The term inalienable rights (or unalienable rights) refers to a theoretical set of individual human rights that by their nature cannot be taken away, violated, or transferred from one person to another. The word theory has many distinct meanings in different fields of Knowledge, depending on their methodologies and the context of discussion. Human rights refers to the "basic Rights and freedoms to which all humans are entitled They are considered more fundamental than alienable rights, such as rights in a specific piece of property.
Inalienable (Individual) Rights are: natural rights to life, liberty, and the pursuit of happiness. They are the most fundamental set of human rights, natural means not-granted nor conditional. They are applicable only to humans, as the basic necessity of their survival.
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Etymology
"Inalienable" (or "unalienable") is a term borrowed from English common law. English law is the legal system of England and Wales, and is the basis of Common law legal systems used in most Commonwealth countriesand the Some property rights were alienable (they could be sold or granted) and some were inalienable (they could only be inherited according to fixed rule). Alienation, in Property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another
History
The idea that certain rights are inalienable was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being. Sharia ( Arabic: ar شريعة) is the body of Islamic Religious law. Fiqh ( Arabic: فقه, fɪqəh is Islamic Jurisprudence. Fiqh is an expansion of the Sharia Islamic law—based directly on the " Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter. Reason involves the ability to think understand and draw Conclusions in an Abstract way as in Human thinking "[1] These ideas may have influenced John Locke's concept of inalienable rights through his attendance of lectures given by Edward Pococke, a professor of Arabic studies. John Locke (29 August 1632 – 28 October 1704 was an English Philosopher. Edward Pococke (1604-1691 was an English Orientalist and biblical scholar This is a sub-article to Religious education, Academic discipline, and Islam. [2]
In 17th-century England, philosopher John Locke discussed natural rights in his work, and identified them as being "life, liberty, and estate (or property)", and argued that such fundamental rights could not be surrendered in the social contract. As a means of recording the passage of Time, the 17th Century was that Century which lasted from 1601 - 1700 in the Gregorian calendar Philosophy is the study of general problems concerning matters such as existence knowledge truth beauty justice validity mind and language John Locke (29 August 1632 – 28 October 1704 was an English Philosopher. These ideas were claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity. George Mason IV ( December 11, 1725 &ndash October 7, 1792) was a United States patriot, statesman and delegate from "[3]
The distinction between alienable and unalienable rights was introduced by Francis Hutcheson in his A System of Moral Philosophy (1755) based on the Reformation principle of the liberty of conscience. Francis Hutcheson ( August 8, 1694 August 8, 1746) was a Philosopher born in Ireland to a family of Scottish The Protestant Reformation was a reform movement in Europe that began in 1517 though its roots lie further back in time One could not in fact give up the capacity for private judgment (e. g. , about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable. " In discussions of social contract theory, "inalienable rights" were said to be those rights that could not be surrendered by citizens to the sovereign. Social contract describes a broad class of republican theories whose subjects are implied agreements by which people form Nations and maintain a Social order Such rights were thought to be natural rights, independent of positive law. Natural rights date back at least to the Roman Empire, and were recognized during medieval times, but in this context are an element of the classical liberalism of the 18th and 19th centuries. Classical Liberal thinkers reasoned that each man is endowed with rights, of which the rights to life, liberty and property were thought to be fundamental. However, they reasoned that in the natural state only the strongest could benefit from their rights. State of nature is a term in Political philosophy used in Social contract theories to describe the hypothetical condition of humanity before the State 's Each individual forms an implicit social contract, ceding his or her rights to the authority to protect his or her right from being abused. Social contract describes a broad class of republican theories whose subjects are implied agreements by which people form Nations and maintain a Social order For this reason, almost all classical liberal thinkers, for example, accepted the death penalty and incarceration as necessary elements of government.
