At Cafe Hayek, Don Boudreaux links to his Freeman article from December 2003 on the source of rights. Don’s article is excellent, but there is a subtlety that I think needs to be highlighted and discussed to prevent misunderstanding.
There is a difference between the enforcement of rights and the creation of rights. Those who enforce are not necessarily the same as those who create. For example, let’s say I create a business: I design the product, I market it, I sell it, etc. However, to protect my business, I hire someone to patrol the grounds when I am not around. While I created the business, she enforces my claim to the business. It’d be incorrect to conclude that, because she enforces the claim, she thereby created the claim. She was just chosen as the method of the enforcement; the claim (in this case, the business) preceded her. Indeed, it had to.
The same is true of rights. A government may be desirable to enforce and protect rights (like the nightwatchman in my example above), but those rights need to precede the enforcement. So, the fact that an agency enforces something does not mean that it also creates. Pointing to the government as an enforcer does nothing to show that it is the originator.