Fact: Rights are social constructs.
Summary
Liberals believe that rights are social constructs, defended by force and open to change and improvement. Rights cannot be natural, like laws of nature, because nature enforces its laws absolutely, whereas rights are frequently broken. Rights cannot be inalienable, because governments frequently revoke rights. They cannot be God-given, because God originally blessed the rights of monarchy, genocide, polygamy, parental killing of disrespectful children, and other rights no one seriously defends today. Rights cannot be self-evident, because philosophers have been vigorously arguing over them for thousands of years.
Argument
Where do rights come from?
This question is central to all political philosophy. How you answer it will affect nearly all your political beliefs.
Until a few hundred years ago, most political philosophers believed that rights were natural, inalienable, God-given and self-evident. Today, most philosophers agree that rights are social constructs, open to change. Conservatives and libertarians tend to favor the idea of natural rights; liberals the idea of social constructs.
Let's first define rights, as asserted by many conservatives and libertarians:
Natural rights: These are rights that are supposedly universal in scope and binding on human behavior, much like the physical laws of nature. One of the most famous expositions of this belief came from the 17th century philosopher John Locke. According to Locke, natural rights were those rights enjoyed by prehistoric humans in their original "state of nature," before humans began forming complex societies. This was an idyllic world of freedom, equality and consideration of other people's rights. He wrote that the "state of nature" is governed by a "law of nature," which humans can discover through reason. Through his own reasoning, Locke concluded that humans were "by nature free, equal and independent." Furthermore, natural law obligated that "no one ought to harm another in his life, health, liberty or possessions."
Inalienable rights: These are rights that cannot be taken away. In other words, individuals intrinsically possess rights, and no one else can alienate or revoke them. Attorney General Ramsey Clark once defined inalienable rights this way: "A right is not what someone gives you; it's what no one can take from you."
God-given rights: These are rights that originate from God. For example, in the Bible, God spells out what rights Israel may enjoy, from birthrights to a right to life to a right to a fair trial before judges.
Self-evident rights: These are rights that are supposedly so obvious that their nature and origin do not need to be defended by analysis. In the Declaration of Independence, Thomas Jefferson declared that "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 them are life, liberty and the pursuit of happiness." Even if true, these claims are extremely difficult to prove with logic and evidence, so Jefferson sidestepped this swamp by simply claiming these rights were self-evident.
To evaluate these claims about rights, it's first necessary to distinguish between what a right IS in the real world and what it OUGHT to be in a perfect world. Philosophers call these IS and OUGHT arguments, and they help clarify much confusion in this debate.
IS and OUGHT arguments
There is a huge difference between what a right actually IS and what it OUGHT to be. For instance, we know that white Americans once had the "right" to own slaves, even though they morally shouldn't have.
Sharp readers will notice that the conservative claims outlined above fail to describe what a right actually IS… that is, they do not describe rights in the real world.
Natural rights cannot be like the laws of nature, because nature enforces its laws absolutely. You cannot violate the law of gravity or the speed of light. However, tyrants and criminals have violated the rights of others for thousands of years — indeed, anyone with a weapon can do it. Therefore, the comparison of rights to laws of nature is faulty.
Likewise, inalienable rights don't meet the test of reality either. Governments have frequently revoked the rights of citizens, as in the case of Nazi Germany repealing the rights of Jews, or Turks the rights of Armenians. If rights are inalienable, they cannot be in any literal sense.
God-given rights also fail the test of the real world. Unfortunately, rights are not only highly contradictory among the world's religions, but within the same religions over time. This makes it impossible to use religion as a source of rights. In Judeo-Christian cultures, for example, our modern, post-Enlightenment concept of rights is seldom found in the Bible. The story of Abraham leading Israel out of slavery from Egypt has long been celebrated as a triumph of the right to freedom. But the Israelites did not celebrate their freedom by creating a Jeffersonian constitutional republic based on individual rights. Instead, they first created a theocracy, then a monarchy, both of which are dictatorships. And these dictatorships enacted laws that many would decry today as human rights abuses. For example, the Torah permitted parents to kill their children if they disrespected them. Slavery was allowed, if regulated to prevent the more egregious abuses. Even so, it was legal for a master to beat slaves so severely that they could not get up for two days. Male prisoners of war and non-virgin females were often killed, and virgin females taken into sexual slavery. The New Testament offered no improved philosophy of individual rights; indeed, the apostle Paul commanded, "Slaves, obey your masters." The changing nature of religious-based rights precludes them from being used as a guide for rights today.
Nor are rights self-evident. People have been arguing over the definition of rights since the days of the Greeks philosophers, with no end of the debate in sight. For example, Aristotle believed that humans fell into a natural hierarchy, and those at the bottom could never hope to climb higher due to their lack of talents. This was the logical justification for slavery — as self-evident to Aristotle (and the Catholic Church, which adopted his philosophies after the 13th century) as the evils of slavery are obvious to us today. Such examples show that obviousness cannot be a test for rights.
So rights are not any of these things in a literal sense. Consequently, defenders of natural rights often portray them in a mystical, metaphysical way. That is, rights have ineffable existences, like souls or angels. However, more scientifically minded people are not obligated to accept these appeals to the supernatural. There are more literal and down-to-earth explanations of rights that satisfy science.
