slaughter, and other abuses that reasonable people now recognize to have been wrongs.
Much like jurisprudence expert Alan Dershowitz, my approach with rights first identifies the most grievous wrongs whose recurrence we seek to prevent, and then asks whether the absence of certain rights contributed to these wrongs. If so, than experience provides a powerful argument for why such rights should become entrenched. This bottom-up approach builds on the reality that there is far more consensus about what constitutes gross injustice than about what constitutes perfect justice.
The answer is simple: Rights are invented by human beings, based on experience, who then write the laws. It’s experience! Not God or nature, but experience. Much of the human rights law pertaining to foreign policy are based on the wrongs addressed in the Nuremburg trials condemning the Third Reich. Much of the equality laws that are enacted today are based upon the lessons we learned from wrongs of the civil rights movement of the 1960s. From laws activated to protect gays or those bullied on Facebook, it took serious tragedies to entrench certain rights for protection.
Neither heaven nor nature will ever drop down a self-evident answer to the question: does an 88 year old person in persistent pain have a right to die? It will take reasoned debate based on what it means to “live,” looking at results from the Netherlands use of euthanasia, strong consideration of the consequences on families and communities who have dealt with this issue, etc. etc. And then again, the definition of a ‘good death’ may very well differ significantly between people in, say, Holland and Mississippi.
A final elucidation:
- Rights do not come from God, because God does not speak to human beings in a single voice, and rights should exist even if there is no God.
- Rights do not come from nature, because nature is value-neutral.
- Rights do not come from logic, because there is little consensus about a priori premises from which rights may be deduced.
- Rights do not come from the law alone, because if they did there be no basis on which to judge a given legal system. Rights come from human experience, particularly experience with injustice. We learn from the mistakes of history that a rights-based system and certain fundamental rights are essential to avoid repetition of the grievous injustices of the past.
- In a word, rights come from wrongs.
~ Wes Fornes