The concept of “inalienable rights” is often flung about without much problematization of the supposed inalienability of such a right.
Strictly speaking, a right can only be considered inalienable (rather than alienable) if one asserts that actions contrary to the content of the right are ALWAYS unjustified transgressions, i.e, that there never exist situations in which it would be morally correct/mandatory to set aside that right, i.e, alienate the individual from that right.
Is “freedom of movement”, called an inalienable right, as said in the UN charter?
If that were the case, it would be wrong to imprison criminals.
Is “life” an inalienable right?
In that case, it would be wrong to kill an assailant upon your own life (that the assailant himself is recognized as having broken YOUR inalienable right, does NOT suddenly make his inalienable right..alienable.)
As I see it, the necessary (if not sufficient) condition for conferring inalienability to some particular right must be that it would never be necessary to set aside that right in order to uphold other rights (those being either themselves alienable or inalienable).
Thus, using this condition, numerous so-called inalienable rights are shown to be, at most, alienable. (Two are already mentioned).
To give an example of a right that I do, indeed, think IS inalienable, it is the right not to be raped. I can see no instances in which it is necessary to rape an individual in order to protect other rights, and thus, I hesitantly declare this right not to be raped to be an inalienable right of man (and woman).
Considered from a non-theistic viewpoint, “inalienable rights” are whatever a particular group of people decide that they are. There are no rights “out there” waiting to be discovered. Each society, government, group, club, etc., decides what fundamental rights it wants to acknowledge. These rights then exist until someone stronger comes along and takes them away. Ultimately, rights grow out of social contract, and are enforced either by courts or the barrel of a gun.
The American colonists decided that they had the inalienable rights of life, liberty and the pursuit of happiness, and wrote them up in a document. Those rights did not become meaningful until they defeated Britain in war. Britain apparently did not agree on the same inalienable rights that the colonists claimed.
Considered from a non-theistic viewpoint, “inalienable rights” are whatever a particular group of people decide that they are. There are no rights “out there” waiting to be discovered. Each society, government, group, club, etc., decides what fundamental rights it wants to acknowledge. These rights then exist until someone stronger comes along and takes them away. Ultimately, rights grow out of social contract, and are enforced either by courts or the barrel of a gun.
The American colonists decided that they had the inalienable rights of life, liberty and the pursuit of happiness, and wrote them up in a document. Those rights did not become meaningful until they defeated Britain in war. Britain apparently did not agree on the same inalienable rights that the colonists claimed.
Well, Americans do not recognize that life is an inalienable right, nor would it be a sensible thing to do.
As for your historical relativism “argument”, it is hardly an argument at all.
The necessary condition I set up was one that is based on concerns of logic, namely IF we are to assign “inalienability” to some set of rights, then it is meaningless to assign inalienability to rights that it will be necessary to set aside in the protection of other rights.
Note that this is a purely formal criterion, unburdened with historical contingencies.
It does, however, have some important consequences:
It means, for example, that rights that can self-conflict, for example in a struggle for life, such rights cannot be regarded as inalienable.
Note that my “not to be raped”-right cannot self-conflict in this manner:
Suppose man A is trying to rape man B.
Will it ever occur that the only way in which man B can avoid being raped is by raping A first?
Hardly, because if B is in a position to actually rape A, he would also be in a position to give A a punch in his face, or for that matter, to kill him. The option to rape A is never a necessary act for B in order to save himself from being raped.
Therefore, we may say that A retains his right not to be raped, even if he violates B’s right to avoid the same fate..
If both A and B are trying to rape each other, BOTH are to be condemned as trying to violate the right of the other.
Note that numerous life-and-death struggles cannot be regarded as “equally guilty” situations.
(thus, the right to life can only be an alienable right, not an inalienable one)
Note that numerous life-and-death struggles cannot be regarded as “equally guilty” situations.
(thus, the right to life can only be an alienable right, not an inalienable one)
What happens if A is forced to choose between raping B or losing his own life? I have read accounts where a person was forced to rape another, and did so out of fear of losing his own life.
Another interesting consequence of this, is that the set of “highest rights/most cherished rights” should NOT be regarded as co-terminous with the set of “inalienable rights”.
Many would “choose” to be raped, rather than be killed if faced only with those two alternatives.
Similarly, breaches of inalienable rights may well juridically be regarded as less serious than breaches on alienable rights.
There isn’t really anything paradoxical about this..
Note that numerous life-and-death struggles cannot be regarded as “equally guilty” situations.
(thus, the right to life can only be an alienable right, not an inalienable one)
What happens if A is forced to choose between raping B or losing his own life? I have read accounts where a person was forced to rape another, and did so out of fear of losing his own life.
A very good question!
This leads us into the extremely intricate web into what responsibility is to be assigned to a forced person to inflict damage on an innocent third party.
What is clear, however, is that the the innocent third party has not at all lost his right not to be raped, just because the one raping him can be said to have been forced to commit that rape. (Agreed?)
Thus, his/her right has NOT been set aside, in the sense that raping him or her becomes morally admissible.
How guilt for that crime is to be divided between the coercer and coerced is extremely difficult, but not really relevant in this discussion.
As Sal pointed out, “rights” are what some society agrees they are, and/or what can be protected at the point of a gun. Even so, none of them are unqualified, all are constrained by other “rigfts” and social realities. What we have in most western countries, as practiced, are certainly a threat to some other cultures if exported.
As Sal pointed out, “rights” are what some society agrees they are, and/or what can be protected at the point of a gun. Even so, none of them are unqualified, all are constrained by other “rigfts” and social realities. What we have in most western countries, as practiced, are certainly a threat to some other cultures if exported.
Dennis
Hmm.. and what does the trivial fact that rights are socially constituted make them any less real? That’s basically just to quibble over the meaning of “existence”.
However, again:
I was interested in the formal query:
INSOFAR as we do not dismiss the concept of “inalienable rights” as something meaningless, what constraints upon that concept must be laid in order that we may get a logically coherent moral system that includes, among other things, some set of rights regarded as “inalienable”?
Of course “rights” as socially defined, constituted and enforced or protected are real, within that context. In a different society and/or era, they are “real.” Even posited “universal human rights,” have constraints provided by the very society that so claims them?
Sorry, I may be missing your point here, so apologies if so.
The concept of alienability derives from property law, and simply denotes that a right, such as the right to possess certain lands, can be freely transfered to another. This was a departure from previous feudal property relations.
To understand the nature of alienation of a right from surrender under duress of a right, consider title to an automobile, which gives the holder the right to both possession and ownership of the car. The owner can alienate the right of possession by renting out the car or lending it out, or alienate all right and title to the car by selling it.
If someone puts a gun in the owners face, and carjacks the car, no alienation of rights has occurred. The carjacker possesses the car in derogation of the owner or lawful possessors rights.
If the owner of a car is subject to a money judgment for an unrelated matter, and the court orders his car seized and sold to pay the judgment, that seizure does not amount to an alienation of title in the way we are using the term.
So alienation isn’t the problem. The real problem is, what does anyone mean by “liberty?” Is it merely the right to be bought and sold daily in the labor market? A right which is dependent on the severance of serf from the estate—the alienation of the serf from the estate if you will.
That’s the issue, the definition(s) of a right such as “liberty” One person’s definition might be to another unwarranted licence, anarchy or heresy, same with a culture. What we do here on this forum would get us killed in some cultures. What they may do freely there, might get them imprisoned here.
