Rhetorical versus Practical Rights
In the Declaration of Independence, Thomas Jefferson speaks both rhetorically and practically about rights:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
When Jefferson speaks of men being “endowed by their Creator” with certain rights, he is speaking rhetorically. The purpose of rhetoric is to win people over to your viewpoint, often by appealing to their emotions. But, at the time of the American Revolution, the opposite side could equally argue the “divine right of kings”. The problem with this rhetorical position is that it would require the Creator to come down and settle the matter. He didn’t, and war ensued.
The same may be said when people speak of “natural rights” or “inherent rights”. There are no objective criteria to determine the “naturalness” or the “inherentness” of a given right. Such claims are rhetorical assertions.
In the second part of the Jefferson’s statement, he addresses rights from a practical view: “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.
All practical rights arise by agreement. We agree to respect and protect certain rights for each other. For example, we agree to a right to property. We respect this right by not stealing from each other. We protect this right by passing laws against theft, establishing a system of justice to enforce these laws, and, most important, by calling the police if we see someone breaking into our neighbors house while he’s away.
Rather than just a rhetorical claim to a right, we now have both the means of reaching further agreements by legislation, and a practical mechanism to deal with those who would infringe. Rules and rights are two sides of the same coin.
The Problem of Reaching Agreement
We can measure, in a general sense, the moral value of a right. Consider the recently added right of two people of the same sex to marry. We can ask ourselves, “What are the consequences if we agree to respect and protect this right for everyone? What benefits and harms will follow? Will we all be better off adopting this right and creating a rule to protect it? Assessing consequences in terms of the benefits and harms for everyone, is called moral judgment.
Because none of us has a “God’s eye view” of the ultimate outcome of our choices, it is possible for two good and honest persons to disagree about what a right or rule should be. The best we can do to resolve differences is to gather the best information, consider different options, make our best estimates of the benefits and harms of each option, and then vote democratically. This establishes the working rule we put into effect.
After some experience with the rule, we will have better information and may alter or remove the rule. Sometimes rights and rules change because our moral judgment evolves. There once was a legal right to own slaves, protected by laws requiring the return of runaways. Now the right of every person to be free is protected by laws against slavery.
Law and Conscience
The moral judgment of society may also differ from the moral judgment of our conscience. We answer to both. Conscience often leads us to advocate a new law or work to repeal a bad one. In some cases, the judgment of conscience will find a law so egregious that the person must choose not to comply. Before slavery was abolished, many people broke the law by helping fugitive slaves escape. And conscience compelled many Germans to hide Jewish citizens in their homes in Nazi Germany.
Sometimes law accommodates conscience. People with a religious belief, that they must never kill anyone, not even in war, were classified “conscientious objector” in past wars, and given other duties that did not require carrying a gun.
So that is where rights come from. They come from us using moral judgment to decide what rights will benefit us all and which rules will best protect them. As our moral sense evolves, rights and rules may change, but hopefully always toward a more perfect good for everyone.