Inalienable

Inalienable in United States

Inalienable Definition

A word denoting the condition of those things the property in which cannot be lawfully transferred from one person to another. Public highways and rivers are inalienable. There are also many rights which are inalienable, as the rights of liberty or of speech. [1]

Inalienable Rights

Defining Inalienable Rights

The distinction between alienable and inalienable rights has been widely discussed in recent years. 24 To characterize a right as inalienable is to claim that the consent of the right-holder is insufficient to extinguish the right or to transfer it to another.

“That which is inalienable . . . is not transferable to the ownership of another. So an inalienable right is one that may never be waived or transferred by its possessor. . . . Thus what is proscribed by inalienable rights are certain relationships or agreements.” (Terrance McConnell, “The Nature and Basis of Inalienable Rights,” Law and Philosophy, vol. 3 (1984), P. 43)

Such a claim must be distinguished from a claim that a right is forfeitable. “A person who has forfeited a right has lost the right because of some offence or wrongdoing. 26 It has been noted that one who wishes to extinguish or convey an inalienable right may do so by committing the appropriate wrongful act and thereby forfeiting it. But notwithstanding the “consensual” nature of such an action, it is the wrongfulness of the rightholder’s act and not the consent that justifies the conclusion that an inalienable right has been foreited.

When a person has forfeited a right, others are permitted to treat him in a way that would otherwise be inappropriate simply because of his wrong actions. But when a right has been waived, others are permitted to behave in an otherwise unacceptable manner simply because of the consent of the original possessor. (Terrance McConnell, “The Nature and Basis of Inalienable Rights,” Law and Philosophy, vol. 3 (1984), P. 28)

Four Reasons for Inalienability

There are several reasons why consent might be insufficient to extinguish or transfer certain rights. First, the nature of individual rights might rule out the alienation of certain of these rights. It is usually maintained than an important part of what having a right entails is that others have a duty to refrain from violating that right. But if a person must respect the rights of others, then that person may not be able to alienate the rights he possesses that provide the means by which he is able to respect the rights of others. (…)

The validity of the first consequence is undermined by the moral principle that “ought implies can” If a person has a duty to respect the rights of another, then a person also has a right to do so. As long as the duty exists, the right must also exist, so the right to so act may not be transferred to another by consent. There would appear to be something morally defective about a theory that failed to hold a competent person responsible for his actions simply because that person had consented to shift responsibility to another.

The validity of the second consequence is undermined by the “compossibility” requirement of a coherent theory of rights. That is, for logical and functional reasons, a system of rights may not recognize two conflicting rights as valid. See Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), p. 199 (“Individual rights are co-possible; each person may exercise his rights as he chooses.”); Hillel Steiner, “The Structure of a Set of Compossible Rights, Journal of Philosophy, vol. 74 (1977), pp. 767-775 (arguing that compossibility is a logical requirement of a system of rights); Barnett, “Pursuing Justice” p. 58 (adding functional concerns to Steiner’s logical analysis). One of the alleged rights here cannot be valid, and the conflict may be resolved. (…)

The first reason for inalienability shows that the claimed distinction between alienable and inalienable rights is a plausible one. However, any agreement to obey the lawful (or rights-respecting) orders of another would survive the analysis thus far presented. Another reason why some rights might be inalienable would be the literal impossibility of the commitments that certain rights transfers entail. This second reason for inalienability would have far more sweeping consequences than the first.

If rights are enforceable claims to control resources in the world and contracts are enforceable transfers of these rights, it is reasonable to conclude that a right to control a resource cannot be transferred where the control of the resource itself cannot in fact be transferred. (…)

This distinction between alienable and inalienable, transferable and nontransferable rights corresponds to the distinction recognized in civil law countries between contracts “to give” and contracts “to do.” See Barry Nicholas, French Law of Contract (London: Butterworth & Co., 1982), p. 149 (the French Code “adopts the traditional classification into (a) donner, (b) faire ou ne pasfaire. It is important to note that donner in the technical legal sense means neither to make a gift nor to deliver (livrer), but to convey, to pass ownership or some other real right.”); Guenter H. Treitel, “Remedies for Breach of Contract,” Arthur von Mehren, ed., International Encyclopedia Of Comparative Law (Paris: J. C. B. Mohr, 1976), vol. 7, p. 13 (in French law, the ‘obligation to do or not to do is contrasted . . . with the obligation de donner or to transfer property’).

