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Austin Cline

Where do Rights Come From? (Book Notes: Shouting Fire)

By September 30, 2006

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Shouting Fire: Civil Liberties in a Turbulent Age The nature and origin of rights isn't something that most people spend much time thinking about - it's usually a subject for political and legal philosophy. It is important to the average person, though, because unless we have some idea about where rights come from, we can't say what is and is not a right - much less defend rights against the attacks of those who are more authoritarian.

In Shouting Fire: Civil Liberties in a Turbulent Age, Alan Dershowitz writes:

Rights do not come from God, because God does not speak to human beings in a singular voice, and rights should exist even if there is no God.

Rights do not come from nature, because nature is value neutral.

Rights do not come from logic, because there is little consensus about the a priori premises from which rights may be deduced.

Rights do not come from the law alone, because if they did, there would be no basis on which to judge a given legal system.

Rights come from human experience, particularly experience with injustice. We learn from the mistakes of history that a rights-based system and certain fundamental rights — such as freedom of expression, freedom of and from religion, equal protection of the laws, due process, and participatory democracy — are essential to avoid repetition of the grievous injustices of the past. Working from the bottom up, from our experiences with perfect injustice, rather than from the top down, from a theory of perfect justice, we build right on a foundation of trial and error.

In a word, rights come from wrongs.

It should be noted that Dershowitz, an orthodox Jew and obviously a believer in the existence of God, states right in his first point that rights do not come from God. He believes in God, but is clear that rights do not come from God. This contradicts what many in the Christian Right say, but it may make sense from a Jewish perspective.

After all, there is nothing in the Jewish scriptures about God preferring any particular system of government. God is recorded as setting forth basic moral principles, but no political principles. This is also the case when it comes to the Christian scriptures, but perhaps this isn’t something that enough Christians have figured out yet.

[M]y theory of rights is really a theory of wrongs. It begins with what experience has shown to be absolute injustices: the Crusades, the Inquisition, slavery, the Stalinist starvation and purges, the Holocaust, the Cambodian slaughter, and other unquestionable abuses. It then asks whether the absences of certain rights contributed to these abuses. If so, that experience provides a powerful argument for why these rights should become entrenched. The bottom-up approach builds on the reality that there is far more consensus about what constitutes perfect injustice than about what constitutes perfect justice. If there can be agreement that certain rights are essential to reduce the chances of perfect injustice, that constitutes the beginning of a solid theory of rights.

Dershowitz’s idea of rights, briefly quoted here, is one that I find interesting. Instead of proceeding from a positive conception of rights, he proceeds from a negative conception of what has been “wrong” in the human experience. Instead of looking to what positive things rights are supposed to achieve, he first looks to what negative things rights might be expected to avoid.

At first, this may sound pessimistic, but it does have an important advantage: there are tremendous disagreements among political theorists about what rights are supposed to achieve, but there is little disagreement about what qualifies as tremendous wrongs that we should want to avoid. Put more specifically, there is little disagreement that things like the Holocaust and the Stalinist purges were horribly wrong.

Thus, if nothing else, Dershowitz’s theory of rights at least could provide a unified basis from which theorists of many different perspectives and beliefs can begin. People may end up in different places, it is true, but if they start out from the same position there may be greater opportunities for agreement down the road.

I believe, though, that Dershowitz’s ideas about rights have more than just this pragmatic value. I believe that the political conception of “rights,” basic liberties that the government has a positive obligation to defend, honor, and support, grew out of people’s desire to avoid injustices. Perhaps the earliest moves towards rights were not against “absolute” injustices, but they were injustices nonetheless.

If a government is going to be just, and one which upholds justice, then it must fight injustice. Sometimes, injustice is best countered by establishing a sphere of rights which cannot be breached. We may not always know where and when such spheres of rights should be created, but we can develop a good idea about it by looking at the worst injustices and determining how right might have helped prevent them — just what Dershowitz recommends.


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October 11, 2006 at 4:30 pm
(1) Todd says:

Seems to me that rights are actions that those who (could) have power over you allow you to do because either, they can’t or don’t care to stop you.

So a kid might have the right to stay up until 930 because his parents don’t mind him staying up that extra half hour. Should the child misbehave or the parents turn authoritarian for whatever reason, they might decide to care then attempt to have him go to bed sooner. If the child is 300 lbs of muscle and anger “attempt” becomes the operative word.

If the case of nations, say the USA for example, the same thing applies. We don’t have a curfew (as adults) because the gov’t doesn’t care if we stay out late. If they decided to implement a curfew, they’d have their hands full. It is much easier to let us stay out and play, even if a curfew would reduce crime and other societal ills.

Moving to “bigger” rights like a fair trial, it is still the same thing. It’s in everyone’s interest to have fair trials. We aren’t rioting in the streets or having a civil war, and the current situation doesn’t warrant the cost of removing that right.

Still, in the end, rights are either gifts from those with power (and perhaps wisdom/goodness) or they’re extracted/held by (threat of) force.

October 12, 2006 at 8:00 pm
(2) Chris Julka says:

So if a person is unable to hold onto something through force, or the threat thereof, he has no right to it?

May 23, 2011 at 9:59 pm
(3) emilio says:

if it is as was stated then rights keep evolving.
it either is right or not. where is the premise for developing these arguments. rights don’t come from wrongs.
if they did and there was no wrong then there would be no
right either.
i think rights come from an absolute position that was established. rights are not based on experience but rather on an absolute position like i said.
so then my right must firstly be right or correct.
as far back as we can go, right and what is not right goes back to an absolute position.
i’ve found that rules came out of right being violated and laws were put in place to make sure that we don’t violate rights anymore.
rights came from what is right. and what is right was coded into us by our creator.
i may not be able to prove this but i certainly know that you cannot disprove it either.

May 24, 2011 at 11:28 am
(4) Austin Cline says:

i may not be able to prove this but i certainly know that you cannot disprove it either.

You also cannot “disprove” that rights come from invisible elves that live under your bed – and your statement has as much credibility as this one.

January 10, 2012 at 1:32 am
(5) JeffreyS says:

So, haven’t read the book, but I do have two points that I feel deserve to be quibbled about. There is a Divine preference established in the first book of Samuel, Chapter 8, verses 5-18.
Samuel is serving as a Prophet and Judge in Israel, and he is seen as a mouthpiece for God. God tells Samuel that by choosing to change from a semi-representative government, to an authoritarian one, they have rejected Him. The people are rejecting God by trying to remove themselves from having to make choices for themselves.
I think this can appropriately be seen as an expression of preference, but I welcome discussion if I’ve misunderstood.
The idea of rights not coming from Nature is odd to me, as it’s always seemed clear to me that we’re born with ‘em, after the fashion of Locke’s Natural Law and his concept of the State of Nature, but I don’t have any clever ways to argue this, so I’ll leave it to be.
I do agree with the closing statement of this review. We seem to have two types of rights: basic ones that ask that we be left alone, or be free to stop others from picking on us; and rights that require others to take care of us. I’ve heard people say that food, or shelter, or a job, or healthcare, or even internet access are human rights. While I’d be saddened to see anyone go without these things for long, I can’t see them as of equal importance to the big three of the Declaration of Independence.

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