Rights Are Not Social Constructs, and Here Is the Answer to That Claim

Ask a first-year student at almost any university where his rights come from, and there is a decent chance he will answer with a shrug: society. We all agreed on them, or somebody wrote them down, and that is that. If a different society wrote different rules, it would have different rights. Rights are conventions, like the rules of cricket, only with more paperwork.

Notice how reasonable that sounds. It sounds modest, even scientific. No mysticism, no appeals to heaven. Just people making rules. And there is exactly one thing wrong with it: it makes it impossible to say that anything any government ever did was a violation of rights. If rights are whatever a society says they are, then a society that says you have none is not wrong. It is merely different.

I want to make the case against that claim, and make it properly. First I will define the terms and state the other side at its strongest, because the people who hold this view are not fools, and their best representatives have been among the sharpest minds in the history of law. Then I will answer in numbered points.

Defining the question

A natural right, in the tradition the Founders inherited, is a claim that a person has by virtue of being a person, whether or not any government recognizes it. The Declaration of Independence gives the classic statement: that all men "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that "to secure these rights, Governments are instituted among Men."

A legal right, on the other hand, is a claim that a legal system actually recognizes and enforces. Nobody doubts that these exist. A right to vote in the next election, a right to a jury, a right to a refund: you can find these in a statute book.

The dispute is not about legal rights. It is about whether there is anything beyond them. The legal positivist says no: law is a fact about what the rulers have commanded, and rights are what the law says they are. The believer in natural rights says yes: there is a standard against which law may be judged, and law that violates it is unjust, or, in the old phrase, no law at all.

The positivist case at its strongest

The best-known blast against natural rights came from Jeremy Bentham, the English philosopher and reformer. Writing in the 1790s against the French Declaration of the Rights of Man, in a manuscript later published as Anarchical Fallacies, he wrote that natural rights are "simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts."

His reasoning was not silly. It runs in four steps. First, a right is a claim that can be enforced, and the only thing that enforces claims is a government. Second, a "right" that no government will enforce is like a check drawn on a closed account: it looks like something and it is not. Third, talk of natural rights lets people dress up their preferences as sacred and refuse to compromise, which is how revolutions turn bloody. Fourth, the proper test of any law is utility: does it produce more happiness than the alternatives? That is a question for evidence, not for metaphysics.

Bentham's follower John Austin, in The Province of Jurisprudence Determined (1832), gave the theory its classic form: law is the command of a sovereign, backed by a threat. The twentieth century refined it. H. L. A. Hart's The Concept of Law (1961) is more subtle and more humane than Austin. Hart held that law is a system of rules that officials accept, and that whether a rule is law depends on its source and not on its moral merit. There is no necessary connection, he said, between law and morality.

Let me grant the positivists three things. They are right that it matters to distinguish what the law is from what it ought to be. A judge who simply announces what he thinks the law ought to be is not doing his job. They are right that appeals to "natural rights" have sometimes been used carelessly, to give a halo to any wish. And they are right that rights need institutions to be reliably protected. A right with no remedy is a hope.

So here is the argument at its best: rights are social facts, institutions are what make them real, and sentiment about "nature" adds nothing but heat.

Now the answer.

Answer one: the Declaration did not claim the king had granted our rights

Begin with the founding document, because it is the standard by which Americans should measure the claim. The Declaration says our rights come from the Creator and that governments are instituted to secure them. Not to grant them. The logic is of a piece with the whole document's structure. It lists twenty-seven or so grievances against the King, and every one of them is a charge that he violated something. If rights were simply what the sovereign allowed, then the King could not have violated anything. He was the sovereign. What the sovereign did was by definition the law.

That is, indeed, what a pure positivist defender of George III would have said in 1776, and some did. Parliament had passed the Declaratory Act of 1766 asserting its power to make laws binding the colonies "in all cases whatsoever." On positivist premises the Americans had no complaint. On the Declaration's premises the claim is that there is a higher standard, a law of "Nature and of Nature's God," to which the King and Parliament were answerable and which they had broken.

You can accept the Revolution or you can accept the positivist account of rights, but you cannot consistently accept both. Anyone who thinks the Americans were right to resist taxation without representation has already conceded that there is a standard of justice beyond the law on the books.

Answer two: Nuremberg

The second answer is darker and, I think, decisive. After the Second World War, the Allies tried the surviving leaders of Nazi Germany at Nuremberg, beginning in November 1945. Under German law at the time, almost everything the defendants did was legal. The Nuremberg Laws of 1935 were laws. The orders to deport and exterminate were issued by lawful authority, under a regime that had taken power by forms the German constitution recognized and ruled through statutes and decrees. If law is the command of the sovereign, the defendants had a perfect defense.

The tribunal rejected it. The Charter of the International Military Tribunal, Article 8, provided that the fact that a defendant acted under the order of his government or of a superior "shall not free him from responsibility," though it could be considered in mitigation of punishment. The judgment, delivered on October 1, 1946, held that individuals have duties that transcend the obligations of obedience imposed by the state. The chief American prosecutor, Supreme Court Justice Robert Jackson, built the case on the idea that some acts are crimes whatever the law of the place says. See Robert Jackson Left the Supreme Court to Prosecute the Nazis at Nuremberg.

German jurists drew the same lesson. Gustav Radbruch, a distinguished legal philosopher who had been a positivist before the war, argued in 1946 that when a statute's injustice reaches an intolerable degree, the statute must give way to justice, and he treated German jurists as victims of a positivism that had taught them to apply any statute simply because it was law.

