Inalienable rights

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The term inalienable rights (or unalienable rights) refers to a theoretical set of individual human rights that by their nature cannot be taken away, violated, or transferred from one person to another. They are considered more fundamental than alienable rights, such as rights in a specific piece of property.

Inalienable (Individual) Rights are: natural rights to life, liberty, and the pursuit of happiness. They are the most fundamental set of human rights, natural means not-granted nor conditional. They are applicable only to humans, as the basic necessity of their survival.

[edit] Etymology

"Inalienable" (or "unalienable") is a term borrowed from English common law. Some property rights were alienable (they could be sold or granted) and some were inalienable (they could only be inherited according to fixed rule).

[edit] History

The idea that certain rights are inalienable was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being." Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter."^[1] These ideas may have influenced John Locke's concept of inalienable rights through his attendance of lectures given by Edward Pococke, a professor of Arabic studies.^[2]

In 17th-century England, philosopher John Locke discussed natural rights in his work, and identified them as being "life, liberty, and estate (or property)", and argued that such fundamental rights could not be surrendered in the social contract. These ideas were claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity."^[3]

The distinction between alienable and unalienable rights was introduced by Francis Hutcheson in his A System of Moral Philosophy (1755) based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable." In discussions of social contract theory, "inalienable rights" were said to be those rights that could not be surrendered by citizens to the sovereign. Such rights were thought to be natural rights, independent of positive law. Natural rights date back at least to the Roman Empire, and were recognized during medieval times, but in this context are an element of the classical liberalism of the 18th and 19th centuries. Classical Liberal thinkers reasoned that each man is endowed with rights, of which the rights to life, liberty and property were thought to be fundamental. However, they reasoned that in the natural state only the strongest could benefit from their rights. Each individual forms an implicit social contract, ceding his or her rights to the authority to protect his or her right from being abused. For this reason, almost all classical liberal thinkers, for example, accepted the death penalty and incarceration as necessary elements of government.

"Jefferson took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important."^[4] In the The 1776 United States Declaration of Independence, Thomas Jefferson famously condensed this to:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights. . ." This was changed to unalienable by John Adams at the time of printing the Declaration.

In the nineteenth century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected slavery. As a lawyer, future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:

"The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property."

Many scholars now argue that the Fourteenth Amendment to the Constitution, enacted after the Civil War and the abolition of slavery, wrote the principles of equality and natural rights into the Constitution for the first time. However, it can also been argued that the axiom of inalienable rights was written into the Bill of Rights as the Ninth Amendment rights “retained by the people”.

[edit] Freeborn rights

An alternative argument claims that the idea of inalienable rights is derived from the freeborn rights claimed by the Englishman John Lilburne in his conflict with both the monarchy of King Charles I and the military dictatorship of the republic governed by Oliver Cromwell. Lilburne (known as Freeborn John) defined freeborn rights as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.

[edit] Liberty

Liberty is divided into four types : natural, personal, civil and political. The first two are inalienable, the latter two are government granted. Natural liberty is absolute freedom, limited only by the laws of nature. It is exercised upon one's private property or upon unclaimed property (anywhere else would be a trespass). Personal liberty is the right of locomotion, the freedom to travel upon public roads and waterways; limited only by the requirement to not infringe another's right to travel. Civil liberty is the permission from government to do that which would otherwise be a trespass, a tort or not allowed by law. A license to practice medicine is an example of a civil liberty (inflict injury without criminal liability). Political liberty is the permission to vote and hold office. In countries with socialist / communist governments that abolish private property rights, natural and personal liberty do not exist. Permission (license) is required for most activities and actions.

