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.

The Creation of a Good Society

I see in the Pilgrims our true American heritage.  Today, they are largely ignored or ridiculed for their inconsistencies regarding religious freedom, but this stems from the notion that the concept of religious freedom was their biggest contribution to the world, whereas it is much more than that.  Ignoring or belittling the Pilgrims for what we perceive as inconsistencies does a great disservice to ourselves by blinding us to our true American heritage.  The Pilgrims were not so interested in the idea or principle of religious freedom as such.  They were more interested in the freedom to live their lives and to create a society based upon the principles they believed in, to create their own Good Society.  "Disgusted by the habits of a society which the rigor of their own principles condemned, the Puritans went forth to seek some rude and unfrequented part of the world where they could live according to their own opinions and worship God in freedom."  "These men possessed, in proportion to their number, a greater mass of intelligence than is to be found in any European nation of our own time [1830's].  All, perhaps without a single exception, had received a good education, and many of them were known in Europe for their talents and their acqui[sitions].  The other colonies had been founded by adventurers without families; the immigrants of New England brought with them the best elements of order and morality; they landed on the desert coasts accompanied by their wives and children.  But what especially distinguished them from all others was the aim of their undertaking....they [did not] cross the Atlantic to improve their situation or to increase their wealth; it was a purely intellectual craving that called them from the comforts of their homes; and in facing the inevitable suffering of exile their object was the triumph of an idea." (Democracy in America, Alexis de Toqueville) This idea was Puritanism.  Whether you agree with the Puritan ideal or not, they believed that the principles of the Puritan faith would establish a Good Society. Being unable to establish it or to live it freely in England, they set out to a new land in order to create their Good Society, founded on the principles of Puritanism (which helps explain the inconsistencies in religious tolerance we perceive today).  It is probable that never before in the history of the world had a group of educated people separated themselves from society with the conscious purpose of creating their own Good Society and constructing their own social contract.  This 'Social Liberty' was the freedom they sought (as opposed to religious freedom) and this is our true American heritage.

The creation of the United States of America is an extension of this noble heritage.  The American people were accustomed to being able to establish themselves in societies they preferred and shuddered at the idea that an island thousands of miles away would presume to tell them how to live.  Jefferson referenced this sentiment, citing an attempt on the part of the American colonies to reconcile themselves with Britain, when he wrote, "We have reminded them of the circumstances of our emigration and settlement here." The American commitment to Social Liberty was so strong that they fought the strongest nation in the world hoping desperately to preserve it. 

Coupled with this commitment to Social Liberty, the seemingly endless frontier offered not only amazing natural resources, but a source of hope and inspiration; a 'new world' where anyone's Good Society could be established.  I am well aware of the resulting plight of Native Americans, and how their versions of a Good Society were unfairly trampled underfoot.  The Americans and Europeans certainly could've done much better in engaging the Native Americans.  However, focusing on this once again falls into the problem of focusing on one aspect of the times and applying our current points of view to it, at the risk of blinding us to all else that was good.  The lessons from the failures of the past must be learned, but it is also necessary to embrace the good so that we can determine its value to us today. The settling of the American frontier had its positive side as well as its negative.  These coincided remarkably with the settling of the East Coast.  There were two classes of settlers, adventurers and devoted intellectuals.  Adventurers brought with them drunkenness, disorder, and violence while devoted intellectuals brought with them vision, order, productivity, and experimentation.

The current political, economic, and social crises in America stem from an increasing polarization of the citizens.  As unique individuals, we all have a unique view of what constitutes a Good Society.  When the system doesn’t operate ‘correctly’ or when we see something happen and say, ‘That’s not right,’ we are comparing the reality which surrounds us with our own perception of a Good Society.  Though we are often not fully aware of what our own version of a Good Society is, we each believe in that version so strongly, so powerfully, so personally that we each believe we know what is most important, and that our particular view is the mold for the rest of the nation.  This perception, buried deep within us, is not unique to any individual, any party, or even any single faction within a party.  Parties and factions exist precisely because of our strong beliefs in our own perspectives.  However, the idea that anyone's beliefs (yours or mine) are correct for everyone else lies at the heart of the problems facing America. The majority of Americans today are educated, but there is no allowing for the expression of this education in the establishment of today's Good Societies. 