The former transfer a right to control external resources. The latter call for some future act involving the use of one’s person. Surely, the former kind of transfer is possible. N”at is my house or car could equally well be your house and car. But bodies are different from other kinds of things. What is my body cannot in any literal sense be made your body. Because there is no obstacle to transferring control of a house or car (of the sort that is unavoidably presented when one attempts to transfer control over one’s body), there is no obstacle to transferring the right to control a house or car. Transferring ownership in animals may be seen as presenting a special difficulty. Cannot animals refuse the orders of the new master? But the problem of control here is less than meets the eye. The second owner gets no more control and hence no more rights than those held by the original owner. Suppose the promisor attempted to transfer the fight to a horse that would cuddle up with you in bed. Unless the first owner actually possessed such a horse, the eight to this kind of horse could not pass. While the failure to tender this kind of horse would not alone constitute a breach of contract, the possibility of an action for fraud or breach of warranty remains. In contrast, the issue of inalienable human rights concerns the rights an individual retains despite the fact that consent to transfer these rights may have been expressed. Therefore, the truly analogous problem with animals is whether or not sentient animals themselves have rights- inalienable or otherwise- in the first place, an issue that is well beyond the scope of this work.

But if control cannot be transferred, then it is hard to see how a right to control can be transferred. It will not do to argue that such a fight to control is transferable because a putative master can obtain legal enforcement of the agreement. Such a claim would be a non sequitur in an entitlement theory. According to entitlements theories, we do not have rights because our claims are in fact enforced- the view of legal positivism- but, rather, our claims ought to be enforced only because we can demonstrate that we have rights. Nor would a claim for damages for breach of a contract to perform services in the future necessarily entail that a right to the services themselves had been alienated. Rather, as will be discussed below, such a claim could be as well accounted for by saying that it is the right to the money- an indisputably alienable right- that had been transferred (conditioned on the nonperformance of the services). (…)

The implications of this analysis may appear far-reaching. But the analysis just presented is not as far-reaching as some might at first imagine. It neither stems from nor supports a view that the only rights we have are those which we are able to assert – that ‘might makes right.” The analysis of inalienability in the text claims only to describe a feature of those rights which we (arguably) have: some of these rights may be alienated or transferred, others of them may not. What rights we have and how we come to have them is another story requiring additional analysis.

The legitimacy of all commitments to perform personal services in the future has been undercut. When a promisor who has promised to perform services in the future refuses to perform, because no right to performance has been transferred to the promisee by the promise, no right of the promisee is violated by nonperformance. But, as will be considered below, the actual consequence of such an analysis is only to limit relief for nonperformance of personal service commitments to money damages. (…)

Rights may not only arise from duties one has to respect the rights of others; they may also arise from duties owed to oneself. Suppose that it could be shown that one has a moral duty to live a good life or to pursue happiness. Such a duty may imply that it would be wrong for others to interfere with such actions, which would mean that we would have rights to be free from such interference. Would not such a claim also imply that some of these rights may not be transferred to another by consent? For example, the rights we have to acquire and then use resources in the world are essential to carrying out such duties to oneself and for this reason would be inalienable. Therefore, an agreement to transfer rights to all present and future acquired external possessions would be an unenforceable attempt to transfer an inalienable right. Such a principle would provide a property rights basis for some limited form of “bankruptcy” laws. See Lawrence H. White, ‘Bankruptcy as an Economic Intervention,” Journal of Libertarian Studies, vol. 1 (1977), P. 287, note 27 (“Perhaps some distinction among the debtor’s assets in terms of alienability can be made according to a standard of subsistence………”).

Further, a person’s consensual commitment to always obey all the commands of another (or all those commands which are lawful) might be unenforceable because it is never the case that such a commitment is conducive to the pursuit of a good life. This would be true if the good life is a “do-it-youself job”; 45 i.e., even if one is doing “all the right things,” one’s life is truly impoverished if one is not freely choosing to do the right things. If this is true, one may never alienate the right to make all choices about one’s actions- that is, slavery- because doing so will always be an inferior moral choice. See John Stuart Mill, On Liberty (Indianapolis: Library of Liberal Arts, 1956), p. 125 (A person, “by selling himself for a slave . . . defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself.”).

According to this analysis, while one may freely and rightfully continue to obey the commands of another, what one never loses- no matter what one has consented to- is the right to change one’s mind and begin pursuing the truly moral course of self-directed action. Suppose that a competent, adult person commits herself to giving her heart to a dearly loved one, an action which- unlike the gift of blood- will inevitably result in her death, and that no fraud or duress is used to induce this consent. We might conclude that while the person has no duty to make such a gift – such an act would be termed supererogatory- and, indeed, the gift might be in conflict with the duty that person owes to herself (of course, it also might not), no other person would have the right to interavene and prevent such a sacrifice from being made.

