Inalienable Rights: A Plea for Open Options
Ruth Miller Lucier
ABSTRACT: Recent analyses of the concept of inalienable rights (i.e., analyses of the inalienable rights to life) transmute these rights into restrictions on the choices of individuals who possess the rights. In this paper I argue that such construals are counter-intuitive, and incompatible with the modern notion of rights as positive benefits to be enjoyed by those who possess them. I offer an alternative (somewhat Lockean) view which proposes that inalienable rights be regarded as entitlements to discretionary options, options the objects of which need not be chosen. To flesh out the theory, such rights (construed as discretionary options) are distinguished from absolute rights, from alienable rights, and from some kinds of indefeasible human rights. I point to several advantages of the open options account of inalienable rights, including the fact that inalienable rights construed as open options are rights that may provide grounds for calling oppressive governments to account, while at the same time protecting areas of freedom which make the possession of the rights worthwhile rather than burdensome. A concluding appeal suggests that the open options view of inalienable rights awaits and encourages the development of theories which bolster modern intuitions concerning the plausibility of affirming individuated, comprehensive, desirable, and universally applicable human rights.
In recent philosophical literature one justification for placing restraints on individuals has been based paradoxically on the notion that those individuals possess basic inalienable rights to liberty and life. It has been argued, for example, that if one has an inalienable right to 0, then there is a duty not to interfere with one's access to 0 (a duty not alleviated by one's preferences alone). It follows that (A) one is not, on grounds of ones preferences alone, justified in divesting oneself of 0, and that (B) one is not, on grounds of ones preferences alone, justified in seeking the aid of others in divesting oneself of 0.
It follows that if Sue and Bill have inalienable rights to life, they have a moral obligation to opt for life and, therefore, are not acting in a morally defensible way if they, on grounds of their preferences alone, attempt to persuade others to assist them in comfortably ending their lives. When the notion of the inalienable right to life is construed in the way indicated above, only persons other than the rightholder may make morally permissible decisions concerning the shortening or prolonging of rightholders' lives. And this is held to be the case even if, for example, Bill's and Sue's lives are, from their own points of view, fruitless, torturous, and simply not worth living.
Most views of inalienable rights that entail either (A) or (B) do say that all rights can be overridden, and so recognize situations in which suicide, euthanasia, restriction of liberty, and deprivation of basic of prerogatives and goods can be justified. But, in these views, the moral justifications for any individual's rejection of the objects of his or her inalienable rights must be derived at least in part from the judgments of others and in this sense the views are strongly parentalistic (or paternalistic). A view of inalienable rights that sees such rights as placing moral restrictions on the options of the rightholders is, however, clearly counter-intuitive.
The purpose of this essay is to offer an alternative approachone which is compatible with our modern notions of rights as consistently desirable entitlements, and more in keeping with our traditional understanding of inalienable rights as safeguards for autonomous choice. The view to be offered reinforces deeply embedded democratic ideals of the sort that have given rise to modern notions of global human rights.
1. Rights and Open Options
The kind of approach I wish to defend is suggested by John Locke at the beginning of The Second Treatise of Government when he asserts:
Consistent with this perspective is the idea that society is justified in imposing some restraints. But, in Locke's view, these must fall within carefully circumscribed areas. According to Locke, restrictions on autonomous action are justified only for these two reasons:
Punishments for violations of the rights of others are, moreover, very limited. Locke says,
Locke suggests here that the criminal's rights do not disappear completely. The criminal's rights are not permanently or completely relinquished. The rights may be transgressed (or over-ridden) only to the extent required to impose appropriate punishmentspunishments that are no more severe than the minimum necessary to facilitate reparation and deter others from committing similar criminal acts.
Following Locke in accepting human autonomy as a fundamentally important value, I would suggest this definition of inalienable rights. Inalienable rights are rights entailed by very basic moral principles which must be respected (except in cases where punishment is morally required or where the temporary suspension of rights is necessary for reason justified by natural lawas in cases where the social order would otherwise be irreparably damaged (viz. in situations of eminent danger, severe shortage or natural disaster)if human beings are to retain their autonomy and pursue options that are beneficial to their individual interests alone. Such inalienable rights cannot be bought or sold, or transferred to a person other than the rightholder, and any exercise of them by others can rightfully occur only with the rightholder's consent.
