When people speak of “natural rights”, “inherent rights”, or “God given rights” they are speaking rhetorically. There are no objective criteria to determine the “inherentness”, the “naturalness”, or the “Godliness” of a right.
But we can measure, in a general sense, the moral value of a right. 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? Assessing consequences in terms of the benefits and harms for everyone is called moral judgment.
All practical rights arise by agreement. We agree to respect and protect certain rights for each other. For example, we protect our neighbor’s property rights by calling the police if someone is stealing his car. And we expect him to do the same for us. Rules and rights are two sides of the same coin. To protect a right, an enforceable rule is created prohibiting behavior that violates that right.
The rights that are the most important to society are protected through law. Jefferson said, “to secure these rights, governments are instituted.” A democratically elected legislature defines behavior that infringes a right (theft infringes the right of property). They pass a law forbidding these acts and the law is enforced by citizens, police, judges, courts, and correctional facilities.
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 we 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.
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 not kill anyone, not even in war, were classified “conscientious objector” and given other duties that did not require carrying a gun.
Not all rules rise to the level of law. Customs, manners, personal or professional ethics, club by-laws, church edicts, et cetera are also rule systems. These rules imply specific rights respected within the organization.
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.