Inalienable right

The term inalienable rights (or unalienable rights) refers to a set of human rights that are said to be absolute, not awarded by human power, not transferable to another power, and incapable of repudiation. Several different sets of inalienable rights have been suggested by philosophers and politicians. Inalienable rights are defined as natural rights, but natural rights are not required by definition to be inalienable.

Origins

Property law was paradigmatic in English common law and property rights, both tangible and intangible, were paradigmatic of all rights. Some property rights were alienable (they could be devised or granted at will) and some were inalienable (they could only be inherited according to fixed rule). The concept of inalienable rights also originates from the concept of natural rights. Natural rights date back at least to the Roman Empire, and was recognized during medieval times, but reach us in the form of the classical liberalism of the 18th and 19th centuries. Classical Liberal thinkers reasoned that each man is endowed with rights, most importantly, the right to life and the right to liberty. However, they reasoned that the natural state of absolute freedom causes anarchy. Eventually each individual forms an implicit social contract, ceding his or her right 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. However, some argued against slavery because there is no way a person can consent to being enslaved in exchange for protection. Consequently, the classical liberals reasoned that people have the right to rebel against tyrants who arbitrarily abuse natural rights.

The concept of natural rights played important roles in the justifications for both the French and American Revolutions. 17th-century philosopher John Locke discussed natural rights in his work, and identified them as being "life, liberty, and estate (or property)". The 1776 United States Declaration of Independence, written by Thomas Jefferson, famously asserts:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men."

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."

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.

Applications in international law

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.

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, argue that use of the word "Creator" signifies that these rights are based on theological principles, and ask which theological principles those are (since none of the major religions of the world assert the existence of inalienable rights ), 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 naturalistic fallacy of David Hume, which is discussed at length in G. E. Moore's Principia Ethica, is the derivation of an "ought" statement from "is" statements with no "ought" premise. Jonathan Wallace claims in his paper "Natural Rights Don't Exist,"[1] 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, English, and Protestant, just as we were. They had to have some other basis on which to justify independence".

See also

• Freeborn

References

• 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

External links

• “Natural and Inalienable Right to Freedom” Slaves Petition for Freedom to the Massachusetts Legislature, 1777.