Are rights innate or are they a possession of the intellect?
Does an embryo or fetus have a right to life? Does a person in a permanent vegetative state?
Does an adult’s right to the pursuit of happiness trump a fetus’ right to life?
Does the Ninth Amendment give Supreme court Justices the right to infer an unspecified right from others expressly stated?
I maintain a right depends on the ability to intellectually desire something, and that the very young and the mentally deficient can desire life in a way that an embryo or vegetative (pvs) person can’t.
I also maintain that a desire to live can be assumed in a comatose person because of previous knowledge of life, but that a fetus has no right to life because of no previous knowledge, therefore no intellectual desire.
I also maintain that if Justices can’t infer rights asserted by plaintiffs then the Ninth Amendment is rendered absurd, since there is no reason to assert the existence of non-specified rights if they can’t be affirmed, and because it would be unreasonable to expect every conceivable act in liberty to be specifically legislated for.
Therefore abortion is a right, and judicial activism is a false claim attributed to the proper interpretation of laws.
The traditional (positivist) view was that whatever rights you have are because the sovereign deigned you to have them to maintain order and their power, not necessarily in that order. Nowadays, the widespread view seems to be that people, and even non-people such as animals, have rights inherently as a living thing because of the dignity of life or the desire to foster respect or some such. It sounds like BS to me because inherently, you can assert whatever rights you want but they don’t mean a thing unless they are recognized by others, particularly those in power (i.e. the state).
But bottomline, rights are a human invention - they don’t come from God, Krishna, or any other divine being. Without them, humanity is totally free. But this presents its own problems, so we implicitly and explicitly decide to surrender some of that freedom in exchange for “rights.”
I’d argue it’s the other way around: “natural law,” the belief that law and rights come from some external source like God, reason, the existence of inalienable rights, or whatever, is the older of the two views, e.g., Saint Augustine’s statement “lex iniusta non est lex,” unjust law is not law. Aristotle theorized the existence of natural law in the Nichomachean ethics, saying that natural law could be distinguished from conventional law in that it reflected an enduring truth rather than a temporary rule.
“Legal positivism” is a relatively more recent challenge to that view, coming from Hobbes (who was the first to use the term, in “Leviathan”) and advanced by Bentham and Austin in the 19th century. At any rate, it’s a dichotomy that jurists have been debating for hundreds of years – I’ll be very surprised and impressed if we can resolve it here in message board form.
“Rights” are the basic postulates, the axioms, the given truths. They are either revealed or self-evident and are truths by definition.
Why do we believe these particular postulates? Well an atheistic secularist may posit that they were selected for by evolution and by cultural evolution as well. Another person may say that they are discovered by Humankind but are universal truths whether anyone believes in them or not, akin perhaps, to laws of physics. Some believe they are divinely given. To answer that question one must enter the theist/atheist/agnostic debate … again. So never mind.
