Are all rights Inalienable?

Please excuse me. I am new to this forum. I am very interested in this concept and I have studied the law -- mostly in the prison law library where I worked as an inmate but also as a paralegal working for attorneys.

Many of the constitutions of the States of the United States of America use this word, as does the Constitution of the United States itself, and often it is used in conjunction with, or in place of, the word, inherent. It has been my understanding that this concept merely states that one's existence as a human being (whether by divine creation or some other mechanism) confers this right upon the individual -- all individuals -- as opposed to any government. That is to say, by virtue of my existence alone, I have the right to my life, my liberty, and my property. This is the context of the phrase, inalienable rights.

Post 61

Monday, February 16, 2009 - 2:32pm

Jordan:

Three comments:

First, I'm not sure which terms an owner needs to articulate for them to be enforceable under Objectivism. He can't articulate every term. It would take forever, especially when it comes to negative terms (e.g., "don't do this, that, and the other"). Perhaps there should just be standing order presuming good will and that all rights will be reserved, and any deviation from this standing order (i.e., an owner's requests for the visitor to waive some rights) will the owner to say so explicitly, particularly where his terms are "unusual" or not commonly expected.

You keep saying the visitor waives his rights. No he doesn't, he agrees to abide by the conditions set forth by the owner to dispose of his property. That is not waiving rights, that is adhering to them.

Jordan asking what obligations an owner has to trespassers:

Third, I'm not sure how this applies to trespassers. The owner doesn't have the same chance to lay out the terms for the trespasser. Is the trespasser presumed to have accepted these terms, no matter how nutty?

The trespasser entered the land without the owner's consent. The fact is the act of trespassing was an initiation of force, so there are no contractual obligations to the trespasser from the owner, either implied or explicit. You can't have a contract unless both parties gave consent. Did the owner give consent to the trespasser to trespass? Of course not. Just try to think these through for a moment. The owner is entitled to use retaliatory force or a third party entrusted to use retaliatory force (the police for example) against the trespasser but the retaliatory force must be used in a proportional manner. If it is disproportionate, it then becomes an initiation of force.
(Edited by John Armaos on 2/16, 2:34pm)

Post 62

Tuesday, February 17, 2009 - 4:45am

Jordan wrote:

I think this goes back to whether an owner should be subject to the attractive nuisance doctrine, etc., under Objectivism. I mean, maybe there're some implied terms that would not be commonly expected by a child. And maybe this obligates the owner to articulate those terms so that a child may voluntarily assent to them. And if the terms cannot be articulated, then the child cannot voluntarily accept them, and the owner cannot appeal to such terms to escape liability for such mishaps that befall the child.

No. The parents are to blame for letting their child trespass onto the land of others. End of story.

Parents, keep your kids on a short leash.

Post 63

Tuesday, February 17, 2009 - 5:04am

Welcome to the forum, Mr. Reed.

I do believe the term inherent is better than inalienable. The latter goes against the fact that rights can be violated and even morally taken away or restricted in the case of a criminal.

Post 64

Tuesday, February 17, 2009 - 5:05am

Arguing with Jordan can feel like arguing with a !$%#-ing legal positivist sometimes.

Ed
[just reporting]

Post 65

Tuesday, February 17, 2009 - 5:07am

Merlin,

We don't ever take away individual rights (we don't have the metaphysical power to give, or to take away, individual rights) -- though we do restrict the exercise of them.

Ed

Post 66

Tuesday, February 17, 2009 - 5:30am

Ed,

You got me on "we" if it means you and me. :-) However, if the state executes a criminal, e.g. a mass murderer, I view that as taking away his right to life, not simply restricting it.

Post 67

Tuesday, February 17, 2009 - 10:05am

Merlin,

You got me on "executions."

:-)

There doesn't seem to be a way of reconciling "rights inalienability" with capital punishment. However, if everyone involved can just agree that when we execute folks that we're then operating in a "moral-free" zone -- or some kind of relevant change of context -- then we can avoid the contradiction which capital punishment imposes on the issue of individual rights.

We would have to discover a means to show how executing folks is categorically different from -- or insulated from -- us living well on earth.

Individual rights are right because they're what we each need to live well on earth -- and such real or "natural" needs aren't ever morally wrong. Natural wants can be wrong, but not natural needs (that'd be like saying it's wrong for a fish to be in water). Now, if psychopaths/sociopaths had lost what it takes to be "human" -- we could end them without apology. A moral debate wouldn't be required (because morality only applies to humans) ...

It's a bugaboo, though.

Ed
(Edited by Ed Thompson on 2/17, 10:09am)

Post 68

Tuesday, February 17, 2009 - 10:25am

I like Ed's language in post #65. Individual rights start as metaphysical conditions necessary for human existence - as properties of human nature. For that reason they cannot be taken away or given (en mass or on an individual basis). They can be violated, people or governments can interfere with them, and a person can choose to waive his exercise of them in specific instances, but they can't be taken away.

With the execution of a convicted murderer, we don't take away his right to live. We do take his life, but the right to that life was given up when the murderer chose to commit the crime. He implicitly waived his right. He could not violate the right to another's life without also waiving his claim to the very right he was violating. The Old Testament's eye for an eye turns out to have a logically foundation :-)

(Edited by Steve Wolfer on 2/17, 10:31am)

(Edited by Steve Wolfer on 2/17, 10:32am)

Post 69

Tuesday, February 17, 2009 - 11:11am

Ed and Steve,

Thanks for your explanations. I understand your position, but taking away from or restricting human nature, an abstraction, seems to me an impossible thing to do. On the other hand, doing such things to an individual is possible.

