History of the Inalienability Rights Argument

A Brief History of the Inalienability Rights Argument

David Ellerman

The foundation of the inalienable rights argument was the crucial difference between persons and things in an alienation contract. Where has this insight—that a person cannot fit the legal role of a non-person (even voluntarily)—erupted in the history of thought?  The Ancients did not see this matter clearly.  For Aristotle, slavery was based on “fact”; some adults were seen as being inherently of diminished capacity if not as “talking instruments” marked for slavery “from the hour of their birth.” [Politics, 1254a]  Treating them as slaves was no more inappropriate for Aristotle than treating a donkey as an animal—to each according to its nature.

The Stoic anticipations

The Stoics held the radically different view that no one was a slave by their nature; slavery was an external condition juxtaposed to the internal freedom of the soul. Chrysippus challenged Aristotle’s notion that some people were slaves by nature.  By virtue of their rational and social nature, Cicero saw all men as equal under the jus naturale. Sabine found in the Stoics an anticipation of the Kantian theme to treat all humans as persons rather than as things.

Even if he were a slave he would not be, as Aristotle had said, a living tool, but more nearly as Chrysippus had said, a wage-earner for life.  Or, as Kant rephrased the old ideal eighteen centuries later, a man must be treated as an end and not as a means.  The astonishing fact is that Chrysippus and Cicero are closer to Kant than they are to Aristotle. [Sabine 1958, p. 165]

Seneca further developed the idea of external bondage and internal freedom of the soul.

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. [Seneca, De beneficiis, III, 20; quoted in Cassirer 1963, 103]

In spite of the legal role of the slave as an instrument employed by another person, the mind of the slave is sui juris.

The Reformation doctrine of the liberty of conscience

The Stoic doctrine that the “inner part cannot be delivered into bondage” [Davis 1966, 77] re-emerged in the Reformation doctrine of liberty of conscience.  Liberal thought tends to interpret the doctrine of liberty of conscience in terms of tolerance [see Rawls 1996]. But there is another aspect of that doctrine that leads to the theory of inalienable rights, and this aspect gets short shrift in liberal intellectual history.

Secular authorities who try to compel belief can only secure external conformity.

Besides, the blind, wretched folk do not see how utterly hopeless and impossible a thing they are attempting.  For no matter how much they fret and fume, they cannot do more than make people obey them by word or deed; the heart they cannot constrain, though they wear themselves out trying.  For the proverb is true, “Thoughts are free.”  Why then would they constrain people to believe from the heart, when they see that it is impossible? [Luther 1942 (1523), 316]

Martin Luther was explicit about the de facto element; it was “impossible” to “constrain people to believe from the heart.”

Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly.  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. [Luther 1942 (1523), 316]

Spinoza’s natural right that one “cannot abdicate even with consent”

Perhaps it was Baruch Spinoza (1632-1677) who first translated the doctrine of the  liberty of conscience into the political notion of a right that could not be ceded “even with consent”. In Spinoza’s Theologico-Political Treatise published in 1670, he spelled out the essentials of the inalienable rights argument.

However, we have shown already (Chapter XVII) that no man’s mind can possibly lie wholly at the disposition of another, for no one can willingly transfer his natural right of free reason and judgment, or be compelled so to do.  For this reason government which attempts to control minds is accounted tyrannical, and it is considered an abuse of sovereignty and a usurpation of the rights of subjects, to seek to prescribe what shall be accepted as true, or rejected as false, or what opinions should actuate men in their worship of God.  All these questions fall within a man’s natural right, which he cannot abdicate even with consent.
I admit that the judgment can be biassed in many ways, and to an almost incredible degree, so that while exempt from direct external control it may be so dependent on another man’s words, that it may fitly be said to be ruled by him; but although this influence is carried to great lengths, it has never gone so far as to invalidate the statement, that each man’s understanding is his own, and that brains are as diverse as palates. [Spinoza 1951, 257]

But it was Hutcheson and the Scottish Enlightenment who, perhaps independently (?), arrived at the same idea in the form that was to later enter the political lexicon through the American Declaration of Independence.

Inalienable rights in Hutcheson and the Scottish Enlightenment

Francis Hutcheson (1694-1746), the predecessor of Adam Smith in the chair in moral philosophy in Glasgow and one of the leading moral philosophers of the Scottish Enlightenment, transformed the doctrine of liberty of conscience into a theory of inalienable rights.  Although intimated in earlier works, the inalienability argument is best developed in Hutcheson’s influential A System of Moral Philosophy (1755).

Our rights are either alienable, or unalienable. The former are known by these two characters jointly, that the translation of them to others can be made effectually, and that some interest of society, or individuals consistently with it, may frequently require such translations.  Thus our right to our goods and labours is naturally alienable.  But where either the translation cannot be made with any effect, or where no good in human life requires it, the right is unalienable, and cannot be justly claimed by any other but the person originally possessing it. [Hutcheson 1755, 261]

Hutcheson appeals to the  inalienability argument in addition to utility.  He contrasts de facto alienable goods where “the translation of them to others can be made effectually” (like the shovel discussed in Part I) with factually inalienable faculties where “the translation cannot be made with any effect.”  This was not just some outpouring of moral emotions that one should not alienate this or that basic right.  Hutcheson actually set forth a theory which could have legs of its own far beyond Hutcheson’s (not to mention Luther’s) intent.  He based the theory on what in fact could or could not be transferred or alienated from one person to another.

Hutcheson goes on to show how the “right of private judgment” or liberty of conscience is inalienable.

