Human beings are endowed with "inalienable rights." This concept sounds good until one gives it logical analysis, then there are all sorts of arguments. Today I'm looking at the definitional arguments. What constitutes an inalienable right?
Modernity pretty much starts with the English and French versions of the concept of rights. The founding fathers used the terms interchangeably, but modern conservatives parse the definition of these terms in a number of ways. Conservatives claim a distinction between inalienable and unalienable rights, based on court redefinitions:
In America, unalienable rights are those which God gave to man at the Creation, once and for all. This fundamental truth is recognized and enshrined in our nation's birth certificate, the Declaration of Independence:
Unalienable rights are rights that no human being can sell, trade or give up, even if he or she wants to:
"Unalienable: incapable of being alienated, that is, sold and transferred." Black's Law Dictionary, Sixth Edition, page 1523:
"You can not surrender, sell or transfer unalienable rights, they are a gift from the creator to the individual and can not under any circumstances be surrendered or taken. All individual's have unalienable rights."
Conservatives often contrast these rights with "inalienable rights", which they maintain:
Inalienable rights: "Rights which are not capable of being surrendered or transferred without the consent of the one possessing such rights. Morrison v. State, Mo. App., 252 S.W.2d 97, 101."
"You can surrender, sell or transfer inalienable rights if you consent either actually or constructively. Inalienable rights are not inherent in man and can be alienated by government. Persons have inalienable rights. Most state constitutions recognize only inalienable rights."
This distinction is kind of an artificial distinction to me. The reality is that even if one can't sell "unalienable rights", they are regularly infringed on. Maintaining that "inalienable rights" are somehow different from "unalienable rights" seems to me a bit mendacious. The reason is that, while every human being has, for example, a right to life, other rights. People regularly are forced to trade them off, and conservative apologists for this effort invented this distinction in order to "pretend" that somehow these rights can be "alienated" if someone sells them. But the whole point of inalienable or unalienable rights is that people have natural rights, which they "ought to enjoy" and which no governor has the right to deprive them of; whether that governor is a private government (slave-owner or employer) or the Federal Government.
Governments, as the governor of our commons have the effective power over whether any"rights" are real [privileged] or "alienated" oppressed, and all the parsing in the world can't enforce even the most fundamental right on its own. The notion of natural or "god given" rights implies that people have a right and a duty to resist oppression. It doesn't guarantee that rights will be privileged on their own.
The point of both inalienable and unalienable rights is that some rights are fundamental and should bind governments as well as men. The convention that they come from God implies that they bind Governments and authority. The notion of "natural rights" traces these concepts back to the "original state" of man at the very beginning of human intercourse. Modern religious conservatives emphasize that they are from God in order to emphasize that they are superior laws to human laws.
"It is important to understand that the very premise of our nation is the fact that these rights are "God-given." If they are not given to us by an Authority higher than human government, then they are in danger of being abolished by government at any time. The Founders understood this principle and created a revolution in political theory by enacting, for the first time in history, a government specifically established to protect the rights that had been given to man by God."
The unspoken premise of many arguments on this subject is that the author, or his cited authority, speaks for God, and therefor has the authority to define what those rights are. This is the weakness of "God Given" arguments. For one person's "freedom" is another person's law breaking if someone can find some passage of scripture that justifies their oppression.
However, the notion of natural law is also involved. Jefferson and Madison used these terms interchange-ably. Jefferson was a deist. His conception of God was highly abstract and not literal.
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
Conservatopedia continues:
"According to the Founders, unalienable rights belong to each person by virtue of the fact that man is made in God’s image, and is therefore endowed with certain attributes, powers, freedoms, and legal protections as part of his essence. These rights are thus inseparable -- or unalienable -- from each person individually and from the human race in general. They are a gift from the Creator and it is impossible for government to alter or nullify mankind’s divine inheritance."
The reality of this point is that natural law theories and theistic theories harmonize when one realizes that none of us speak for God except to the degree we actually speak the truth. The truth is that God punishes men[it is mostly men] and societies that abrogate or oppress human rights. These principles may not always be self evident until pointed out, but even the attempt to deny or degrade human rights merely shows the hollowness, dishonesty and lack of integrity of those who do such things. Humankind finds a way to be "divine" even when others profane and hurt him. The attempt to deny human rights just blazes forth the importance of them.
The term alien refers to things that are "foreign" or outside of a society, realm, or property. To me rights can be thought of as the boundaries of the properties people own; both temporal (time-wise) , physical, and territorial. The real right to property is not about owning land, houses or even valuables, but about ownership of the tools, materials, and properties people need to survive. We are all like swimmers in a pool. Each of us with goals and objectives, needs and desires. We need to swim in the sea of life, reach our goals, get enough to eat; all without treading on others. The way we do that is by defining properties and rules for acquiring and surrendering property. Law is ultimately about adjudicating the sharing of this property called earth. Law is "just" to the degree to which each swimmer can swim freely in his own "lanes" and acquire from other the licenses and permissions to swim through properties that may be claimed by those others. It is about dividing up and ruling the commons. [The Swimming Pool]
From this point of view, it is possible for the "judges", fellow swimmers, or owners of the pool; where humans create their "swimlanes" to so narrow the swimmers property rights that he or she will drown, but that is the definition of oppression. Inalienable means to me, that if the right is withdrawn it alienates the person being oppressed, the society from that person, and ultimately creates dysfunction and conflict. Unalienable means that even if "might" makes right, it still isn't right.