Back to post #63, here are two definitions from the Merriam-Webster Online Dictionary.
inalienable - incapable of being alienated, surrendered, or transferred
inherent -- involved in the constitution or essential character of something, belonging by nature or habit

Which definiens better captures what you guys are saying?

Post 70

Tuesday, February 17, 2009 - 12:49pm

'Inalienable' refers to changing something (or more precisely, that it can't be changed).

'Inherent' refers to it being a property of something.

One could say, "Individual rights are inalienable, that is they can not be revoked. This is so because they are inherent in human nature and not made up by governments or their laws."

From that position, I say that no one can take away an individual's rights. They are inalienable. And you can not take them away for the reason that Merlin stated, you can't take away from human nature. What can happen is that an individual has the right to waive a right (voluntarily agree to waive the exercise of a right). He can do that explicitly or implicitly. He can only do that for his personal exercise of the right and not for all of humanity (human nature). And if anyone violates another's rights, it is an automatic, implicit waiving of his own rights to a proportional degree.

(Edited by Steve Wolfer on 2/17, 12:56pm)

Post 71

Tuesday, February 17, 2009 - 1:37pm

John,

You keep saying the visitor waives his rights. No he doesn't, he agrees to abide by the conditions set forth by the owner to dispose of his property. That is not waiving rights, that is adhering to them.

When individuals enter a contract, they give up some rights to get some others. The same goes for when there is an implied contract between owner and visitor. So I maintain that the visitor waives some of her rights under such an implied contract.

Per trespassers, it looks like you've gone with the third option I listed. I think the fourth option might apply as well: the trespasser is subject to an implied contract's terms of which she should reasonably be aware -- like if the owner posts a big sign on his gate saying, "I reserve the right to make you sing and dance and strip upon my command"?

Luke, got it. Just throwing it out there. Kids, stay the hell of Luke's property!

Ed, just imagine how much worse it'd be if I actually were a legal positivist! :-)

Jordan

Post 72

Tuesday, February 17, 2009 - 12:14pm

Rights are anything but inalienable. The Weimar Republic proved it. Rights are the fruit of the iron rule of responsibility. Forget this rule and you lose your "rights". Big fish eat little fish.
There is no such thing as a totally independent individual. If you have a business you work for your customers. If you are a worker you look for a business that needs a hand. If you are an artist you hope people will reward your sense of aesthetics. If you a philosopher you hope people will listen to your concepts. If you are a politician you hope you are informed enough to influence the mass behavior induced by the doxa of the populace.
If rights were inalienable people would have the freedom of choice to live anyway they chose. Unfortunately what one may perceive as a right may have results that are abusive to another.
Our founding fathers chose to used the word inalienable to remind us that by choosing the right citizens to exercise the peoples rights some freedoms would be preserved for the individual so that the process may be perpetuated.

Post 73

Tuesday, February 17, 2009 - 3:58pm

Jordan:

When individuals enter a contract, they give up some rights to get some others. The same goes for when there is an implied contract between owner and visitor. So I maintain that the visitor waives some of her rights under such an implied contract.

Why? Do you think just making an axiomatic statement "you waive rights when you enter a contract" is a compelling argument? Care to explain how it is waiving rights?

Post 74

Tuesday, February 17, 2009 - 4:03pm

Jordan,

Ed, just imagine how much worse it'd be if I actually were a legal positivist! :-)

Jordan

I think I just threw up in my mouth a little.

:-)

Ed

(Edited by Ed Thompson on 2/17, 4:08pm)

Post 75

Tuesday, February 17, 2009 - 4:06pm

Jordan said:

When individuals enter a contract, they give up some rights to get some others.

And this is the key to understanding all of our differences here. The kind of rights of which Jordan speaks ("legal rights"?) are never inalienable. The kind of rights of which some of the rest of us speak (natural, individual rights) are always inalienable.

Ed

p.s. Gahd, using the words "never" and "always" (with such righteous indignation) makes me feel powerful.

:-)

(Edited by Ed Thompson on 2/17, 4:10pm)

Post 76

Tuesday, February 17, 2009 - 4:54pm

John,

Ed is right (savor it, Ed!) that I'm talking about legal rights. I made this clear in post 6. When you contract, you give up doing something to which you otherwise have a legal right in order to get to do something else to which you otherwise would not have a legal right.

Say J.K. Rowling agrees to sell Timmy her book. Rowling has a right to her book -- i.e., others can't interfere with her actions with regard to her book -- until she contracts with Timmy. Then Rowling loses her right to the book. But she gains the right to Timmy's money, a right which she did not have before she contracted. The same situation happens with Timmy. Upon contracting, Timmy loses his right to his money but gains the right to Rowling's book.

Jordan

Post 77

Tuesday, February 17, 2009 - 4:57pm

Jordan,

Ed is right (savor it, Ed!) that I'm talking about legal rights.

Okay, but then the answer to the thread is: no. And all the rest is water under a fabricated bridge.

:-)

Ed

Post 78

Tuesday, February 17, 2009 - 5:08pm

Ok Jordan fine, if you're saying all you meant all along was rights in the legal context, then the rest of your question is just ridiculously stupid. You even describe the characteristics of a contract by describing how property can be transferred from one person to the next through a contract between consenting adults. So why ask the question "The question is: where is border? Can I demand you waive some rights upon entry to my land? Which rights? To what extent?" the obvious answer to that obviously is through the conditions set forth in a contract between consenting adults. As Bill points out:

"You're not aware of conditional interactions and associations? You're not aware of contractual agreements and obligations? These things are not unique to Objectivism."

Post 79

Tuesday, February 17, 2009 - 9:23pm