"Jefferson took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important. "[4] In the The 1776 United States Declaration of Independence, Thomas Jefferson famously condensed this to:
- "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights. Year 1776 ( MDCCLXXVI) was a Leap year starting on Monday (link will display the full calendar of the Gregorian calendar (or a The United States Declaration of Independence is a statement adopted by the Continental Congress on July 4 1776 announcing that the thirteen American colonies then Thomas Jefferson (April 13 1743 – July 4 1826 was the third President of the United States (1801–1809 the principal author of the Declaration of Independence The meaning of the word truth extends from Honesty, Good faith, and Sincerity in general to agreement with Fact or Reality In Epistemology (theory of knowledge a self-evident proposition is one that is known to be true by understanding its meaning without proof. The quotation "All men are created equal" is arguably the best-known phrase in any of America 's political documents as the idea it expresses is generally considered A creator deity is a Deity in a Creation myth responsible for the creation of the World (or Universe) . . " This was changed to unalienable by John Adams at the time of printing the Declaration.
In the nineteenth century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U. S. constitution recognized and protected slavery. As a lawyer, future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:
- "The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property. The Chief Justice of the United States is the head of the judicial branch of the government of the United States, and presides over the U Salmon Portland Chase ( January 13, 1808 – May 7, 1873) was an American politician and jurist in the Civil War era John Van Zandt (d 1847 was an Underground Railroad hero He is believed to have been the basis for John Van Trompe a character in Uncle Tom's Cabin. The Fugitive Slave Law or Fugitive Slave Act was passed by the United States Congress on September 18, 1850, as part of the Compromise of "
Many scholars now argue that the Fourteenth Amendment to the Constitution, enacted after the Civil War and the abolition of slavery, wrote the principles of equality and natural rights into the Constitution for the first time. However, it can also been argued that the axiom of inalienable rights was written into the Bill of Rights as the Ninth Amendment rights “retained by the people”.
Freeborn rights
An alternative argument claims that the idea of inalienable rights is derived from the freeborn rights claimed by the Englishman John Lilburne in his conflict with both the monarchy of King Charles I and the military dictatorship of the republic governed by Oliver Cromwell. A right is a legal or moral Entitlement or Permission. Rights are of vital importance in theories of Justice and deontological ethics England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland John Lilburne (1614&ndash 29 August 1657) also known as Freeborn John, was an agitator in England before during and after the Charles I, (19 November 1600 &ndash 30 January 1649 was King of England, Scotland and Ireland from 27 March 1625 until his execution. Oliver Cromwell (25 April 1599 Old Style &ndash 3 September 1658 Old Style) was an English military and political leader best known Lilburne (known as Freeborn John) defined freeborn rights as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.
Liberty
Liberty is divided into four types : natural, personal, civil and political. The first two are inalienable, the latter two are government granted. Natural liberty is absolute freedom, limited only by the laws of nature. It is exercised upon one's private property or upon unclaimed property (anywhere else would be a trespass). Personal liberty is the right of locomotion, the freedom to travel upon public roads and waterways; limited only by the requirement to not infringe another's right to travel. Civil liberty is the permission from government to do that which would otherwise be a trespass, a tort or not allowed by law. A license to practice medicine is an example of a civil liberty (inflict injury without criminal liability). Political liberty is the permission to vote and hold office. In countries with socialist / communist governments that abolish private property rights, natural and personal liberty do not exist. Permission (license) is required for most activities and actions.
