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 one’s preferences alone, justified in divesting oneself
of 0, and that (B) one is not, on grounds of one’s 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 approach—one
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:
To understand Political Power right, and derive it from its
Original, we must consider what State all [persons] are naturally in, and that is, a State
of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons
as they think fit, within the bounds of the Law of Nature, without asking leave, or
depending upon the Will of any other [person].(1)
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:
(1) to keep people from "invading others' Rights, and from
doing hurt to one another..."(2), and
(2) to preserve the powers "which Parents have over their
Children, to govern them for the Children's good, til they come to the use of Reason, or a
state of Knowledge, wherein they may be supposed capable to understand that Rule, whether
it be the Law of Nature, or the municipal Law of their Country they are to govern
themselves by..."(3)
Punishments for violations of the rights of others are, moreover, very
limited. Locke says,
...every one has the right to punish the transgressors of [the
Law of Nature] to such a Degree, as may hinder its Violation... and thereby preserve the
innocent and restrain offenders(4) and adds that in punishing a
transgressor, the person carrying out the punishment has no Absolute or Arbitrary Power,
to use a Criminal when he has got him in his hands, according to the passionate heats, or
boundless extravagancy of his own Will, but only to retribute to him, so far as calm
reason and conscience dictates, what is proportionate to his Transgression, which is so
much as may serve for Reparation and Restraint. For these two are the only reasons, why
one...may lawfully do harm to another.(5)
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 punishments—punishments 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 law—as 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 good—that 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
t1—namely, 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, punishment—punishment, 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 request—unless
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.
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