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.
What about in a technically perfect lex talionis justice system in which each person would receive exactly the punishment deserved - if X raped Y, then X would also be raped? While not very enlightened, it cannot be said to be unfair. It might be objectionable for many reasons, but not for lack of fairness. In such a system, there would be no inalienable right not to get raped, and there is no purely logical reason why such a right should be recognized. X rapes, X gets raped.
Get out the popcorn and beer, folks, and stayed turned for two attorneys to present the cases. So for, T., has the distinct edge.
From a practical standpoint, the only rights which can truly be considered inalienable are those which the individual himself has the power to defend. Might makes rights.
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.
If you wish to retain the term “inalienability” of a right as referring to a restriction upon the individual’s competence for self-deprivation of rights (i.e, that the individual’s consent is an invalid/insufficient ground for a proper transfer of (some) of his rights), I won’t quibble on that.
With “quibble”, I do NOT mean that I can retain my original argument as it stands, as if how we define a word does not impinge on the validity of the argument. Rather, with “quibble”, I mean that I am not going to trumpet “my” definition/understanding of the word “inalienability” against your definition. I am perfectly willing to regard my argument with respect to the (hypothetical?) set of inalienable rights to be invalid, even though I think I can re-phrase it into a valid argument for another (as yet unspecified) set of rights (after all, I did not originally use the word “inalienable” in the sense you specified). I’ll do that in another post, if we reach a common understanding of the term “inalienable”.
If we DO keep that technical sense of the word, however, (the classical case being that selling oneself as a slave is an invalid transfer of liberty rights), then it by no means follows that external annulment/abrogation of an individual’s inalienable rights is necessarily wrong.
Rather, it follows that insofar as the right is regarded as abrogable/annullable, then only an instance OTHER than the individual has the (necessary) competence to annul his or her inalienable right. (Annulment of a right then to be understood that the contravention of the content of that right might be a morally defensible action.)
For example, it may be acceptable to enslave a person, but NOT (solely) on the ground that the individual consented to it.
Or, assisted suicide is based on a faulty premise, but an execution of a recalcitrant individual might be a perfectly moral thing to do. Are we agreed upon the sense of which we should use the word “inalienable” now?
(by the way, insofar as we agree upon your understanding of the term “inalienable”, then I cerainly acknowledge your later argument against the “not to be raped”-case to be valid)