Suppose, now, that after the commitment has been made, the person making it changes her mind and refuses to go through with the transfer. While a person may be able to transfer control over a heart to another (and arguably may not be prevented from doing so), her never-ending duty to herself prevents her from transferring a right to her heart to another such that she must convey control of the heart even if she changes her mind. The same reasoning applies with equal force to attempts to alienate a right to the future control of the rest of one’s body, since doing so is always inconsistent with the duty that one owes to oneself. In fact, the most salient characteristic of inalienable rights may be that, while rights-holders may exercise their inalienable rights for the benefit of others, a rights-holder may never surrender the right to change her mind about whether to exercise such rights or not. See John Stuart Mill, On Liberty (Indianapolis: Library of Liberal Arts, 1956), p. 125 (“T]here are perhaps no contracts or engagements, except those that relate to money or money’s worth, of which one can venture to say that there ought to be no liberty whatsoever of retraction.”). Extreme situations warranting different treatment can always be hypothesized. For example, may a pilot be forcibly compelled to complete a journey he has contracted to fly and be prevented from parachuting out of a plane? The endangerment involved in the example, however, introduces a tortious element. The better analogy would be to ask whether a pilot who safely lands a plane short of completing a designated route can be compelled to finish the trip.

Anthony Kronman has argued that legal prohibitions of slavery are “paternalist.” But while an argument for inalienable rights might be paternalist, this need not be so. Surely the account just provided is not paternalist.
An argument for inalienable rights is not paternalist simply because advocates of such rights argue that restrictions on (everyone’s) options are, on balance, best (for everyone). First, such a universal argument for inalienable rights denies everyone the same option and therefore does not put advocates into any type of parental stance towards others. Second, all rights – not just inalienable ones – can be advocated on the grounds that individuals be permitted the liberty that rights provide because such liberty is ‘good” for them. See Barnett, ‘Pursuing justice,” pp. 50-72. And any compossible system of rights restricts somebody’s options – one may not act so as to violate the rights of another. If it is not paternalist to advocate these restraints on the ground that they are good or necessary for rights-holders and nonfightsholders alike, then it is not paternalistic to argue in the same manner for restrictions on the alienability of certain of these rights.

No one may rightfully interfere in the consensual sacrificial conduct of a competent adult- as a parent may interfere with a child- simply because the intermeddler knows what is truly best for the individual making the sacrifice. Rather, this argument against the enforceability of agreements to transfer control over one’s body is that the law should not specifically enforce certain commitments when the party who made the original commitment thinks better of it. In assessing a different argument for inalienability than that presented here, Calabresi and Melamed, ‘Property Rules,” p. II 13, make a similar observation: This type of limitation is not in any real sense paternalism. . . . It merely allows the individual to choose what is best in the long run rather than in the short run, even though that choice entails giving up some short run freedom of choice.

An inalienable right does not give others the right to think for a competent adult. Such rights simply define a category of decisions about which competent adults may rightfully override their own previously expressed preferences. Where ex ante consent and ex post consent are the same, there would be no breach of contract. Restrictions on alienability, then, are really rules concerning which of two inconsistent expressions of assent by the same party determines the rights of both parties to an agreement: With alienable rights, ex ante consent transfers rights to control resources and binds the transferor ex post. With inalienable rights, a right to control resources is never transferred by consent, so ex post consent takes precedence over ex ante consent.

A fourth reason why some rights may be inalienable stems from a general skepticism that agreements to transfer rights amounting to the control of one’s destiny would ever (or very often) be obtained in the absence of incompetence, fraud, duress, mistake, or some other recognized contract defense. Assuming that it was theoretically possible to alienate every right (including a right to the future control of one’s person), the failure of any legal system to accurately decide every case, coupled with the extremely high cost of error in evaluating the procedural validity of certain rights-transfer agreements, argues for a blanket prohibition on the transfer of certain kinds of rights. For example, the high cost of erroneously deciding that a slavery contract was truly voluntary could be said to militate against ever permitting the enforcement of such an agreement.

The argument that epistemological uncertainty and the cost of epistemic errors might convert rights that are in point of moral principle alienable into rights that are legally inalienable is an example of indirect consequentialism. Such system concerns can prove to be quite compelling in any serious effort to formulate a legal system that is truly just in its actual operation.

What Rights Are Inalienable?

