Inalienable Rights as Legal Rights?

Inalienable rights do not change or differ depending on time or place. Inalienable rights derive from the nature of the necessary and symbiotic relationship between individuals and society at large. To call them inalienable, however, is not to say that they cannot be subjugated by law. History, and indeed contemporaneous events, demonstrate that many governments do deny their citizens their inalienable rights. To call rights inalienable, then, is to say that in denying people the free exercise of those rights is to do violence to them and to society itself and is therefore immoral, destructive, and unsustainable, making the government which systematically denies such rights to its people utterly illegitimate.

Before analyzing various principles which are alleged to be inalienable rights, a word regarding the nature of rights themselves is warranted. I propose that a right is nothing more than a rational expectation derived from the framework of social relations. The rational expectation may derive, as in the case of transitory rights, from a statute, a Constitutional provision, or other explicit agreement which is subject to change. Inalienable rights, however, derive from the relationship of society and individuals itself, and cannot legitimately be subjugated by any such transitory right. They are implicit rights, rights which exist as a necessary part of the relationship between individuals and society. However, every right enforced by law is ultimately derived from transitory rights expressed in statutes or Constitutions. Even the rights defined in a Constitution are transitory because a Constitution must provide for changes in society and for greater awareness of rights. In other words, as a social compact, a Constitution is itself subject to change, and must be so.

The challenge then is to determine how and to what extent inalienable rights can become governing principles guiding the application of all other legal rights. It seems to me, that the key lies in beginning the inquiry with the judiciary. The judicial branch should be so steeped in commitment to inalienable rights that even if a Constitution should express something contrary to them, the courts will be able to subjugate the Constitutional provision to the inalienable rights. This however, would seem to provide an enormous amount of power to the courts, a power which might become tyrannical in practice. On the other hand, the courts are in themselves incredibly weak. The great secret of their power lies in not issuing rulings which are liable to be disregarded by the other branches of government, or if their rulings are so disregarded, to be able to muster the public support to "punish" the other branches by electing others in place of those who have disregarded the courts. Thus, the courts are actually incapable of tyrannically governing the norms of society because broad public discontent with their rulings results in an epoch in which the courts lose almost all legitimacy. This has happened on several occasions in American history. However, these examples are not so much examples of checks on the tyrannical tendencies of the courts as they are of the courts' incapability to stem the tide of illegitimate, tyrannical actions which enjoy broad public support.

Thus we see, that in all reality, legal recognition of inalienable rights depends on broad public support, and willingness to act, for those rights. This is not to say that inalienable rights are themselves whatever a lot of the people want. Rather, the legal effect which inalienable rights enjoy will be determined by the commitment of the people to them. Thus, it is possible for public support to depart from inalienable rights in favor of laws which might be contrary to them. The tragedy of such a situation is that the people are then so un-self-aware that they don't even realize the violence that they are doing to themselves. It is therefore essential to a legitimate government that the people 1) are capable of expressing their support or disfavor for certain provisions in a meaningful way, and 2) are educated enough to understand what rights are inalienable and to understand why they are inalienable. Thus, oddly enough, we find that in a legitimate government, people have the right to some amount of free speech and freedom of conscience as well as the right to a basic education. These of course need to be further elaborated, but serve as a good starting point for a discussion of inalienable/fundamental/ universal/human rights.