Let us put this in the plainest terms. If rights are social constructs, Nuremberg was victors' justice, plain and simple, and a lawful regime that murdered millions did nothing wrong by its own standards. Almost nobody believes that. The prosecution and the whole civilized world say: those orders were crimes. That is a natural-rights claim.

Answer three: the abolitionists and the higher law

Americans have a native tradition on this question and it is a proud one. The Constitution of 1787, in provisions such as the Fugitive Slave Clause, recognized slavery in the law, and the Fugitive Slave Act of 1850 forced free states to help return people to bondage. The Supreme Court in Dred Scott v. Sandford (1857) held that Black Americans could not be citizens and that Congress could not bar slavery from the territories. As far as the law then on the books was concerned, slavery was lawful property.

The abolitionists answered that the law was wrong, and that there was a standard above it. William Lloyd Garrison, who burned a copy of the Constitution in 1854 and called it "a covenant with death," made this argument in its most extreme form. Senator William Seward, in his speech against the Compromise of 1850 on March 11, 1850, put it more moderately: there is, he said, a higher law than the Constitution. Frederick Douglass made the argument on the Constitution's own terms, arguing that its text did not sanction slavery, and appealed to the natural rights of every person throughout his life.

Martin Luther King Jr., in his "Letter from Birmingham Jail" of April 16, 1963, put the same principle in a sentence anyone can remember. He wrote that "an unjust law is no law at all," attributing the thought to St. Augustine, and that one has a moral responsibility to disobey unjust laws. King was arguing, in the middle of the twentieth century, that segregation statutes were unjust despite being lawful, because they violated the moral law. If rights are only what the legislature has granted, King was a lawbreaker with no ground to stand on. If they are what the Declaration says, he was a witness for the truth.

So the three great moral victories of American history, independence, abolition and civil rights, were all won on a natural-rights argument. A positivist cannot say that those who lost were wrong, only that they lost.

Answer four: what follows if rights are grants

The fourth answer is about consequences. Suppose the claim is true. Then rights are gifts from society, and a gift can be taken back. A majority that votes to take away the rights of a minority is exercising its authority; it has not done anything wrong, because wrong would require a standard. A government that rules by decree has a legal right to rule.

There is also a practical difficulty. The positivist answer to the question "Who decides?" is "whoever has the power." That makes the whole business a matter of force. A conservative will smell the danger at once. The whole point of constitutional government is to put some things beyond the reach of the powerful, and to say to a majority, or to an administrative agency, that there are things it cannot do. The idea of a right is the idea of a limit that does not depend on the goodwill of the party being limited. See Unalienable Means You Cannot Even Give Your Rights Away, and Here Is Why.

And note the quiet irony. The people who tell us that rights are social constructs are, by and large, the same people who campaign loudest for new rights. They want rights to housing, to health care, to everything. But if rights are merely what society decides, then there is no argument for those rights beyond the vote, and no argument against abolishing them by the same route. The claim that rights are constructs cuts both ways, and the person who makes it should be prepared to live with the other edge.

The strongest objection to my answer

A careful positivist will respond with several objections, and the best of them deserves an honest reply.

1. Natural rights talk is vague, and people disagree about what they are. True. But disagreement about the edges does not show there is no core. People disagree about what is healthy and agree that arsenic is poison. Every serious tradition of thought, from the Hebrew Scriptures to Aristotle to Aquinas, has agreed that murder, theft and perjury are wrong independent of whether a ruler allows them. See From Cicero to Aquinas to Jefferson, the Long Road of Natural Law.
2. You do not need metaphysics to condemn Nazism; you can appeal to shared human sympathy. Perhaps, but sympathy is a feeling, and feelings are what the Nazis said they had in different quantities. A feeling cannot bind. A moral truth can.
3. Hume showed you cannot derive "ought" from "is." Hume's observation is a good reason to be careful about how we argue, and Hume himself doubted that the social contract explained anything. But it cuts against the positivist as well: you cannot derive an "ought to obey" from the fact that the sovereign issued a command. See Hume Doubted the Social Contract, and Conservatives Learned From Him.
4. The idea of a Creator makes the whole structure depend on religion. Yes, and the Founders said so. They do not hide the source. One can reach many of the same conclusions by reason alone, as the classical natural-law tradition did, but the claim that every human being has an inherent dignity and equal worth is hard to find a better ground for than the idea that each is made in the image of God. See Made in God's Image, the Idea Behind Every Claim to Human Dignity.

My verdict: the positivist is right that rights need laws to protect them, and wrong that rights are nothing more than the law. The truth, as the Founders knew, is that rights come first and government is the instrument built to defend them.

The case in brief

1. A natural right is a claim a person holds as a person; a legal right is one a government recognizes. The dispute is whether anything exists beyond the second kind.
2. The Declaration grounds rights in the Creator and treats government as their guardian, which is why the Americans could charge the King with violating them.
3. Nuremberg rejected the defense that the defendants followed lawful orders, and that rejection is a natural-rights judgment.
4. The abolitionists and Dr. King appealed to a law above the statute book and won, and the positivist cannot explain why they were right.
5. If rights are only grants, a majority or an agency can revoke them without wrong, and the whole purpose of constitutional limits disappears.

What you can do: read Article 8 of the Nuremberg Charter and the second paragraph of the Declaration side by side, and ask a friend which standard he would use to judge a law he thought unjust, and where it came from.