Rights based on de facto inalienable capacities
One golden thread of argument was developed in the anti-slavery and democratic movements. It dates back to the Stoics and descends through the Reformation to the Enlightenment (mostly Scottish and German). Stoicism, a school of Hellenistic philosophy, was founded in Athens by Zeno of Citium in the early third century BC The Age of Enlightenment or The Enlightenment is a term used to describe a phase in Western philosophy and cultural life centered upon the eighteenth century The Stoics held that no one was a slave by their nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca wrote:
It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined. Lucius Annaeus Seneca (often known simply as Seneca, or Seneca the Younger; Σένεκας in Ancient Greek literature (c [5]
The Stoic doctrine that the "inner part cannot be delivered into bondage" [6] re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:
Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. Martin Luther (November 10 1483 February 18 1546 was a German Monk, theologian, university professor Father of Protestantism, and church reformer As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force. [7]
The Scottish Enlightenment in the person of Francis Hutcheson made the de facto inalienability of this liberty of judgment into a theory of inalienable rights. The Scottish Enlightenment was the period in 18th century Scotland characterised by an outpouring of intellectual and scientific accomplishments Francis Hutcheson was the name of a famous father and son Francis Hutcheson (philosopher (1694-1746 Francis Hutcheson (songwriter (c "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable. " [8] In the German Enlightenment, Hegel gave the most developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. But the same would not apply to those aspects that make one a person, wrote Hegel:
The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them. [9]
The historical sophisticated apologies for slavery and non-democratic governments were based on explicit or implicit voluntary contracts to alienate any "natural rights" to freedom and self-determination. [10] But the de facto inalienability argument provided the basis for the anti-slavery movement to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection (pactum subjectionis) by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in Leviathan by Thomas Hobbes. Thomas Hobbes (born 5 April 1588died 4 December 1679 was an English philosopher, whose famous 1651 book Leviathan established the foundation According to Ernst Cassirer,
There is, at least, one right that cannot be ceded or abandoned: the right to personality…They charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his personality he would cease being a moral being. … There is no pactum subjectionis, no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity. [11]
These themes converged in the debate about American Independence. While Jefferson was writing the Declaration of Independence, Richard Price in England sided with the Americans' claim "that Great Britain is attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title. Richard Price ( February 23, 1723 &ndash April 19, 1791) was a Welsh moral and political philosopher " [12] Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause. [13] Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:
Neither can any state acquire such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property. [14]
Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the de facto basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess. " [15] In Intellectual Origins of American Radicalism, Staughton Lynd pulled together these themes and related them to the slavery debate:
Then it turned out to make considerable difference whether one said slavery was wrong because every man has a natural right to the possession of his own body, or because every man has a natural right freely to determine his own destiny. Staughton Lynd (born November 22, 1929) is an American Conscientious objector, peace activist and civil The first kind of right was alienable: thus Locke neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who might lawfully have killed him; and thus Dred Scott was judged permanently to have given up his freedom. But the second kind of right, what Price called "that power of self-determination which all agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for religious truth from which it was derived, self-determination was not a claim to ownership which might be both acquired and surrendered, but an inextricable aspect of the activity of being human. [16]
Applications in international law
Many documents now echo the phrase used in the United States Declaration of Independence. The United States Declaration of Independence is a statement adopted by the Continental Congress on July 4 1776 announcing that the thirteen American colonies then The preamble to the 1948 Universal Declaration of Human Rights asserts that rights are inalienable: "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. The Universal Declaration of Human Rights ( UDHR) is a declaration adopted by the United Nations General Assembly ( 10 December 1948 at Palais " However, of course, there is dispute which "rights" are truly natural rights and which are not.
Criticism
The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Jeremy Bentham ( IPA: or) (15 February 1748&ndash6 June 1832 was an English Jurist, Philosopher, and legal and Social reformer Edmund Burke ( 12 January, 1729 9 July, 1797) was an Irish statesman author orator Political theorist, and Bentham and Burke, writing in the eighteenth century, claimed that rights arise from the actions of government, or evolve from tradition, and that neither of these can provide anything inalienable. (See Bentham's "Critique of the Doctrine of Inalienable, Natural Rights", and Burke's "Reflections on the Revolution in France"). Reflections on the Revolution in France (1790 by Edmund Burke, is one of the best-known intellectual attacks against the (then-infant French Revolution Keeping with shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts".