[edit] Rights based on de facto inalienable capacities

One golden thread of argument was developed in the anti-slavery and democratic movements. It dates back to the Stoics and descends through the Reformation to the Enlightenment (mostly Scottish and German). The Stoics held that no one was a slave by their nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca wrote:

It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined.^[5]

The Stoic doctrine that the "inner part cannot be delivered into bondage" ^[6] re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:

Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force. ^[7]

The Scottish Enlightenment in the person of Francis Hutcheson made the de facto inalienability of this liberty of judgment into a theory of inalienable rights. "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable." ^[8] In the German Enlightenment, Hegel gave the most developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. But the same would not apply to those aspects that make one a person, wrote Hegel:

The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them.^[9]

The historical sophisticated apologies for slavery and non-democratic governments were based on explicit or implicit voluntary contracts to alienate any "natural rights" to freedom and self-determination.^[10] But the de facto inalienability argument provided the basis for the anti-slavery movement to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection (pactum subjectionis) by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in Leviathan by Thomas Hobbes. According to Ernst Cassirer,

There is, at least, one right that cannot be ceded or abandoned: the right to personality…They charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his personality he would cease being a moral being. … There is no pactum subjectionis, no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity.^[11]

These themes converged in the debate about American Independence. While Jefferson was writing the Declaration of Independence, Richard Price in England sided with the Americans' claim "that Great Britain is attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title." ^[12] Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause.^[13] Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:

Neither can any state acquire such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property.^[14]

Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the de facto basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess." ^[15] In Intellectual Origins of American Radicalism, Staughton Lynd pulled together these themes and related them to the slavery debate:

Then it turned out to make considerable difference whether one said slavery was wrong because every man has a natural right to the possession of his own body, or because every man has a natural right freely to determine his own destiny. The first kind of right was alienable: thus Locke neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who might lawfully have killed him; and thus Dred Scott was judged permanently to have given up his freedom. But the second kind of right, what Price called "that power of self-determination which all agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for religious truth from which it was derived, self-determination was not a claim to ownership which might be both acquired and surrendered, but an inextricable aspect of the activity of being human. ^[16]

[edit] Applications in international law

Many documents now echo the phrase used in the United States Declaration of Independence. The preamble to the 1948 Universal Declaration of Human Rights asserts that rights are inalienable: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." However, of course, there is dispute which "rights" are truly natural rights and which are not.

[edit] Criticism

The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke, writing in the eighteenth century, claimed that rights arise from the actions of government, or evolve from tradition, and that neither of these can provide anything inalienable. (See Bentham's "Critique of the Doctrine of Inalienable, Natural Rights", and Burke's "Reflections on the Revolution in France"). Keeping with shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts".

The signers of the Declaration of Independence deemed it a "self evident truth" that all men are "endowed by their Creator with certain unalienable Rights". Critics, however, could argue that use of the word "Creator" signifies that these rights are based on theological principles, and might question which theological principles those are, or why those theological principles should be accepted by people who do not adhere to the religion from which they are derived.

Derivation of inalienable rights from Natural Law can also be criticized on solely philosophical grounds. The is-ought problem of David Hume is the fallacy of deriving normative propositions (how the world ought to be) from naturalistic ones (how the world is) without providing the necessary justification for such a logical jump. Jonathan Wallace claims in his paper "Natural Rights Don't Exist,"^[17] that the phrase "We hold these truths to be self-evident" is simply a "more elegant version of 'Because we said so.'"

In "The Social Contract," Jean-Jacques Rousseau claims that the existence of inalienable rights is unnecessary for the existence of a constitution or a set of laws and rights. This idea of a social contract – that rights and responsibilities are derived from a consensual contract between the government and the people – is the most widely recognized alternative.

Samuel P. Huntington, an American political scientist, wrote that the "inalienable rights" argument from the Declaration of Independence was necessary because "The British were white, Anglo, and Protestant, just as we were. They had to have some other basis on which to justify independence".

[edit] Notes

[edit] References

• Hutcheson, Francis. A System of Moral Philosophy. 1755, London.
• Locke, John. Two Treatises on Government. 1690 (primarily the second treatise)
• Lloyd Thomas, D.A. Locke on Government. 1995, Routledge. ISBN 0-415-09533-6
• Waldron, Jeremy [ed.] Theories of Rights 1984, Oxford University Press. ISBN 0-19-875063-3

[edit] External links

• “Natural and Inalienable Right to Freedom” Slaves Petition for Freedom to the Massachusetts Legislature, 1777.
• Unalienable definitions, citations
• Unalienable Rights - from God