We cannot conclude on the basis of the four reasons presented here for inalienable rights that all our rights are inalienable. Far from it. The transfer of rights to control external resources is both possible and normally compatible with the duties we owe ourselves and others. Nor could it be fairly argued that the cost of erroneous adjudication of claims to external resources always “exceeds” the benefits of permitting alienation. Except in the most rare and extreme of circumstances, rights to external resources are not inalienable. Other reasons for inalienability of otherwise alienable external property have been suggested, but space constraints prevent me from considering them here. See, e.g., Susan Rose Ackerman, “Inalienability and the Theory of Property Rights,” Columbia Law Review, vol. 85 (1985), pp. 931-969; Epstein, ‘Why Restrain Alienation,” pp. 973-990.

On the other hand, the alienability of rights wholly or partially to control the future use of one’s person has been called into question. The transfer of the right totally to control one’s person may conflict with the duties one has to respect the rights of others. Even if slavery agreements are limited to obeying only those commands which respect the rights of others, the costs of an erroneous decision to enforce such an agreement may create epistemic risks so great that in every case they are deemed to outweigh whatever benefits might accrue from enforcement. Further, the transfer of complete or partial rights of control might inevitably conflict with duties one owes to oneself. Moreover, the transfer of even limited rights of bodily control may be barred in principle by the literal impossibility of transferring control over one’s person.

Thus, we may conclude that (a) rights to possess, use, and control resources external to one’s person are (generally) alienable, and (b) the right to possess, use, and control one’s person is inalienable.

Author: Randy E. Barnett. Copyright (c) 1986 Social Philosophy & Policy

Resources

Notes

1. This definition of Inalienable is based on the The Cyclopedic Law Dictionary .

See Also

Further Reading (Articles)

Assisted Suicide and the Inalienable Right to Life, Issues in Law & Medicine; September 22, 2000; Avila, Daniel

Inalienable Possessions: The Paradox of Keeping-While-Giving., Oceania; September 1, 1993; Clark, Jeffrey;

In our culture, it seems nothing is truly inalienable; Even God is bought with certain ‘offerings’, Telegraph – Herald (Dubuque); March 27, 2004; LYN JERDE

The Question of the Constitutional Case against Suicide: An Historiographical and Originalist Inquiry into the Degree to Which the Theory of the Inalienable Right to Life and Liberty Is Enforced by the Thirteenth Amendment, Issues in Law & Medicine; September 22, 2010; Short, Bradford William

Inalienable Police Power, Encyclopedia of the American Constitution; January 1, 2000

Inalienable Ethnography: Keeping-While-Giving and the Trobriand Case, Journal of the Royal Anthropological Institute; September 1, 2000; Mosko, Mark S.

Mortal Peril: Our Inalienable Right to Health Care?, Michigan Law Review; May 1, 1998; Greaney, Thomas L.

Statement by Bureau of Committee on Exercise of Inalienable Rights of Palestinian People on Formation of Government of National Consensus of State of Palestine, States News Service; June 4, 2014

Declaration sparked a war over one word Founding fathers argued unalienable vs. inalienable rights, Chicago Sun-Times; June 30, 2002; Thomas Hargrove Guido H. Stempel III

Israel to avoid UN meeting in Turkey on ‘inalienable’ rights of Palestinians, Jerusalem Post; May 26, 2010; E.B. SOLOMONT TOVAH LAZAROFF E.B. SOLOMONT and TOVAH LAZAROFF

One land, inalienable, The Kathmandu Post; November 5, 2011

MALAYSIA TO HOST U.N. ASIAN MEETING, CIVIL SOCIETY FORUM IN SUPPORT OF INALIENABLE PALESTINIAN RIGHTS, US Fed News Service, Including US State News; December 13, 2006

Statement by Bureau of Committee on Exercise of Inalienable Rights of Palestinian People on Occasion of Palestinian Prisoners Day, States News Service; April 16, 2013

Bahrain Supports Palestinians’ Inalienable Rights, Bahrain News Agency; March 10, 2014

Philippines : Certification of Inalienable Government-Owned Properties and Assets Sought, Mena Report; September 7, 2013

Forgetting Your Dead: Alienable and Inalienable Objects in Northwest Tanzania, Anthropological Quarterly; October 1, 1997; Weiss, Brad

July Is the Month of Inalienable Rights: Life, Liberty and Payment When Due., Mondaq Business Briefing; July 16, 2010; Dailey, Renee

King sends message to President of UN Committee on Exercise of Inalienable Rights of Palestinians., UMCI News (Potomac Falls, VA); November 27, 2008

STUDENTS SPEAK OUT: Is a college education an inalienable right?, The Washington Post; May 24, 1990

Full text of HM the King’s message to Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People., Agence Maghreb Arabe Presse (MAP); November 29, 2010


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