Are all rights Inalienable?

Jordan,

Inalienable is used differently under the law than it is with individual rights. The biggest difference is that under the law, inalienable is only until the law changes.

You mention that bodily organs can not be sold. There are two views of this that come to mind. The first is that the law is a prohibition against an action by a person who is otherwise presumed to own his body. Objectivism would see that as the state violating property rights. Also, note that this law is selective. I can give away a kidney, but not sell it. I can sell sperm or a woman can sell eggs. I can be a blood donor for money, I can give away liver parts or bone marrow and anyone can sell their hair and we are all encouraged to sign up as organ donors in case of death.

The second view is that of the buyer. It has been made illegal to buy certain organs, but is this because it is wrong to possess them (the result of a purchase) or because it encourages people to traffic in parts and that might lead to involuntary harvesting? What is the harm being remedied? And how can a law be examined without reference to that? Objectivism wants to know what right was violated such that a law will permit criminal penalty.

There are many, many laws that are not consistent with Objectivism. But your way of approaching this is not very efficient (you have noticed that haven't you :-)

If you give a specific example of a law, then people here can easily point out how Objectivism would approach the law in question to see if it supports or violates individual rights.

Or to work on a broader level, maybe try explaining the principles of legal philosophy that specifically inform Tort law, if that is the area of primary concern, and people can chew on the compatibility of those principles to Objectivist ethics.

Post 81

Wednesday, February 18, 2009 - 7:12am

Granted, I do not possess all the facts or details of this specific case. Nonetheless, my immediate reaction is that the private property owner still got "screwed" to the tune of $78,000 (excluding all his previous, current and future legal fees) which is a far cry from the $32 million the litigants were seeking. And who says crime or in this case trespassing doesn't pay!? (rhetorical question intended)

http://www.washingtontimes.com/news/2009/feb/17/jury-rancher-did-not-violate-mexicans-rights/

~Matt

Post 82

Wednesday, February 18, 2009 - 8:20am

Great segway, Matt!

During Woodstock, tired and starving hippie-liberals invaded homes and ransacked property. Something has got to be done about behavior like that.

:-)

No, seriously, imagine -- in your mind's eye -- if nothing was ever done about behavior like that. Can you see into the future (or the lack of a future for humanity) clearly?

Ed

(Edited by Ed Thompson on 2/18, 8:21am)

Post 83

Wednesday, February 18, 2009 - 12:10pm

Hi Steve,

Yeah, "inalienability" is indeed different in law than in natural rights theory. If you're interested, a very influential essay, which construed legal rights as entitlements, goes into some detail about when "inalienability rules" would be more efficient than "liability rules" or "property rules." It's by Guido Calabresi & Douglas Melamded, Property Rules, Liability Rules and Inalienability: One View of the Cathedral (1972). I can't find an online copy, but you can see some discussion of it here and here.

You point out that we can sell some organs and gift others. Yeah, that was not a good example of an inalienable legal right. Nevertheless, perhaps Objectivism would support the current ban on certain organs sales if it found such sales not to be "mutually advantageous," but I doubt this. I'm not sure if Objectivism would ever find voluntary, mutually agreed to contract to be legally unconscionable so as to be unenforceable.

But your way of approaching this is not very efficient (you have noticed that haven't you :-)

Oh goodness yes. :-( My attempts to give specific examples haven't worked well at all. While laying out tort law principles might take us too far into the abstract, I think it might be worth a go. I'll start a new thread.

Jordan

Post 84

Wednesday, February 18, 2009 - 12:30pm

Jordan,

You said, "I'm not sure if Objectivism would ever find voluntary, mutually agreed to contract to be legally unconscionable so as to be unenforceable."

I'll ignore, the meaning that you intended in your sentence, just a little, to show an aspect of the relationship between ethics and morality.

Those are very different conditions... unconscionable and unenforceable.

Objectivism clearly believes that people have the right to enter into voluntary agreements (excluding only those where a third party's rights would be violated).
But Objectivism would find many examples of contracts unconscionable- that is immoral, yet not a violation of a third party's rights.
Unenforceable would be a legal term - one describing a law that is presumed to support a desired end, but cannot be written in such a way as to make enforcement practical.

So, with Objectivism, law is tied directly to individual rights - exclusively. That is why you can end up with things that are immoral, yet never should be outlawed.

(Edited by Steve Wolfer on 2/19, 1:55am)

Post 85

Wednesday, February 18, 2009 - 12:52pm

Hi Steve,

I agree with your analysis. The following doesn't have much bearing on that analysis, but "unconscionable" is also a legal term. If a court finds a contract unconscionable under the law, it effectively renders that contract legally unenforceable.

Jordan

Post 86

Wednesday, February 18, 2009 - 6:23pm

Jordan, you have confused two very different concepts.

What ought to be...(only philosophy can answer this)

And what is...(a mere recognition of how current legal jurisprudence works, whether it is moral or not)

It would've been nice had you and Ed taken my post #6 seriously. Under current law there are certain legal rights you are not allowed to contract away -- they are legally inalienable -- which means other people cannot contract for them. For an obvious example, we aren't currently allowed to contract away or for one's legal rights to one's bodily organs.

The banning of organ selling is just another example of our government violating our rights. It is immoral to prevent someone from selling their kidney if they so choose to do for example. Not only does it hurt patients on a waiting list for a kidney because of the shortages of kidneys available on the market, but also hurts the organ seller who may desperately need money to maintain their own survival. In short, you should be able to sell your body organs.

Post 87

Wednesday, February 18, 2009 - 7:20pm

John,

I have not confused those two concepts. Show me where you think I have, and I'll show you where you are wrong.

