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


Part I: Where Do Rights Come From?

Deep question of the day: Where do rights come from? At Starbucks (grande blonde roast)  in San Jose just before work, and finished up a 2-day short thought on rights.

“A right is something that is due to a person by just claim, legal guarantee, or moral principle … A power, privilege, or immunity secured to a person by law … A legally enforceable claim that another will do or will not do a given act; a recognized and protected interest, the violation of which is a wrong.”

Do rights come from God, nature or neither?

It is hard to believe that we live in a country that once approved of slavery and refused to allow women to vote. Despite rights given to minorities and woman in the 20th century, we continue to have pressing issues surrounding human rights. How is a society in 2015 able to decipher what is “right” and “wrong” when it comes to immigration, prison overcrowding, rights of LGBT, and the seemingly never-ending debate on the right-to-life? Consider this: does an 88 year old diagnosed with stage four cancer living in persistent pain be allowed to take medication that will hasten a peaceful death? In the majority of states in the U.S., this patient will be forced to continue to “live” despite their wishes. But is this really “living”? And why is the right to die peacefully not a viable “right” for this patient? Will divine law make this issue clearer?


The history of divine law is a history of repeated corrections of yesterday’s lethal misreadings and misapplications. To be an advocate of divine law is constantly to have to say you’re sorry for the mistakes of your predecessors, as your successors will inevitably have to apologize for the mistakes you are now making when you claim to know God’s true intentions. Divine law has a brutal history of justifying racism, the inquisitions, misogyny, and a multitude of bloody wars. Contemporary apologists for divine law argue that some past claims – especially those of which they disapprove – were misreadings or misapplications of God’s true will. But how can we be sure that today’s “correct” reading will not be subject to tomorrow’s correction?

A great Hasidic rabbi was asked if it is ever proper to acts if there is no God. He replied, “Yes. When a poor man asks you for charity, act as if there is no God – act as if only you can save him from starving.” I would extend the rabbi’s answer to all moral decisions about repairing the world.

In 1873, the Supreme Court, in denying a woman the right to be admitted to the bar, relied on a divine concept of natural law: “God designed the sexes to occupy different spheres of action,” and “It belonged to men to apply and execute the law.” Woman’s divinely assigned role was in the “domestic sphere.” Beyond “the divine ordinance” and “the law of the Creator,” it is “in the nature of things” that women must stay at home. What “things” the High Court never tells us.

Do rights then come from nature? It is interesting how religious fundamentalists credit God with beautiful or positive results of nature, but only rarely blame him for the ugly and the negative. How frequently we have heard survivors of natural disaster credit God for saving them, and how infrequently have we heard them blame God for killing those who did not survive these very same “acts of God.”

“Anyone observing nature with an objective eye will see that it is morally neutral. It is full of beauty and wonder, but it thrives on violence and predation. Nature is a mother animal nursing her helpless cub and then killing another helpless animal to survive. Nature is life-giving sunshine followed by death-dealing floods. Human nature is Mother Theresa and Adolf Hitler; Jesus and Torquemada; Kant and Nietzsche; Confucius and Pol Pot; Mandela and bin Laden; the early Martin Luther (King), who reached out to the despised, and the later Martin Luther, who advocated rounding up the Jews and making them “miserable captives” in forced-labor camps.” – Alan Dershowitz

Perhaps rights come from neither God nor nature. If not, then where?

~Wes Fornes