INDIVIDUAL RIGHTS HAVE BEEN THE GREAT HISTORICAL counterweight to governmental authority, control, and tyranny. Though human experience has taught us that rights are indispensable to democracy, such rights are-at least in theory-quintessentially undemocratic, since they constrain the state from enforcing certain majoritarian preferences. If the claim of the aggrieved individual is deemed to be a right, it will generally trump the will of the majority.
What, then, are these things we call rights? Why are they accorded such a special status in comparison with other strongly held preferences? Why should rights trump the will of the majority? From where do these checks on majoritarian power emanate? From God or human beings? From nature or nurture? Do they exist outside of the law? Or are they merely creations of the law? Are they inherent and inalienable? Or are they merely a self-imposed and repealable majoritarian check on itself ? Who should be empowered to enforce rights against governments and majorities? Are rights absolute? Or must they be balanced against other considerations? What if rights clash? Who decides which one should prevail? Do rights change over time-for example, during emergencies? Or are they eternal and universal?
Of all these questions, the most challenging-both theoretically and practically-is, Where do rights come from? The source of rights determines their status. If rights come from God, then they are truly "unalienable, "as our Declaration of Independence baldly asserts. If they derive from nature, then they are as immutable as the natural laws of physics and astronomy. But if rights are solely the product of human lawmaking-if they are inventions rather than discoveries-then they are subject to modification, even abrogation, by the same source that devised them in the first place. Accordingly, a great deal turns on the answer to the question, Where do rights come from? I will address that intriguing question in considerable detail. But first we must understand what we mean when we use the term right.
The word right is of relatively recent origin, although the ideas embodied in it trace their roots to biblical times. Nor is the term without its ambiguities, multiple meanings-and, indeed, deliberate misuses. At the very least, a right must be somewhat different from a mere preference or interest. It should be something more enduring, more entrenched-something that those in positions of authority should not be able to take away, at least not without a compelling reason. Even in a democracy, the majority should not be empowered to trample the rights of minorities, whatever those rights might be.
Sometimes we use the word descriptively, as in "the constitution gives me a right not to be censored by the government." This is the traditional legal positivist definition of right-a claim grounded in enacted law. The right may be statutory, common law, constitutional, or based on other accepted sources of authority, such as a treaty, a convention, or a contract. But it is entirely a creature of humanly devised law, with no necessary external sources in God, nature, or objective morality.
Sometimes the term right is used prescriptively, as in "I (should) have the right to do anything I want unless it hurts somebody else." But unless the right has been codified, it lacks the status of positive law. As Oliver Wendell Holmes Jr. once quipped about a claim of right grounded in the philosophy of a writer popular in his day: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."
Often there is confusion as to whether a claim of right is descriptive or prescriptive, since not everybody knows the actual content of the law, but nearly everybody has opinions about his or her rights.
While legal positivism grounds all law-and thus all rights-in humanly enacted rules, natural law grounds the content of rights in external sources, such as God, nature, reason, or objective reality. Put colloquially, natural law posits that we don't just make it up as we go along-that there is something beyond human invention that determines the content of morality, law, and rights. Blackstone, whose Commentaries have had enormous influence on Anglo-American jurisprudence, asserted that human laws may not contradict God's laws, and if they do, they have no validity.
To be sure, positive law can be in conflict with natural law, as it often is to advocates of the latter. For example, the decisions of the United States Supreme Court recognizing a woman's right to choose abortion are seen by many as in violation of the natural right to life of the fetus. Some natural-law proponents take the position that although the Supreme Court's decisions have the status of positive law under our constitutional system, they are not really "the law" as mandated by God, nature, or reason and hence should not be followed by just people. As my colleague Lloyd Weinreb put it: natural law asserts "that a rule of positive law that fails to conform to overriding, fully general moral principles, and is for that reason not obligatory, is not truly law at all." Others say that the positive law should be followed-for either prudential or democratic reasons-but that efforts should persist to bring it in line with natural law. In condemning human embryo cell research, the Vatican recently declared it "a gravely immoral, and thus gravely illicit act."
The traditional case for "natural rights" is an uncomfortable one to make in a religiously and philosophically diverse democracy, since the claimed external "sources" for natural rights seem ill suited to such a society.
GOD AS THE SOURCE OF RIGHTS
The first claimed external source of natural rights is God. But experience has demonstrated that the natural rights of the Bible and other holy books can be cited by the devil as well as by conservatives and liberals. "Like a harlot, natural law is at the disposal of everyone. The ideology does not exist that cannot be defended by an appeal to the law of nature."
Those who claim to speak in the name of God have often used natural rights as a tactic-to serve partisan, religious, or personal agendas. For example, in 1873 the United States 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." Women's divinely assigned role was in the "domestic sphere." God's law has also been cited as the source of justification for slavery, serfdom, monarchy, anti-Semitism, genocide against Native Americans, terrorism, and many other evils. Apologists for divine law argue that these were misreadings or misapplications of God's true will. But how are we to be sure that today's "correct" reading of God's law will not be subject to tomorrow's correction? Indeed, 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 to always 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. It insults God to believe that it was he who mandated eternal inequality for women, execution for gays, slavery, animal sacrifice, and the scores of other immoral laws of the Bible, the Koran, and other books that purport to speak in God's name. Humans are to blame for these immoralities, just as humans must be credited with the hundreds of morally elevating laws of these holy books. And it is humans who must continue to change law and morality so as to remain more elevated than the animals who indeed cannot rise above the law of nature and of the jungle. In a diverse world where many claim to know God's will, and where there is consensus about neither its content nor the methodology for discerning it, God should not be invoked as the source of our political rights. In any event, for the millions of good and moral people who do not believe in God, or in an intervening God-or who are agnostic about these matters-there must be other sources of morality, law, and rights.
