INALIENABLE RIGHTS
1. The first line of the Preface to the UDHR states:
Whereas 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.
And in a cover letter the UN High Commissioner for Human Rights wrote:
They are the inalienable entitlements of all people, at all times, and in all places--people of every colour, from every race and ethnic group; whether or not they are disabled; citizens or migrants; no matter their sex, their class, their caste, their creed, their age or sexual orientation.
We will later ask whether they are timeless (“at all times”) as the High Commissioner wrote. For now, my question is whether it is true that human rights are inalienable.
The Declaration of Independence says, famously:
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.
(I wonder: is there a right to ‘the pursuit of happiness’? Or is that just rhetoric? Rights-inflation?)
2. What does it mean to say that a right is inalienable? Short answer: it cannot be alienated.
Rights can be alienated in either of two ways: they can be waived, and they can be forfeited. If you are arrested by the police, you have the right to remain silent and the right to call a lawyer. But this is a right you can waive. Waiving has to be voluntary.
Rights can also be forfeited. If you are commit certain crimes and are convicted, you have forfeited your right to liberty. The state does not violate your right to liberty when it imprisons you. (This is true, isn’t it?)
3. Are there any inalienable rights?
Is it possible that the right not to be killed is inalienable? If so, then capital punishment cannot be justified.
What about killing in war? When Allied soldiers killed Nazi soldiers in WWII, did they violate the right of the Nazi soldiers not to be killed? Pacifists may think so, but anyone who accepts the idea of a just war has to disagree. If killing in war can be justified as a case of self-defense, then perhaps the Nazi soldiers forfeited their right not to be killed. But what about the Allied soldiers? By attacking the Axis armies, did they also forfeit their right not to be killed? Were the Nazi soldiers killing in self-defense?
What about collateral damage–the euphemism for killing that is unintended. When the US kills a terrorist with a drone strike, sometimes some (or all of) the terrorist’s family members are also killed. The death of the terrorist was intended; the death of the family members may have been foreseen but unintended. Just war theory says that killing noncombatants can be morally permissible as long as their deaths were unintended and were proportionate (as long as the number killed was not excessive–that, of course, raises all kinds of questions).
And of course there are ordinary cases of killing in self-defense. The standard argument is that the attacker has forfeited his right not to be killed (if killing him is necessary and proportionate).
What about the right not to be tortured? Many Americans back in the days (and years) after 9/11 believed that terrorists who planted bombs endangering hundreds (or thousands, or tens of thousands–let your imagination go wild) had forfeited their right not to be tortured if that was the only way to get them to reveal the location of the ‘ticking time bomb.’ (You might wonder, of course, about people who were believed to know where the bomb had been hidden, but didn’t.)
4. Are there any inalienable rights? Or is it possible that any right can be forfeited if the circumstances are extreme enough (as in the torture and the ticking time bomb case)?
5. Most people say that the right against rape is inalienable. Is it? Can you imagine circumstances in which rape would be morally permissible?
6. What (retired MIT philosopher) Judith Thomson says in her book, The Realm of Rights (Harvard University Press, 1990), is helpful. She says that we use the idea of inalienability in three senses.
First, to say that a right is inalienable can mean that others lack the power to deprive us of it. It is an immunity (in Hohfeld’s sense). (See “6 Rights: Categories & Analysis of Rights (SEP) by Leif Wear” on my blog.)
Second, to say that a right is inalienable can mean that “a person cannot make himself or herself cease to have it by sale or other form of trade” (283). “Property rights are certainly not inalienable in this sense,” she says. Can you sell your right to self-defense? Can you sell yourself into slavery? Thomson thinks you can (although she admits to having no argument).
Third, “an inalienable right is one that a person cannot make himself or herself cease to have by any means at all, whether sale or anything else” (284). An inalienable right in this sense cannot be forfeited (nor, I presume, can it be waived).
Thomson seems to say (or imply) that when people talk about some rights being inalienable, it is the first sense of inalienability that they have in mind. (No one denies that some rights can be forfeited.) What is the difference between the first and the third? In the first sense, if my right to R is inalienable, then you cannot take it away from me. In the third sense, if my right to R is inalienable, then I cannot forfeit (or waive) it.
