Examining Rights Claims
by Christopher Dodson
Executive Director
North Dakota Catholic Conference
March 2018

We live in a society of rights talk. In commerce, interactions with others, and especially public policy, people claim to possess rights to certain behaviors, items, and conditions. How should we evaluate these claims? When should the law protect a “right?” When is a “right” really just a personal desire? How do we address competing rights? When are rights absolute?

Negotiating these questions is the function of law. We should start, therefore, by asking, “From where does this ‘right’ come?” If it does not come from any law, the “rights” claim is weak.

Laws come from three sources, some of them interrelated.

Divine law is revealed by God. Without divine revelation it would be unknowable. For Catholics, this includes the “Old Law and the New Law” and is expressed and preserved by the church’s magisterium. An example of a divine law is Jesus’ words “Amen, amen, I say to you, unless you eat the flesh of the Son of Man and drink his blood, you do not have life within you.” (Jn 6:53)

Divine law is eternal and universal, but it may not be known by everyone. It should not become a civil law because doing so would infringe upon a person’s natural right to religious freedom.

Natural law is knowable through reason. It is universal and eternal. It applies to everyone, everywhere, and at all times, even if our grasp of it and application of it may be imperfect.

For example, a person does not have to be Christian or Jew, or to have ever read the Ten Commandments to realize that theft is wrong. Also, just as theft wrong in the time of Moses, it is wrong today and will be wrong a thousand years from now.

Catholic teaching is very clear that certain rights exist because of the natural law. These are usually expressed as the right to: life from conception to natural death; establish a family; work, including a just wage, safe working conditions, and the right form worker associations; migrate; basic education; peace and security; economic initiative; religious freedom; and the means necessary for the proper development of life, including food, clean water, clothing, shelter, medical care, rest, and necessary social services.

All of the natural human rights flow from the life and dignity of the human person and all of them are knowable by reason.

Rights under the natural law have their source in God’s wisdom. As such, although they knowable by other means, they are, like divine law, “God given.”

The third source of law is the positive law. This is the law made by humans. It is the law actually enforceable by civil authorities and the courts. Think of it as what is written on paper. The North Dakota Century Code is positive law. So are the laws and regulations of the United States, your town’s local ordinances, and the constitutions of the United States and North Dakota.

The positive law can change from place to place and time to time. They are not “God given.” As much as one might think the Second Amendment is a good idea, it wrong to say it is a “God given right.”

The task of society is to enact positive laws that reflect and further the natural law. When it comes to rights, we should enact laws that codify and protect natural rights.

Now that we have explored the sources of rights we can begin to examine rights claims by asking some basic questions.

Is the basis for the claim solely from divine law? If so, the claim should not be legally enforceable.

Is the right rooted in natural law? If so it should be knowable by reason, even if people might disagree. For example, the fact that some people support abortion does not mean that we should surrender legal fight to protect unborn life.

Does the claimed right come from positive law? If so, so long as it is a just law, it should be respected. It should also, however, be examined, revised, or repealed if necessary.

What if it does not come from any of those sources but is just what somebody wants? We are seeing more and more of these type of expression of “rights.” Beware that these kind of wants, like expectations to have children or desires to purchase whatever and whenever a person wants could become positive law rights. Any that contradict the natural law must be resisted.