NATURE AS THE SOURCE OF RIGHTS
The second traditional source for natural rights is that they somehow derive from "the nature" of human beings. But human beings have no singular nature. We include the best and the worst. We are creatures of accidental forces who have no preordained destiny or purpose. We must make our own destiny and define our own purposes. To attempt to derive normative rights from descriptions-even if accuate-of human nature is to indulge in a variation on the "naturalistic fallacy." There is no necessary correlation between what is and what ought to be in a world capable of constant improvement and increasing aspirations.
Of course, there have always been some who believe that we cannot improve upon nature. The idea that nature is inherently good-that it contains a positive moral component or leads in a positive moral direction-goes back a considerable time. Cicero believed that "whatever befalls in the course of nature should be considered good." Juvenal agreed: "Never does nature say one thing and wisdom another," as did Augustine: "All nature is good." John Florio called nature "the right law."
For those who believe that nature is "the image of God," as did Blaise Pascal, or the "art of God," as did Dante, the conclusion that nature is good is little more than a tautology that flows from the premise that God is good and omnipotent. But that conclusion cannot follow for those who share Spinoza's more skeptical view that "nature has no goal in view, and final causes are only human imaginings." Even Einstein, who famously quipped that "God does not play dice with the universe," did not believe that the immutable rules of nature were directly translatable into eternal laws of human morality.
The reality is that nature 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 Albert Schweitzer and Adolf Hitler, Jesus and Torquemada, Kant and Nietzsche, Confucius and Pol Pot, Mandela and bin Laden, the early Martin Luther, 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.
In constructing a moral code-or a system of rights-one should not ignore the varieties of human nature, or their alleged commonalities. But neither can the diverse components of nature be translated directly into morality, legality, or rights. The complex relationship between the is of nature and the ought of morality must be mediated by human experience. The history of rights illustrates this complexity. A rights-based system is certainly not the natural human condition. If there is any natural condition, it is closer to tyranny. The history of humankind has been a history in which the norm has almost always been authoritarianism, elitism, censorship, arbitrariness, and denial of what we have come to call due process of law. Dostoyevsky's Grand Inquisitor saw the surrender to tyranny as necessary to deliver human beings from "their present terrible torments of personal and free decision."He predicted that people will come to understand that "they can never be free, for they are weak, vicious, worthless and rebellious," and that in the end even the most rebellious "will become obedient." For those, like Jean-Jacques Rousseau, who believe that "man is born free," the question arises, Why then is he everywhere "in chains"? Why, as Thomas Hobbes famously observed, is the "life of man, solitary, poor, nasty, brutish, and short"? The answer is because that is closer to the natural human condition, at least descriptively, than any system based on rights. The function of rights, indeed, of law and morality, is to change that natural condition for the better-to improve upon nature, to domesticate its wild beast, and to elevate us from the terrible state of nature into a state of civilization. It is a never-ending challenge. If the advocates of rights fall asleep at the wheel for even one historical moment, there is danger that the natural human condition will rear its ugly head, as it has so many times over the millennia.
Yet from the beginning of recorded history, a relatively small number of liberty-loving individuals have struggled against the deeply ingrained human need for authority, control, domination, paternalism, and, indeed, tyranny. They have lived and died for rights. It is too early in the annals of humankind to know with any degree of certainty whether the entrenched forces of authoritarianism will once again prevail over the recurrent but episodic demands for liberty. What is certain is that the struggle for liberty-and for rights-never stays won.
It is precisely because rights are not natural-that it is not in the nature of most human beings to value the rights of others above their own immediate interests-that we need to entrench certain basic rights, continuously advocate them, and never grow complacent about them. If rights were as natural as some claim, we could expect them to be far more popular than they have ever been among the general public.
We need rights to offset the natural instinct of most human beings to take what they can get, with little concern for the interests of others, particularly strangers. It should not be surprising that among the first rules of religion, civility, and community are Love your neighbor as yourself and What you would not have done to yourself, do not do to others. Listen to a portion of John Adams's argument in defense of the British soldiers who were accused of participating in the Boston Massacre and who claimed the right of self-defense against rock- throwing provocateurs:
The first branch [of human duty ]is self-love. [God ]has implanted it there. . . . Blackstone calls it "the primary canon" in the law of nature. That precept of our Holy religion which commands us to love our neighbor as ourselves. . . enjoins that our benevolence to our fellow men, should be as real and sincere as our affections to ourselves, not that it should be as great in degree.
The secular Oliver Wendell Holmes Jr. echoed Adams's religiously based views when he declared that "in the last resort a man rightly prefers his own interest to that of his neighbor." This recognition of the natural selfishness of most human beings has formed the basis for much religious, economic, political, and philosophical doctrine. John Rawls's influential "original position "is a variation on this recognition of inherent selfishness. The "veil of ignorance" is designed to preclude those in the original position from acting on their selfishness by denying them knowledge necessary to make self-serving decisions. Kant believed that our first political duty is to leave the state of nature, where selfishness is the first rule of survival, and submit ourselves along with others to the rule of a reasonable and just law. These religious and philosophical approaches are striking examples of human beings recognizing the natural is of selfishness and aspiring to the less natural ought of altruism.