Differing views of a Good Society easily come into conflict on the national level.  It is easy to see a great variety of opinions on all topics and if we are all to remain members of the same society, we must either be continuously in conflict against each other or we must somehow be reconciled.  The United States is currently in a state of perpetual conflict because we are all trying to tell each other what the Good Society should be, rather than recognizing that there are vastly different conceptions of the Good Society.  When one considers the number of citizens, the free exchange of ideas, and political representation, among many other factors, it can be difficult to imagine the country any other way.  Hence, party politics has assumed a level of dominance in America, even during Washington’s presidency.  It can be truthfully said that the persistence of the United States as a single body politic or as a single society in the face of ongoing internal conflict is a uniquely American triumph. However, this perception that our particular view is best and needs to be imposed on the national level is intolerant and, if realized, destructive of the very diversity we praise, leading to the creation of a 'centralized administration' to impose that will on the rest of the nation.

In his work, "Democracy in America", M. de Toqueville commented on the dangers of centralized administrations. "[A] centralized administration is fit only to enervate the nations in which it exists, by incessantly diminishing their local spirit.  Although such an administration can bring together at a given moment, on a given point, all the disposable resources of a people, it injures the renewal of those resources.  It may ensure a victory in the hour of strife, but it gradually relaxes the sinews of strength.  It may help admirably the transient greatness of a man, but not the durable prosperity of a nation.... However enlightened and skillful a central power may be, it cannot of itself embrace all the details of the life of a great nation.  Such vigilance exceeds the powers of man.  And when it attempts unaided to create and set in motion so many complicated springs, it must submit to a very imperfect result or exhaust itself in bootless efforts.... [Centralization] easily succeeds, indeed, in subjecting the external actions of men to a certain uniformity, which we come to love for its own sake, independently of the objects to which it is applied, like those devotees who worship the statue and forget the deity it represents.... it excels in prevention, but not in action.  Its force deserts it when society is to be profoundly moved, or accelerated in its course; and if once the co-operation of private citizens is necessary to the furtherance of its measures, the secret of its impotence is disclosed.  Even while the centralized power, in its despair, invokes the assistance of the citizens, it says to them: "You shall act just as I please, as much as I please, and in the direction which I please.  You are to take charge of the details without aspiring to guide the system; you are to work in darkness; and afterwards you may judge my work by its results."  These are not the conditions on which the alliance of the human will is to be obtained; it must be free in its gait and responsible for its acts, or (such is the constitution of man) the citizen had rather remain a passive spectator than a dependent actor in schemes with which he is unacquainted."

Sadly, the history of the United States only shows an increasingly centralized administration through which the party in power may impose its will on the rest of the nation, creating an increasingly homogenous society, while leaving hostility and apathy in its wake. The dynamic strength of America is being sapped. I for one would prefer to see this level of conflict turned to productivity and a flourishing in society (a sort of societal eudaimonia) rather than the current levels of hostility and apathy.  I would rather see tolerance and coexistence and a sharing of ideas towards productive resolutions of problems than to see our country as a miracle because it hasn't imploded on itself. 

By no means do I intend to offer some utopian society without government, as both political extremes advocate.  Some communist utopia is as illusory as some free-market/free-society utopia.  These extremes are clearly unrealizable, and the slightest amount of reflection only shows their absurdity.  Government is necessary and good.  However, I would argue that much is to be gained by recognizing that far fewer values than we might expect are truly "fundamental." Those values which are Constitutionally guaranteed throughout the Nation, should be those which arise necessarily from the mutually dependent relationship between individuals and society. All else, like it or not, is subject to local flavor.

Legitimate Government

By way of review, there are three legitimate interests of government which overlap to some degree, but which also stand in opposition to each other to some degree - liberty, equality, and fraternity (human fellowship). Liberty allows for freedom of action, but paradoxically requires restrictions imposed by law. Equality seeks to demolish social stratification and encourages hard work in the lower classes and demands it in the upper classes. Equality strives for equal results, but through hard work and other social improvements, such as universal education. Fraternity demands that the well-being of each member of society be considered and fostered to the extent possible on a systemic level, that each member of society be provided with a purpose if necessary, but also that social structures should be as lateral (non-hierarchical) as possible.

In considering any public policy concern, these are the three factors which must be weighed against each other, and a sort of cost-benefit analysis conducted. Legitimate government allows for this analysis in such a way as to maximize adherence to the conclusion, but also in such a way as to most easily discard irrational and clearly erroneous conclusions. I suspect that there is never one clear answer to any given problem, but rather that there is a set of acceptable answers from which to choose, and that each society must be free to conduct their own cost-benefit analysis and determine their own solutions.

