“From where do we get rights and on what groundwork are they formed?”
That’s a question for me from Laurie. Here’s my answer:
Really, it’s pretty simple, in my opinion. Rights are human creation for human benefit, just like any other technology. Yes, you heard right, rights are a form of technology. See, out in the real world, which I’ll call “nature,” there are no rights. A zebra does not have the “right” to not be eaten by a lion. A lion has teeth and a zebra has legs. If the zebra can outrun the lion and its teeth, the zebra gets to live a little longer. Otherwise, well, we’re in that territory where life was once (and many times after) called “nasty, brutish, and short.”
The same rules apply to people, too. And, interestingly enough, we basically adhere to them when dealing with other animals. When a surfer gets his arm bitten off by a shark, nobody expects the shark to be put on trial for abridging the rights of the surfer. Instead, the event is listed as unfortunate and we all pause to remember that sharks are in the ocean and they like to eat flesh (with which we humans are richly endowed), hence, we ought to be careful in the ocean. If the shark has been particularly naughty, we just might go out and kill it, too, but that’s not what usually happens. The main point here is that nobody talks about shark attacks in terms of “rights.”
However, when dealing with other humans, suddenly our language changes. If someone wielding a chainsaw were to remove one of my arms, the fundamental legal issue would take on the language of “rights.” Suddenly I have a “right” to move through life unmolested, with both arms intact, and our hypothetical chainsaw-wielding maniac has abridged that “right.” This makes him a “criminal.” Furthermore, even though he is a criminal, we still say he has a “right” to a trial, and, for a crime of such relative non-severity, he would retain his “right” to remain alive (i.e., we will not kill him).
So, although an arm has been severed in both scenarios, we respond to them differently.
Where did those “rights” come from? Are they from “nature”? Nope. If they were, sharks would not have the “right” to eat our arms, and we would punish them as we punish each other. So what makes us different from sharks?
To put a shark on trial for eating an arm would be ridiculous. The shark would have no idea what’s going on. What good would it do? Could we deter other sharks by making an example of this one? Hardly! The same idea is at work in our practice of judging some people “incompetent” to stand trial. If an insane person were to cut off my arm, we would treat that person the same way we would treat the shark. We would call the incident unfortunate, and then do our best to make sure it doesn’t happen again. If the rights of myself and my arm came into play, we wouldn’t have a very good way to apply them, because there would be no one responsible for them. That is, there would be no one who made a rational decision that could be examined, judged, and penalized. Crying out for my “right” to have an arm would be useless and meaningless––just like the shark case.
Perhaps in a different society, I would go and get revenge on the person who took my arm, regardless of his or her mental competence It wouldn’t matter whether that person understood, because revenge isn’t about that other person–it’s about me, and that means I have turned the other person into an object. This would not be a system of “rights” then, but of retribution. A system of “rights” doesn’t allow me to turn another person into an object just because I have been harmed or offended. It requires me to recognize that the other person really is a human being. Retributive “justice” still exists in some parts of the world. It works like this: If somebody kills my brother, then I go kill him, and then his brother comes and kills me, and so on, until some kind of accord is reached, or until we all get tired of killing each other. This has nothing to do with “rights,” and is another one of those cases where we might say that life is “nasty, brutish, and short.” When something bad happens to people, they want to get something back for it, some kind of compensation. This is not a right, but a desire. Everybody has this desire. What happens when those desires conflict?
That’s why we invented “rights” and their attendant laws. Then we built an arbitration and enforcement system to administrate those rights and the conflicts between us. That’s the government and the judicial system, whose job it is to mediate our collective interests in the form of “rights.” Here’s how it works: If we say that I have a right to both arms (or to, say, “life, liberty, and the pursuit of happiness”), then the converse is that a person who takes one of my arms against my wishes has abridged that right. Now, my natural desire to get revenge will always come into play, but rather than fighting it out between us, and initiating an endless cycle of retributive violence, we go to that arbitration and enforcement system and have the case decided. If it can be proven that the suspect did indeed take my arm, then the suspect is guilty of abridging my “right” to an arm, so we compensate by abridging his or her rights in a way that is fair (we hope).
Eventually, we decided that we ought to come up with a collection of “rights” for ourselves, so that we could have some goal by which to guide our government. One interesting factoid about the creation of the United States is that in our Declaration of Independence, we did not create any new rights, but instead alluded to rights bestowed by British law, and accused the Crown of abridging those rights. Furthermore, we decided it was high time that we be given the ability to administer our own arbitration and enforcement system, since the British government was clearly no longer operating in our particular interests.
Sure, we all know what the Declaration says, that we have rights because we were all “created equal” by some unnamed “Creator,” but we implicitly understand our rights to be ours because we are humans. If rights were bestowed by a Creator, then it would stand to reason that those rights would extend to all creation. But “all creation” does not behave as if it enjoyed “rights.” Nature, to borrow another famous phrase, is “red in tooth and claw.” There are no rights in nature––only powers. And human beings have a lot of power. We have come up with endless ways to harm, torture, and kill each other. And since most of us want to escape that redness of tooth and claw, and most of us want lives that are not nasty, brutish, and short, we devised these things called “rights” that help us smooth our interactions, and give us guideposts for our arbitration and enforcement systems.
To sum up, rights come from us. We give rights to ourselves, and then, as a society, pledge to protect those rights for each other via the government, the judicial system, and our “good” behavior. This is why we can create and destroy “rights” so easily. Once upon a time, women had no “right” to vote. Now they enjoy that right. Once upon a time, people had the “right” to enslave others. Now that right is gone. For the most part, “rights” have only expanded in the last couple hundred years. These days we are even bestowing “rights” on animals.
So, to answer the question (“From where do we get rights?”), we get them from ourselves. We create them to enable ourselves to achieve more and to have better lives. They are a form of technology. They do not come down from on high. They are not bestowed arbitrarily by some deity. Rights are the social codification of protection for all our individual desires to have “life, liberty, and the pursuit of happiness.” (I.e., we all just want to do what we want to do.)
At any rate, although I use the language of rights in the United States, the principles hold true for all people who enjoy rights.