Right to Life is Fundamental
Each of us requires certain things in order to live. Once we have that baseline, to live decently one requires additional rights in order t pursue happiness. Thus life and pursuit of happiness are fundamental, and liberty is necessary for individuals to pursue happiness or to live in a decent fashion. Liberty requires ownership; temporary or contingent, of property. And ownership of property requires the ability to seek help from the law and get justice, etc.
Rights are associated with sovereignity. When the Barons of England secured their rights they were thinking of their sovereign rights over the parcels of land they owned all over the country. For them ownership of "property" was a natural right, given by God to the elect to rule over the benighted masses. The English Yoeman, Freeman, and City-dweller had to fight for centuries to be included in that definition in England. And their hold on the English constitution is always Tenuous. Royalty in England kept its power by intermarrying into financial circles. Nobody really cares what rights a person acquires until that person starts using their power to oppress others.
You don't get a Robin Hood without oppression.
And this is where rights become a dicey topic. The founding fathers valued liberty, justice and equality so much because they were slave owners. They were basically aristocrats who owned other people. Since the people they owned had very limited and oppressed liberty they knew full well that no matter how "inalienable" or "unalienable" rights are, they are actually rather easy to alienate. For the slave the right to freedom was something foreign to their reality. However, even though it was foreign in the law, slaves dreamed of freedom, and valued it, all the more.
Anything that infringes on people's rights degrades both individual performance and the nations. A slave may be alive, but by not being free he does not enjoy liberty or the right to pursue happiness. He also is unable to perform up to his maximum potential because he was not free to decide for himself where that potential lay. This is true whether one is talking about classic forms of slavery or less literal modern ones.
A person is alienated when, he is treated like an alien, when his rights are infringed. Indeed, increasingly the treatment of people as "foreigners" and the lack of respect for national and cultural boundaries, is at the root of most modern tyranny. Denial of rights of citizenship has proven a tool of oppression world wide.
Still, the efforts to deny basic rights to people only demonstrates the importance and undeniable reality of them. Infringement of human rights is tyranny; Period. The mere denial of rights does not make them invalid. The proof of the inalienability of rights such as liberty and justice is demonstrated in attempts to alienate them.
The fact that people can be alienated, and their rights infringed on, does not mean that they are invalidated. On the contrary the infringement of the slave demonstrated the natural worth and value of the rights infringed on. Attempts to alienate people from fundamental things are just attempts to foster illusion and delusion and thus in the end only foster dysfunction and conflict.
The attempt to deny human rights to slaves ended in massive and bloody warfare in Ancient Greece, Ancient Rome and in the United States and Haiti. Rights can be denied. The attempt to deny rights can alienate people one from another, but it cannot alienate those rights themselves. They are inalienable because like gold, they endure in residue. Slaves can sign away their freedom, but that doesn't make the concept of freedom invalid. A country can enslave its people, but that doesn't make the concept of freedom invalid. On the contrary it only defines people who do these things as tyrants. Jefferson was a hero to his country an a champion of human rights, but at home, no matter how benevolent a tyrant he was he was a slave owning tyrant.
Attempts to parse a distinction between inalienable and unalienable, thus, don't fly. The fact is that even if a person is forced to sign away rights, that doesn't invalidate their moral and ethical primacy and necessity any more than signing an extorted agreement validates a contract with a robber. Concepts such as democracy need to be respected because to do otherwise is both corrupt and tyrannical. As much as our officers would like to pretend they are all wise and all seeing, they aren't. They are chosen as officers because people think they can d the functions of their office. The effort to put a legal face on the naked use of force, deception, and economic advantage just corrupts the system. It doesn't demonstrate that the already powerful and wealthy are superior beings or that the "concept of Government" is at fault. It simply illustrates the processes, hubris, and idiocy of bad government.
At the same time the reason we have law and rule of law is that to negotiate our life swim-lanes, property constantly has to change hands, and sometimes property transactions have to be adjudicated. People need to acquire tools, food, transportation, travel across land, drink water, and use various things that are common goods that frequently belong to someone else. When everyone is "Unalienated" all can exchange things of value or tokens to make these transactions and movements equitable, or those things are not so scarce that anyone is oppressed by their acquisition. When rights are infringed or denied, power is used to make these transactions and some benefit while the many lose. When that happens people have to rebel against their rulers, whether those rulers are Kings, Barons, Robber Baron Financiers, or Corporations stealing coal from farmers.
Countries around the world who never shared in European Culture still demonstrate a love for liberty, justice, life and pursuit of happiness. These are inalienable and natural all the more for centuries of denial.