First, these three principles (particularly those of equality and fraternity) indicate a basic governmental system based in a democratic process. However, it does not indicate a pure democracy. Pure democracy would simply mean that the will of the majority prevails in every circumstance brought before it. This can be dangerous, as some of the ancient Athenians would no doubt testify. It was because of the will of the majority that Socrates was sentenced to death, an indisputable failure of pure democracy. Pure democracy can infringe on the liberty interests of others by including clearly erroneous and illogical solutions into the set of possible solutions for society to choose from. Thus, there must be a democratic system, limited to some degree by a Constitution. A Constitution is principally a guarantor of the liberty interests of minorities from the vagaries of a democracy. This restricts the set of available solutions to those which result from a logical cost-benefit analysis. Other elements may be included in any particular Constitution, but this is the primary purpose in a legitimate government.

Second, the liberty interests may be divided into two categories. Transitory vs. inalienable. Transitory rights are those which may vary from society to society and from time to time. For example, France has recently decided to provide its citizens with the right to get faulty breast implants removed at no direct cost to the patient. This may or may not change in France, but certainly varies by society. Other rights are deemed inalienable. Thomas Jefferson famously wrote that life, liberty, and the pursuit of happiness are inalienable rights. However, this is largely based on John Locke's philosophy, which seems to me to have some serious flaws. Chiefly, Locke's approach is far too atomistic, taking individuals as the basic unit of society. However, as I've indicated in previous posts, I really disagree with this view. Individuals depend on society and society depends on individuals. Neither is more basic than the other. Thus, society (and government as the rough expression of the will of society), far from being a system perversely imposed upon individuals, is part of an essential relationship. It is in the nature of this relationship that any inalienable rights arise, not in the nature of the "basic" individual. Therefore, life, liberty, and the pursuit of happiness may indeed be inalienable rights, but this should be revisited and reanalyzed rather than taken as gospel truth. To be complete, a Constitution ought to indicate what are recognized as inalienable rights, as well as provide for a means by which any new insights may be accommodated and made part of the Constitution.

Thus, we see that a legitimate government is democratic at its base, limited by a Constitution, which provides for both transitory and inalienable rights. Any other differences in how particular societies solve similar problems and balance the interests of liberty, equality, and fraternity is irrelevant, so long as the process itself is legitimate. This should be the primary goal of each independent state, and perhaps, the goal of our foreign policy.

Fraternite

I have delayed writing this post. I fear that other conservatives might feel that I am off base, that I am actually a "bleeding-heart liberal," and no conservative at all. However, I believe that for the conservative movement in America to flourish, we must accommodate the values which lie at the heart of our classical liberal tradition. Failure to do so will only further alienate others from our cause, or if we are successful politically but have surrendered those values then we will only succeed in moving America towards a dictatorial form of government because the only interest in such political success is merely the possession and exercise of power.

Brotherhood - Fellowship - Family - these are the concepts communicated by the term "Fraternite." "Brotherhood" is a bit too exclusionary of a term for today's world and the term "Family" might introduce unsettling paternalistic tendencies in a discussion of government, law and public policy. "Fellowship," or "Human Fellowship," I think most accurately captures the intended meaning. Two thoughts regarding "Human Fellowship" occur to me; 1) each person has a role, a place in society, a purpose; and 2) the interests of others, i.e. their welfare, plays a role in public policy decisions and in structuring the law.

In an order of Human Fellowship, each person has a role, a recognized and valued responsibility, a purpose. The importance of having a valued role in society is demonstrated by the psychological harm to those who are long-term unemployed during major economic downturns. They are rejected in their previous role by society, then effectively told that there is no place for them elsewhere. They are unneeded, undesired. This is a horrible situation which ought to be avoided if at all possible. In a stable social order, the various possible roles in society are well defined, although such a social order often includes limitations placed on individuals' eligibility for those roles. Thus, one's purpose in life is generally defined at birth. Such a system is undoubtedly disconcerting to the modern mind, but we ought not to overlook the positives. There would, I believe, be great comfort in knowing that one's role is valued, has a proud history, and that one need not constantly consider whether their life is "fulfilling." However, we should not over-idealize something which is problematic. In such a system, the talented and skilled would often be consigned to roles into which they do not fit. They would likely experience intense internal conflict between the comfort previously indicated and the knowledge, even if vague, that one is not living up to their potential. Thus, there is great value in allowing individuals to find their own role in society. However, this approach often results in a social order of change, with ill-defined roles, making the search for one's own role incredibly more difficult. Although people have the liberty to choose their own course in life, and what role they will fill, there is near constant anxiety that one is not fulfilling THEIR role. From the above, it may seem to some that a stable social order has more to offer than a changing one. I believe, however, that this is an illusion. There is no such thing as a truly stable social order. The very nature of society is to change and evolve over time as conditions change and the members which make it up change. The values and needs of society are in a constant state of flux, sometimes changing quickly, sometimes slowly, but always moving on to something different. To rigidly hold on to any specific social order and its accompanying roles will only cause society to stagnate, whither and die. Thus, a healthy vibrant society requires a social order which can accommodate such change but still provide a valued role for every member of it.

