Rights are a Child of Law

“Right … is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters.” Jeremy Bentham

A lot of people have tried to convince me that rights exist before laws. I will have no truck with such nonsense.

How can there be a right which is not observed? A right that is not recognized is not a right at all but merely a grievance. When a right is recognized it is recognized by becoming a law. It was the law of the wild west that shooting a man in the back was murder but if he had a gun and was shot in the chest while standing up there was a presumption that he was killed in a fair fight unless witnesses stated otherwise.

A law is something that is recognized and acted upon. It is not vellum, ink and sealing wax that makes a law but recognition. Some parts of law are so basic that they are not fully codified, if this works there is no problem.

It is not the right that can survive the abolition of a state, it is the law. A right that is honoured can only be honoured by a law, showing a right being honoured is proof of the existence of that law even if you may have difficulty in pointing to a legitimate source for the law.

The exception proves the rule. If you can find an exception you have proved the existence of a general rule, or a law. A prohibition on parking wagons and flocks of geese on the village green in Lent is evidence that it is lawful to park them there at other times.

Laws can exist which deny rights which people claim cannot be removed. But just look, if the law works and the right is trampled upon obviously that right does not exist in that circumstance. In many parts of the world the right to life does not exist for the unborn, for superfluous kittens and for vermin. It does not do any good to declare that the right to life cannot be abrogated because reality is clearly flouting the definition of right, cannot and abrogated. If the law recognizes a right to end a pregnancy under certain conditions that is a real right, it is sanctioned by law and the hypothetical right to life clearly does not apply in that case. It doesn’t matter how much you bewail the fact it is clearly the case that a law has created one right and circumscribed another one.

Charles I believed he ruled England by divine right. Parliament had other ideas, the law spoke and revealed the fiction of his divine right to rule and his right to life as well. Unfortunately, a lot of fiction still remained in the concept of rights which still needs purging today.

Religious people should be kept away from laws and constitutions because they cannot help but force their deity into the legal system where he/she/they have no cause to be. Human freedom should not be based upon giving lip-service to lies, myths or imaginary beings, especially those invented by other people.

Things are already bad enough with atheists given the impression that marriage, fidelity, sobriety, honesty, integrity, compassion, charity and good manners are all alien to the atheist and are the property, invention and birthright of followers of Jesus Christ alone. How much worse can things be made by having religion wrapped firmly around the roots of the state and government? We need to be aware of the insatiable drive of the religious to piss on everything that is good, sound and decent in this life and stain it with the stench of their ignorant superstitions. We should resist this at every turn. Secularism is vitally important. If their god, prophet, gurus or saints are good then they will look favourably upon good institutions and be happy to align themselves with them. They do not need a name-check from the state in order to do that and granting any such concessions to the religious risks poisoning the entire endeavour with religion.

“We hold these truths to be sacred and undeniable; that all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, and liberty, and the pursuit of happiness.”

Thomas Jefferson’s first draft of the declaration of independence is clearly superior to the final draft which gives much greater prominence to the role of the creator, in the first place by directly referring to him rather than merely allowing those who want to make such an inference to do so. What is objectionable about this sentence to a god-botherer? The change from undeniable to self-evident seems a good one, of course, people can deny such a statement so saying that it is undeniable is a mistake, it can be denied but only by denying that which is (to the signatories at least) self-evident.

Nice try Tom, close but no cigar. This is an aspiration not a declaration of fact. Life under a regime which denies these rights is likely to be nastier than one which enshrines them in law but many regimes have denied these rights and no doubt will continue to do so. It does you no good to claim you have a right to property when your tribe thinks everything you have they are entitled to a share of and the right to pursue happiness is prescribed in thousands of different ways in hundreds of different kinds of states and societies.

So how would I phrase it better? “In order to secure rights for the people we the representatives of the people do set up a system of government for the creation of fair and just laws.” That is avoiding any attempts to anchor the enterprise to any supposed eternal verities which may come unstuck and is telling it like it is. That is a no bullshit recipe.

People deserve rights and the way to have those rights protected, to have those rights made real, is by the creation of sound and workable laws. People create governments and other law-making bodies to create rights. If rights simply existed laws, lawyers, police, judges, courts and prisons would not. It is because rights don’t just simply exist that we consent to be governed and regulated. Laws restrict our freedom but ensure us some rights. Laws can create rights that people didn’t even know they wanted to have.

In recent years we have seen the right to equal pay, the right not to be discriminated against on the basis of sexual orientation, the right to roam over mountain and heath, the right to have legal recognition of a same-sex partnership, the right to try to trace parents if you are adopted, the right to state recognition of a change in sex, the right to paid leave of absence from work for new fathers and dozens more new rights. These rights did not exist before the laws that granted them came into existence. Similarly other rights have been taken away such as the right to set your dogs on foxes, the right to enjoy your own property in privacy if other people think it’s pretty enough for them to walk over but not pretty enough for them to consider buying off you, the right to smoke your own cigarette in your own van on your own time and the right to make soup out of fungi that spontaneously grow on your lawn. The law changes and your rights change. If you subscribe to the laws follow on from inherent rights school of thought this should give you palpitations, and perhaps the prod you need to recognize that you’re wrong and I’m right. Laws create, restrict and shape rights.

Without a law who is to decide the matter whose grievance takes priority? “You can’t take my picture, it’s a free country” is a classic piece of rights nonsense. With no legal intervention taking photographs or stopping people taking photographs is simply a case of who has the power. If I am bigger than you I can take your photograph and you can whine about it, if you are bigger than me pointing a camera at you is to invite trouble and possibly a dispute over the ownership of the camera.

One of the most hysterically funny episodes in my life came when I pointed my camera at a Citroen Saxo with a white kid of about twenty behind the wheel. He looked at me through his mirror shades under his baseball cap and threatened he would get “de Babylon” onto me for infringing his rights. Innit. That was funny on so many different levels.

Do you have an absolute right to privacy when you are in a public place? Probably not. And if the law doesn’t give you such a right then clearly you don’t have that right. One day a law may say such a thing, but until it does then you are as free to point your camera at a silly young man in a silly car on a public road as you are to look and point and laugh.

A right without a law is just a grievance. It is law that creates rights, out of empathy and enlightened self-interest.

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