COMMENT: Can you sell yourself into slavery? Are slavery contracts valid? Suppose that Alex’s grandmother needs expensive, life-saving surgery, and neither he nor she can afford it (and she lacks insurance). But Arnold tells Alex that he will pay for Grandma’s surgery if Alex agrees to be Arnold’s slave for one year. Feeling backed into a corner, Alex agrees. Arnold pays for the surgery (which is successful beyond anyone’s wildest dreams). But on Day 5, Alex decides that being a slave is a drag and he runs away. Arnold chases him down and restrains him. Alex appeals to a passing police officer for help, saying he is being kidnaped. Arnold shows the cop the contract.
What should the cop do? My answer: the contract is invalid. It cannot be legally enforced. (Is that an ‘unconscionable contract’? If so, why?) If Alex wants to promise to be Arnold’s slave for one year in return for Arnold paying for Grandma’s surgery, he is free to do that. And if Arnold wants to trust Alex not to break his promise after a few days, he is free to do that (a sucker is, after all, born every minute). But Arnold cannot use the law to force Alex to be his slave for one minute longer than Alex wants to.
Is Alex Arnold’s slave in this case? Probably not, since he is free to walk away whenever he wants to (and slaves cannot do that). Nor does Arnold have the right to chain Alex to the hitching post. Unless he is willing to release Alex as soon as he demands to be released.
Real-Life Analogy: Before Curt Flood, baseball players were legally bound to the team that they originally signed with. They might sign only, say, a five year contract, but at the end of the five years, the club could invoke the “reserve clause” and keep the player for one more year. The player could either play for a sixth year (probably for a reduced salary), or he could hold out (not play and try to force the team to raise his salary). In other words, he could not be forced to play (so in that sense he was not a slave). But what if he refused to play for one year; was he then free to sign with another team, or could his original team exercise its rights under the reserve clause and renew his salary a second time? If the latter, the player had only two alternatives: play for the team that had originally signed him, or retire. I am not sure any player ever tried to find out whether these one-year contracts could be renewed indefinitely; the rule was unclear. But once players gained the right to play out their contracts and become free agents, their salaries skyrocketed.
1. The first line of the Preface to the UDHR states:
Whereas 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.
And in a cover letter the UN High Commissioner for Human Rights wrote:
They are the inalienable entitlements of all people, at all times, and in all places--people of every colour, from every race and ethnic group; whether or not they are disabled; citizens or migrants; no matter their sex, their class, their caste, their creed, their age or sexual orientation.
We will later ask whether they are timeless (“at all times”) as the High Commissioner wrote. For now, my question is whether it is true that human rights are inalienable.
The Declaration of Independence says, famously:
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.
(I wonder: is there a right to ‘the pursuit of happiness’? Or is that just rhetoric? Rights-inflation?)
2. What does it mean to say that a right is inalienable? Short answer: it cannot be alienated.
Rights can be alienated in either of two ways: they can be waived, and they can be forfeited. If you are arrested by the police, you have the right to remain silent and the right to call a lawyer. But this is a right you can waive. Waiving has to be voluntary.
Rights can also be forfeited. If you are commit certain crimes and are convicted, you have forfeited your right to liberty. The state does not violate your right to liberty when it imprisons you. (This is true, isn’t it?)
3. Are there any inalienable rights?
Is it possible that the right not to be killed is inalienable? If so, then capital punishment cannot be justified.
What about killing in war? When Allied soldiers killed Nazi soldiers in WWII, did they violate the right of the Nazi soldiers not to be killed? Pacifists may think so, but anyone who accepts the idea of a just war has to disagree. If killing in war can be justified as a case of self-defense, then perhaps the Nazi soldiers forfeited their right not to be killed. But what about the Allied soldiers? By attacking the Axis armies, did they also forfeit their right not to be killed? Were the Nazi soldiers killing in self-defense?
What about collateral damage–the euphemism for killing that is unintended. When the US kills a terrorist with a drone strike, sometimes some (or all of) the terrorist’s family members are also killed. The death of the terrorist was intended; the death of the family members may have been foreseen but unintended. Just war theory says that killing noncombatants can be morally permissible as long as their deaths were unintended and were proportionate (as long as the number killed was not excessive–that, of course, raises all kinds of questions).