Jordan

Post 88

Wednesday, February 18, 2009 - 11:27pm

Stephen Cox

96� JOURNAL OF LIBERTARIAN STUDIES 19, NO. 4 (FALL2005)

All contractual obligations are limited, of course, by the nature of
contract itself. No contract includes a proviso that neither party shall
ever �inform� on the other, no matter what. That would be equivalent
to saying, �Go ahead, do whatever you like.� You don�t need a con-
tract to say that. Any contract that did say it would, in effect, negate
the significance of any moral consideration except fulfillment of con-
tract, which in that case would be meaningless. We need to recognize,
also, that the absence of an explicit contract makes little or no differ-
ence to the issue of moral obligation. The world runs on contracts,
but the vast majority of them are implicit. If I see one of my students
standing beside the road and offer him a ride, then, once we�re on the
freeway, command him to jump out of the car, I cannot convincingly
argue that it�s my property, after all, and I never explicitly promised
to provide for his safety until he reached a good place to leave. No,
my promise was real, if only implicit, and he wouldn�t have accepted
a ride on any other terms.

Laugh as we may at John Locke�s use of the concept of implicit
contract to cover all the embarrassments of his consent theory of gov-
ernment, implicit contracts are formative to some degree in virtually
every relationship, from the one you establish when you hand the
meat clerk a five dollar bill, expecting to be given a steak in return,
to the one you establish when you marry, thereby creating a relation-
ship the confidential nature of which is sanctioned by law. Law or no
law, private relationships cannot exist without implicit contracts,
many of which include a proviso of confidentiality. You and I simply
cannot be friends if one of us suspects that the other considers him-
self perfectly free to turn the other one in, whenever he decides that
his friend has taken some �evil� course. (I am not disputing the exis-
tence of evil, which is more real than most people think, but only
referring to the problems of using the concept of �evil� in a given
case.) This, I believe, is the foundation of our almost universal con-
viction that confidential loyalty is a virtue, of our frequent inability
to define its proper limits, and of the communists� continuing ability
to arouse sympathetic concern for themselves.

Post 89

Thursday, February 19, 2009 - 4:20am

Jordan wrote:

I have not confused those two concepts. Show me where you think I have, and I'll show you where you are wrong.

You being confused and you confusing others are two different things.

Post 90

Thursday, February 19, 2009 - 7:33am

That's real good stuff, Ted.

[bonk]

Ed

Post 91

Thursday, February 19, 2009 - 10:09am

In Post 23, Jordan quoted Steve Wolfer as follows: "Stepping onto another's land can not take away my right to life (I'm just keeping it simple), not unless I have seriously violated his rights in the way I step onto his land. (No right to violate a right)." And replied:

Why not? What's the Objectivist basis for saying an owner cannot stipulate that he will shoot and kill at will any visitor who enters his land? I'm not seeing one. Sure, it's morally unconscionable, but legally impersisible? On what basis? Regular ol' law has some pretty easy answers to this, but I don't see that Objectivism shares those answers.

Objectivism would say that the owner has a right to treat the visitor any way the owner chooses so long as the visitor consents to be treated that way. So, let's say that the visitor agrees to allow the owner to shoot him once he sets foot on the owner's land (in a bizarre form of assisted suicide). If the owner were to shoot him under those conditions, then his rights would not be violated, since he would have consented to the killing. To be sure, his consent would have to be explicitly validated, so that it was clearly evident to the legal authorities that that is what he had agreed to. Otherwise, the police would have no choice but to arrest the owner for murder, since in the absence of an explicit agreement, the owner would rightly be presumed guilty of murder.

As for the owner's stipulating that he will shoot and kill any visitor who enters his land, the stipulation would have to be clearly recognized and agreed to by any visitor. If it were simply posted on a sign as a warning to trespassers, then the owner's shooting any trespasser he saw would be an excessive use of force disproportionate to the trespasser's violation, and would itself be a violation of the trespasser's rights. In such a case, it could rightly be inferred that, even though the trespasser were disregarding the sign and entering the owner's property unlawfully, the trespasser had not agreed to be shot (unlike the visitor who had agreed to the assisted suicide).

- Bill
(Edited by William Dwyer on 2/19, 10:16am)

Post 92

Thursday, February 19, 2009 - 11:55am

Hi Ted,

Thanks for sharing that. Restructuring tort law under a theory of implied contracts continues to intrigue me. It would appear the author suggests those myriad implied contracts carry only *moral* weight. I think there's a fair argument under Objectivism that they could also carry *legal* weight. Under current law, they usually do, just not as implied contracts, but rather as rights and corresponding duties under tort law.

Hi Bill,

I think that's a fine analysis. To clarify, are you suggesting that a term for permission to enter must be made clear to the extent it is severe? I was trying to get at this in posts 59 and 71.

Thanks,
Jordan
(Edited by Jordan on 2/19, 11:56am)

Post 93

Thursday, February 19, 2009 - 11:04pm

Jordan wrote (to me): "To clarify, are you suggesting that a term for permission to enter must be made clear to the extent it is severe? I was trying to get at this in posts 59 and 71."

Only if the conditions are ones that no normal person would find agreeable. Obviously, no normal person would agree to be punched, groped or otherwise physically assaulted if he or she were invited to your house for a party. If you were to allow such actions, then you would need to obtain the explicit consent of your guests before their entry onto your property. If a boxer steps into a ring against an opponent, his consent has already been obtained, and his rights are not therefore violated if he is punched by his opponent, since he knows what to expect and has already agreed to it.

But if I go to a party at your house and you punch me without first obtaining my explicit consent, then you have violated my rights, since it is reasonable to suppose that this is not something I would normally consent to.

By the same token, respect for your rights would require that I not injure you physically or damage your possessions, unless you explicitly consent to it.

- Bill

Post 94

Friday, February 20, 2009 - 9:35am