In fact, these quasi-religious explanations of rights are intellectually dishonest. The origin of rights is a messy and complex debate. What many conservatives and libertarians claim are inviolable rights are really their own narrow and potentially flawed opinions. But instead of proving their opinions logically, they attempt to avoid the unpleasantness of debate by using rhetorical tricks to elevate their opinions to infallible dogma, like claiming that their opinions come from God, are self-evident, or are unbreakable laws of nature.
So if rights (in a literal sense) are not what conservatives claim, then what are rights? Liberals argue they are social constructs, defended by force, and open to change and improvement. In ancient times, rights were extremely limited privileges that kings handed down to their subjects, just enough to keep them in line and functioning. In modern times they are social agreements among voters, defended by police and military forces.
A prime example is the U.S. Constitutional Convention of 1787, where the Founders gathered in Philadelphia to debate — often vehemently — about what rights and responsibilities should be included in the constitution. After three years of heavy argument, negotiation, compromise and salesmanship, the 13 states voted on the constitution, and the rights and responsibilities within it became law. Included in this agreement was the authorization of force to defend these rights, from militias to state law enforcement, with all the necessary courts and legislatures to ensure the lawful application of such force.
Of course, both kings and democracies are human, which explains why rights in the past have been so imperfect and violable. Still, rights have been evolving and improving over the centuries, thanks to advances in philosophy and science. The elimination of slavery and the creation of universal voting rights are prime examples.
And this gets us to the OUGHT arguments. We know what rights actually ARE, but what OUGHT they be?
OUGHT Arguments
Everyone has a preconception of rights that are moral, fair and just. But where does this preconception come from? By what standard do we measure the excellence of rights?
It is here that conservatives try to resurrect their old arguments: that rights are natural, inalienable, God-given and self-evident. Unfortunately, these don't work as OUGHT arguments either. Let's review each one:
Self-evident rights: Philosophers have argued about what rights we ought to have for thousands of years. What rights should be is hardly obvious.
God-given rights: If God has told us what our rights ought to be, then we would have to accept the justness of monarchy, slavery, genocide, polygamy, killing disrespectful children, and more. To acknowledge that we have a different concept of ideal rights today is to completely surrender the claim that our ideal rights come from God.
Inalienable rights: At first, it seems logical to believe that once we recognize an ideal right, it OUGHT to be permanent to the individual, and no one else should take it away. Unfortunately, this does not follow. Rights are ultimately intended to promote survival. However, our survival needs are constantly changing. One example is the right to procreate without limit. Throughout most of human history, individuals should have had the right to procreate as much as they wanted. Indeed, most cultures actively promoted child-rearing, as a means to survival. However, today's population explosion threatens to devastate the planet with pollution and resource depletion. It threatens the quality of life, if not the very survival, of the human race. Our right to unlimited procreation increasingly runs counter to our right to life and reasonable happiness. When changing survival conditions bring rights into conflict, one of them will have to be repealed — inevitably.
Natural rights: Some claim that we can know ideal rights by looking into human nature. For example, each person desires life, freedom and happiness. From these natural desires, they argue, we can extrapolate an ideal set of rights. Unfortunately, this approach is flawed. Killing, lying, cheating, and stealing are also intrinsic to human nature. Should humans have the right to commit these acts as well? Of course not. In fact, is seems a little scary to base our ideal set of rights on sinful human nature. Society actually designs rights and laws to prevent humans from following their pathological and sadistic natures.
However, some defenders of natural rights — including some liberals — have a more sophisticated view of natural rights. As noted above, they argue that rights are intended to promote survival. That is, rights are an attempt to form a high-functioning, smooth running society. According to this idea of natural law, our rights ought to be based on the laws of science, like game theory and economics. For example, a slave-owner gave a slave the right to eat for economic reasons, because the unnecessary death of his slave would have disrupted his business. However, in later centuries, we learned that giving all individuals a greater degree of freedom resulted in an even more prosperous economy, so we freed the slaves. The progress of science and economics is constantly improving our idea of rights.
The argument continues that if we could somehow learn the true laws of science and economics, we could fashion a perfect set of rights that would maximize our well-being. One could call these scientific laws "the laws of nature," or "natural law." A good analogy is math. Humans have only a limited and imperfect understanding of math laws by which the universe operates. But if humans could ever learn these math laws, they could dramatically improve their lives.
The problem with this more scientific view of natural rights is that it explains both everything and nothing at the same time. To say "the laws of nature should dictate our rights" is like saying "the laws of physics produce all the different species in the animal kingdom." By itself, this observation is not meaningful. It doesn't explain why some animals become rabbits and others become tortoises. Like species, rights vary considerably over time and region. A more practical explanation is that societies adopt their unique rights in order to meet their peculiar survival demands. Rights have improved with science, to be sure, just as human breeding of animals has improved with science. But that does not explain 100 percent of the diversity among species, any more than it explains 100 percent of the historical diversity among rights. Different environments have different survival needs, and this results in diversity, for both species and rights.
Such unpredictable diversity makes it impossible to use the laws of science to declare a rigid, dogmatic set of highly specific rights. Rights should change to meet changing survival needs. If natural rightists claim to know a rigid and specific set of rights based on their perfect understanding of science, well, the foolishness of such a claim should be obvious.
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