And of course there are ordinary cases of killing in self-defense. The standard argument is that the attacker has forfeited his right not to be killed (if killing him is necessary and proportionate).
What about the right not to be tortured? Many Americans back in the days (and years) after 9/11 believed that terrorists who planted bombs endangering hundreds (or thousands, or tens of thousands–let your imagination go wild) had forfeited their right not to be tortured if that was the only way to get them to reveal the location of the ‘ticking time bomb.’ (You might wonder, of course, about people who were believed to know where the bomb had been hidden, but didn’t.)
4. Are there any inalienable rights? Or is it possible that any right can be forfeited if the circumstances are extreme enough (as in the torture and the ticking time bomb case)?
5. Most people say that the right against rape is inalienable. Is it? Can you imagine circumstances in which rape would be morally permissible?
6. What (retired MIT philosopher) Judith Thomson says in her book, The Realm of Rights (Harvard University Press, 1990), is helpful. She says that we use the idea of inalienability in three senses.
First, to say that a right is inalienable can mean that others lack the power to deprive us of it. It is an immunity (in Hohfeld’s sense). (See “6 Rights: Categories & Analysis of Rights (SEP) by Leif Wear” on my blog.)
Second, to say that a right is inalienable can mean that “a person cannot make himself or herself cease to have it by sale or other form of trade” (283). “Property rights are certainly not inalienable in this sense,” she says. Can you sell your right to self-defense? Can you sell yourself into slavery? Thomson thinks you can (although she admits to having no argument).
Third, “an inalienable right is one that a person cannot make himself or herself cease to have by any means at all, whether sale or anything else” (284). An inalienable right in this sense cannot be forfeited (nor, I presume, can it be waived).
Thomson seems to say (or imply) that when people talk about some rights being inalienable, it is the first sense of inalienability that they have in mind. (No one denies that some rights can be forfeited.) What is the difference between the first and the third? In the first sense, if my right to R is inalienable, then you cannot take it away from me. In the third sense, if my right to R is inalienable, then I cannot forfeit (or waive) it.
COMMENT: Can you sell yourself into slavery? Are slavery contracts valid? Suppose that Alex’s grandmother needs expensive, life-saving surgery, and neither he nor she can afford it (and she lacks insurance). But Arnold tells Alex that he will pay for Grandma’s surgery if Alex agrees to be Arnold’s slave for one year. Feeling backed into a corner, Alex agrees. Arnold pays for the surgery (which is successful beyond anyone’s wildest dreams). But on Day 5, Alex decides that being a slave is a drag and he runs away. Arnold chases him down and restrains him. Alex appeals to a passing police officer for help, saying he is being kidnaped. Arnold shows the cop the contract.
What should the cop do? My answer: the contract is invalid. It cannot be legally enforced. (Is that an ‘unconscionable contract’? If so, why?) If Alex wants to promise to be Arnold’s slave for one year in return for Arnold paying for Grandma’s surgery, he is free to do that. And if Arnold wants to trust Alex not to break his promise after a few days, he is free to do that (a sucker is, after all, born every minute). But Arnold cannot use the law to force Alex to be his slave for one minute longer than Alex wants to.
Is Alex Arnold’s slave in this case? Probably not, since he is free to walk away whenever he wants to (and slaves cannot do that). Nor does Arnold have the right to chain Alex to the hitching post. Unless he is willing to release Alex as soon as he demands to be released.
Real-Life Analogy: Before Curt Flood, baseball players were legally bound to the team that they originally signed with. They might sign only, say, a five year contract, but at the end of the five years, the club could invoke the “reserve clause” and keep the player for one more year. The player could either play for a sixth year (probably for a reduced salary), or he could hold out (not play and try to force the team to raise his salary). In other words, he could not be forced to play (so in that sense he was not a slave). But what if he refused to play for one year; was he then free to sign with another team, or could his original team exercise its rights under the reserve clause and renew his salary a second time? If the latter, the player had only two alternatives: play for the team that had originally signed him, or retire. I am not sure any player ever tried to find out whether these one-year contracts could be renewed indefinitely; the rule was unclear. But once players gained the right to play out their contracts and become free agents, their salaries skyrocketed.
Comments
Post a Comment