The signers of the Declaration of Independence deemed it a "self evident truth" that all men are "endowed by their Creator with certain unalienable Rights". Critics, however, could argue that use of the word "Creator" signifies that these rights are based on theological principles, and might question which theological principles those are, or why those theological principles should be accepted by people who do not adhere to the religion from which they are derived. Theology is the study of a god or the gods from a religious perspective
Derivation of inalienable rights from Natural Law can also be criticized on solely philosophical grounds. Natural law or the law of nature ( Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by Nature and that The is-ought problem of David Hume is the fallacy of deriving normative propositions (how the world ought to be) from naturalistic ones (how the world is) without providing the necessary justification for such a logical jump. In Meta-ethics, the is-ought problem was raised by David Hume ( Scottish Philosopher and Historian, 1711 &ndash David Hume (26 April 1711 25 August 1776 Scottish Philosopher, Economist, and Historian is an important figure in Western philosophy Jonathan Wallace claims in his paper "Natural Rights Don't Exist,"[17] that the phrase "We hold these truths to be self-evident" is simply a "more elegant version of 'Because we said so. '"
In "The Social Contract," Jean-Jacques Rousseau claims that the existence of inalienable rights is unnecessary for the existence of a constitution or a set of laws and rights. The Social Contract Or Principles of Political Right (1762 by Jean-Jacques Rousseau, is the book in which Rousseau theorized about Social contracts A constitution is a system for government often Codified as a written document that establishes the rules and principles of an autonomous political entity This idea of a social contract – that rights and responsibilities are derived from a consensual contract between the government and the people – is the most widely recognized alternative. Social contract describes a broad class of republican theories whose subjects are implied agreements by which people form Nations and maintain a Social order
Samuel P. Huntington, an American political scientist, wrote that the "inalienable rights" argument from the Declaration of Independence was necessary because "The British were white, Anglo, and Protestant, just as we were. Samuel Phillips Huntington (born April 18, 1927) is an American political scientist who gained prominence through his " Clash of Civilizations This is a list of notable political scientists See the List of political theorists for those who study politics without using the Scientific method. They had to have some other basis on which to justify independence".
Notes
- ^ Judge Weeramantry, Christopher G. (1997), Justice Without Frontiers, Brill Publishers, pp. Founded in 1683 in Leiden, The Netherlands, Brill (known as E 8, 132, 135, ISBN 9041102418
- ^ Judge Weeramantry, Christopher G. (1997), Justice Without Frontiers, Brill Publishers, pp. Founded in 1683 in Leiden, The Netherlands, Brill (known as E 8, 135, 139-40, ISBN 9041102418
- ^ Pauline Maier,American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf, 1993, p. 134.
- ^ Garry Wills, 1979. Inventing America. New York: Vintage Books, p. 213
- ^ Seneca, De beneficiis, III, 20.
- ^ Davis, David Brion. The Problem of Slavery in Western Culture. Cornell University Press, 1966, p. 77.
- ^ Martin Luther, Concerning Secular Authority, 1523.
- ^ Hutcheson, Francis. A System of Moral Philosophy. London, 1755, pp. 261-2.
- ^ Georg W. F. Hegel, Hegel's Philosophy of Right, T. M. Knox, trans. , New York: Oxford University Press, 1967 (1821), section 66.
- ^ Philmore, J. 1982. The Libertarian Case for Slavery: A Note on Nozick. Philosophical Forum. XIV (Fall 1982): 43-58.
- ^ Cassirer, Ernst. The Myth of the State. Yale University Press, 1963, p. 175
- ^ Price, Richard. Observations on the Nature of Civil Liberty. 1776, Part I. Reprinted in: Peach, Bernard, (Ed. ) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press, 1979, p. 67.
- ^ Ibid. , pp. 67-68.
- ^ Ibid. , pp. 78-79
- ^ Price, Richard. Additional Observations on the Nature and Value of Civil Liberty. Reprinted in: Peach, Bernard, (Ed. ) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press, 1979, p. 136.
- ^ Lynd, Staughton. Intellectual Origins of American Radicalism. Vintage Books, 1969, pp. 56-57.
- ^ Natural Rights Don't Exist
References
- Hutcheson, Francis. A System of Moral Philosophy. 1755, London.
- Locke, John. Two Treatises on Government. 1690 (primarily the second treatise)
- Lloyd Thomas, D. A. Locke on Government. 1995, Routledge. ISBN 0-415-09533-6
- Waldron, Jeremy [ed. ] Theories of Rights 1984, Oxford University Press. ISBN 0-19-875063-3
External links
- “Natural and Inalienable Right to Freedom” Slaves Petition for Freedom to the Massachusetts Legislature, 1777.
- Unalienable definitions, citations
- Unalienable Rights - from God
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