On this account, inalienable rights would be open options reserved for rightholders, and would apply contextually. An inalienable right would never be a right to possess this or that particular object, but would instead be a right to live and move within a given setting to acquire certain kinds of objects from a wide range of objects of types essential for worthwhile human existence. Thus such rights would have as objects categories of goods and activities that one can never be morally required to relinquish under any but very abnormal conditions, and sometimes then only with one's at least grudging consent. The reason one can never be morally required to relinquish such rights (even though one may be deprived of some of the objects of the rights in the course of being justly punished), is that the quality of a human being's life would otherwise be disvalued. To regard the giving up of inalienable rights as morally obligatory, would amount to rejecting the view that human autonomy is fundamentally goodthat is, good so long as the individual is pursuing goals and activities of the kind which well-meaning, decent, reasonable human beings are naturally inclined to pursue.
2. Distinguishing Inalienable Rights: The Open Options View
Because of the generality of my characterization of inalienable rights, questions concerning (1) the conceptual distinctness of the characterization, and (2) the content of inalienable rights, remain to be answered. Questions of the first sort, those that concern the scope and uniqueness of such rights, are best addressed by showing how inalienable rights would differ from other sorts of rights commonly mentioned in moral theories. An explanatory roster compatible with the view I advocate follows.
(1) Absolute Rights
Absolute rights have been thought to be either (a) rights that can never be overridden, or (b) a prima facie right at t1 that has not been overridden at t1namely, whatever right at t1 is the ultimate, overriding right at t1. In my view, inalienable rights would differ from absolute rights of either description since (a) they can be overridden in extreme cases (for example, in cases where retribution, reparation or emergency measures are required) , and (b) they are not contingent on specific contextual or temporal conditions.
(2) Alienable Rights
I understand alienable rights to be rights that exist due to culturally idiosyncratic laws. They are rights to the use of specific physical objects or rights to act in accordance with a given role within a specific setting (e.g. the right to wear this or that coat, the right to live in a particular house, and the right to chair this or that meeting, or to manage this or that event.) When one does certain things (sells the coat, rents the house, or resigns from the relevant office) such rights may lapse and others may take over the prerogatives that the rights entail.
In the "open options" view, basic inalienable rights would differ from alienable rights with respect to being generally less specific but also with respect to being permanent (rather than being position-attached) rights to a range of opportunities that make possible the acquisition of desired social roles, positions, prerogatives, experiences and material things from among a wide spectrum of such life-enhancing goods. An alienable right (say, the right to occupy a house I buy and then sell) may exist at t1, be lost at 2 and never be repossessed. But an inalienable right (say, to some adequate shelter) will never be lost. Also an alienable right might lapse simply because specific conditions for obtaining its object are not met (e.g. the homestead isn't worked, the class registered for isn't attended, the promised vow isn't taken, earnest money is given but the contract for purchase not signed). In contrast, an inalienable right whose object isn't used by, say, Bill at t1, is always still possessed by Bill at t3 (although access to its object may be temporarily denied as needed for appropriate, legitimate, punishmentpunishment, say, for Bill's gross violation of others' basic rights through murder or theft). Others acting in Bill's behalf may appeal to Bill's basic inalienable rights to justify acquiring the objects of Bill's rights for Bill, but only with at least presumptive evidence of Bill's consent. When the objects of such rights are denied for purposes of just punishment, options to choose the objects resurface once the punishment is complete.
(3) Natural Rights and Human Rights
Natural rights and human rights are posited because of convictions concerning the moral rightness of allowing individuals to fulfill universally acknowledged human needs. Such rights might include rights with very specific objects such as the right to emigrate from South Africa, the right to demonstrate against abortion clinics, or the right to select a particular food that one prefers. Natural rights with specific objects would not be inalienable rights on the definition advocated here, due to their specificity. Rights that would serve as paradigm cases of inalienable rights would, on the "open options" view, be the most indispensable (and, consequently, the most general and abstract) of natural human rights.
(4) Indefeasible Rights
Law dictionaries treat 'inalienable' and 'indefeasible' as possible synonyms. Both 'inalienable rights' and 'indefeasible rights' refer to rights that trump other rights.(6) Joel Feinberg has proposed that we distinguish between inalienable rights and indefeasible rights saying 'indefeasible rights' are rights that are incapable of being annulled or made void, and inalienable rights are rights incapable of being alienated, surrendered or transferred to another.(7) But indefeasible rights are, according to the law dictionaries, only absolute in the way indicated in principle, not in practice. And some inalienable rights might be suspended or transferred with the rightholder's consent, since the definition specifies only that suspension or transfer cannot occur without such consent. Whatever basic indefeasible rights cannot be annulled or made void without an innocent rightholder's consent (while yet remaining rights that can have their objects made temporarily inaccessible due to the commission of a crime, or overridden in emergencies), might also be inalienable rights. In the view now advocated, therefore, some inalienable rights might also be indefeasible.