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. [Hutcheson 1755, 261-2]

Hutcheson pinpoints the factual nontransferability of private decision-making power.  In the case of the criminous employee, we saw how the employee ultimately makes the decisions himself (through ratification and voluntary obedience) in spite of what is commanded by the employer.  Short of coercion, an individual’s faculty of judgment cannot in fact be short circuited by a secular or religious authority.

A like natural right every intelligent being has about his own opinions, speculative or practical, to judge according to the evidence that appears to him.  This right appears from the very constitution of the rational mind which can assent or dissent solely according to the evidence presented, and naturally desires knowledge.  The same considerations shew this right to be unalienable: it cannot be subjected to the will of another: tho’ where there is a previous judgment formed concerning the superior wisdom of another, or his infallibility, the opinion of this other, to a weak mind, may become sufficient evidence. [Hutcheson 1755, 295]

Democratic theory carried over this theory from the inalienability of conscience to a critique of the Hobbesian pactum subjectionis, the contract to alienate and transfer the right of self-determination as if it were a property that could be transferred from a people to a sovereign.  Few have seen these connections as clearly as Staughton Lynd in his Intellectual Origins of American Radicalism.  When commenting on Hutcheson’s theory, Lynd noted that when “rights were termed ‘unalienable’ in this sense, it did not mean that they could not be transferred without consent, but that their nature made them untransferrable.” [Lynd 1969, 45] The crucial link was to go from the inalienable liberty of conscience to a theory of inalienable rights.

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. [Lynd 1969, 56-7]

Or as Ernst Cassirer put it:

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. [Cassirer 1963, 175]

In the American Declaration of Independence, “Jefferson took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important.” [Wills 1979, 213] But the theory behind the notion of inalienable rights was lost in the transition from the Scottish Enlightenment to the slave-holding society of ante-bellum America.  The phraseology of “inalienable rights” is a staple in the American political culture, e.g., as  4th of July rhetoric, but the original theory of inalienability has been largely ignored or forgotten.

Inalienability in Kant and Hegel

I have focused on the path from the Reformation through the Scottish Enlightenment.  There is also a path directly through German philosophy that might be mentioned.  Immanuel Kant acknowledged that “every man has inalienable rights which he cannot give up even if he would…” [1974, 72].

Nor can a man living in the legal framework of a community be stripped of this quality by anything save his own crime.  He can never lose it, neither by contract nor by acts of war (occupatio bellica), for no legal act, neither his own nor another’s, can terminate his proprietary rights in himself. [1974, 61]

But why?  The explanation might be based on Kant’s notion of proprietary right derived from intentional possession by one’s will.

[O]wning is a matter of a human will taking possession; it therefore already excludes slavery as a possible form of property: persons cannot be owned… .

[W]hat defeats the appropriation of a person is that he is necessarily occupied by his own will. [Ryan 1982, 57]

This theme is more explicit in Hegel’s treatment of property and inalienability.

Hegel gave the most explicit treatment that—like Hutcheson—juxtaposed the alienability of things (like shovels where “the translation of them to others can be made effectually”) with the inalienability of the aspects of our personhood (decision-making and responsibility).

The reason I can alienate my property is that it is mine only in so far as I put my will into it.  Hence I may abandon (derelinquere) as a res nullius anything that I have or yield it to the will of another and so into his possession, provided always that the thing in question is a thing external by nature. [Hegel 1967 (1821), §65]

But alienation clearly cannot be applied to one’s own personality.

Therefore those goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible. [Hegel 1967, §66]

An individual cannot in fact vacate and transfer that responsible agency which makes one a person.

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. [Hegel 1967 (1821). Remark to §66]

This argument had legs of its own and reached beyond Hegel’s intent.  The argument so clearly applied also to the master-servant contract that Hegel tried to invoke some metaphysical mumbo-jumbo–”the use of my powers differs from my powers and therefore from myself, only in so far as it is quantitatively restricted” [Hegel 1967, §67] to make the distinction “between a slave and a modern domestic servant or day-labourer” [Hegel 1967, Addenda to §67, 241], i.e., to morally differentiate the self-sale and self-rental contracts.  But Hegel’s waffling is not sustained by his own theory since a person cannot vacate their will or transfer possession of their personality for eight hours a day any more than for a lifetime.

References

Cassirer, Ernst 1963. The Myth of the State. New Haven: Yale University Press.

Davis, David Brion 1966. The Problem of Slavery in Western Culture. Ithaca: Cornell U. Press.

Hegel, Georg W. F. 1967 (1821). Hegel’s Philosophy of Right. T.M. Knox (trans.), New York: Oxford University Press.

Hutcheson, Francis 1755. A System of Moral Philosophy. London.

Kant, Immanuel 1974.  On the Old Saw: That May be Right in Theory But It Won’t Work in Practice. E.B. Ashton (trans.).  Philadelphia: University of Pennsylvania Press.

Luther, Martin 1942 (1523). Concerning Secular Authority. In Readings in Political Philosophy. Francis W. Coker (ed.), New York: Macmillan: 306-329.

Lynd, Staughton 1969. Intellectual Origins of American Radicalism. New York: Vintage Books.

Rawls, John 1996. Political Liberalism. New York: Columbia University Press.

Ryan, Alan 1982.  The Romantic Theory of Ownership.  In Property and Social Relations. Peter Hollowell (ed.).  London: Heinemann. 52-68.

Sabine, George H. 1958. A History of Political Theory. New York: Henry  Holt and Company.

Spinoza, Benedict de 1951 (Orig. 1670). Theologico-Political Treatise. R.H.M. Elwes (trans.), New York: Dover Publications.

Wills, Garry 1979. Inventing America. New York: Vintage Books.

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