3. Inalienable Rights and Duties
One consequence of the open option view of inalienable rights that the above distinctions suggest, is that the generality and universality of most inalienable rights, result in cases where such rights impose no very specific duties on others. One's basic inalienable right to pursue happiness, for example, would not impose any specific duty on anyone else to maximize one's happiness or to refrain from interfering with one's pursuit of happiness in this or that particular case. For example, if A's pursuit of happiness is expressed in A's courting of C, B need not refrain from courting C, even if B's courting of C would cut short A's ability to do so. This is because A's right to pursue happiness is not a right to pursue happiness in connection with this or that particular thing, role, or person. Only if a general, long term curtailment of a very wide range of courting activities (or other such basic activities) is launched by B against A, would A's inalienable right to the pursuit of happiness be violated by B.
The "open options" view presumes to safeguard options in a reasonably open and normal situation where there are enough options available to allow each individual to remain occupied in the pursuit of some appropriate life-enhancing option from among a considerable range of options, without blocking the ability of others to do the same. If options should become too limited then some restructuring of the social order would be required to protect individuals' prerogatives to exercise inalienable rights. Such restructuring could take the form of peaceful or violent revolution.
Some inalienable rights, would, on the proposed definition, impose definite correlative duties. One's right to continue one's life, for example, would (unless overridden) impose the specific duty on others not to deliberately deprive one of life so long (but only so long) as one wanted to live. Killing someone who did not want to live, might still be morally wrong; but it would not violate that person's right to life.
4. Concluding Observations
Important advantages accrue from the "open options" view of inalienable rights. First, this account both suggests and limits what the content of inalienable rights might be, and so provides a basis for arguing that certain policies are such that governments may not pursue them without violating universally legitimate rights. For example, in objecting to a governmental measure subjecting innocent citizens to involuntary servitude, it could be pointed out that a person's possession of inalienable rights entails a duty to release that enslaved person upon his or her requestunless the condition of servitude is one in which a very wide range of life-enhancing options is possible (such a wide range that the condition would no longer really be slavery). Similarly, the "open options" view would provide a reason for objecting to a government's arbitrary prohibition of voluntary euthanasia in cases where there was clear evidence that death was strongly desired by the persons asking to be euthanized. For such a policy would and does intrude on an important sphere of personal choice that there is no compelling reason to close.
Second, the "open options" view's critical efficaciousness is not contingent on what in fact a society needs to do (or what those in power in the society think the society needs to do) in order to work efficiently. Once the view is accepted and such rights recognized, even a totalitarian state that found such rights inconvenient, would have to honor them or be judged immoral.
Third, the "open options" view is useful for clarifying the parameters of the right to life in ways that eliminate the need to posit a paradoxically "mandatory" right to life. For a person who possesses the right to life in the sense this view proposes, may opt not to have the object of the right (namely, life of the particular sort available to her or him) without being said to have attempted to alienate her or his right to life. For the options of either seeking to continue one's life or seeking to end one's life remain open to the point of death and are protected from being maliciously closed. Therefore, if Bill or Sue do finally choose not to live, they will not have alienated their rights to life; moreover, anyone who might help those who freely choose to end their lives, to in fact end them, could not in this case be condemned as immoral on grounds that they violated the choosers' inalienable rights to life, for no such violation would have occurred.
An overarching advantage of the "open options" view is that it must be based on, and thus encourages, the fleshing out of theories that specify what counts as a good enough and free enough life to preserve the basic dignity of human beings. Indeed, the perspicaciousness of the "open options" view of inalienable rights must ultimately rest upon the identification and articulation of the parameters of diverse, human-appropriate, entitlements to a range of freedoms rightfully possessed by all of humankind.
1. John Locke, The Second Treatise of Government, in Locke's Two Treatises of Government, ed. Peter Laslett, Cambridge: The University Press, 1960, p. 287.
2. Ibid., p. 289
3. Ibid., p. 399
4. Ibid., p. 289
5. Ibid., p. 290. Locke suggests elsewhere that the fact that we are God's property should also restrain us from killing ourselves. But if this (I believe theologically suspect) premise is rejected, the only moral restraint imposed by the Lockean view on self-inflicted death would stem from the negative effects opting out of life might have on innocent others.
6. See listings for 'Right', 'Indefeasible', 'Inalienable', and 'Inalienable rights', in Black's Law Dictionary (West Publishing Company, 1978) and (West Publishing Company, 1985).
7. See Joel Feinberg, "Voluntary Euthanasia and the Inalienable Right to Life," Philosophy and Public Affairs, Vol. 7, No 2, 1978, p. 113.