In terms of the economy, I believe that there is value in the social safety nets which have been created, e.g. social security, medicare, unemployment benefits. However, I think these safety nets can overlook a necessary factor. These programs often focus on the need for people to know that they are valued, even when they are the lowliest of society. This is only half of the picture. They also need to know that they serve a purpose, that their role is valued. Because people identify themselves by the role they play, to indicate that their role is valued is to indicate that they are valued. Thus, in some cases, to truly extend the benefits of the social safety nets, it would also be necessary to extend a role for the beneficiary to play. This leads to my second thought on "Human Fellowship," that the welfare of others plays a role in public policy decisions and the structure of the law.

I will consider here the structure of the law. Interestingly, the basic social structure indicated by "Fraternite" is not hierarchical but lateral. If one were to think of it in terms of an actual family, it might be similar to one in which the siblings have all grown up, and the parents have now deceased. There is no set hierarchy, but there is mutual support and concern, each fulfilling a role according to their abilities and the needs of the others. Is it possible to create a legal structure which approaches such a lateral structure? While allowing anybody to serve in the government and requiring periodic reviews of public servants' performance is possibly the best governmental structure, what of the structure of the law itself? I am struck here by the fact that in such a familial approach, the concern with "justice" is less pronounced. While we all want to be treated fairly, there are times at which it is best to overlook one's own interest in "justice" and look more towards repairing and strengthening relationships. I don't believe that in one's personal life one should overlook when others have slighted you, but rather than being chiefly concerned with oneself and one's own hurt and demand for "justice," one should realize that the slight has harmed your relationship and appropriate measures should be taken to repair it. Sometimes such measures mean to reestablish appropriate boundaries of behavior, but not always, and even when it does, the means by which those boundaries are reestablished are important as it will redefine the relationship. Similarly, the law is chiefly concerned with relationships and the strain and harm done to them by the acts of at least one party. A legal structure based on "Human Fellowship" would focus chiefly on the relationship, considering how to repair it and what means to employ in reestablishing appropriate boundaries of behavior.

This was the basic idea of the prison system when it was first established. Alexis de Tocqueville (the author of Democracy in America) was technically sent to our new nation to study our revolutionary prison system. It had piqued the interest of those in Europe because the theory of our prison system was to reform those who were incarcerated. Historically, offenders were simply punished, often publicly. The punishment itself was meant to reinforce appropriate behavior in others. Those crazy Americans thought that they could reform members of society who had strayed and accordingly abolished cruel and unusual punishments. This interest in reforming wayward members of society, or rather, in repairing social relationships, is I think a proud American tradition that we should bear in mind, and which our legal system should more adequately reflect.

The Wealth of Nations: Book I Chapter 4

Memorable Quotes:
"[W]hen the division of labor first began to take place, . . . , [o]ne man, we shall suppose, has more of a certain commodity than he himself has occasion for, while another has less. The former . . . would be glad to dispose of, and the latter to purchase, a part of this superfluity. But if this latter should chance to have nothing that the former stands in need of, no exchange can be made between them. . . . [E]very prudent man . . . must naturally have endeavored to manage his affairs in such a manner, as to have at all times by him . . . a certain quantity of some one commodity or other, such as he imagined few people would be likely to refuse in exchange for the produce of their industry."
"The word VALUE, it is to be observed, has two different meanings, and sometimes expresses the utility of some particular object, and sometimes the power of purchasing other goods which the possession of that object conveys. . . . The things which have the greatest value in use have frequently little or no value in exchange; and on the contrary, those which have the greatest value in exchange have frequently little or no value in use."

The Basic Idea:
Division of labor being established, every man lives by exchanging. Difficulties of barter lead to the selection of one commodity as money, for example, cattle, salt, shells, cod, tobacco, sugar, leather and nails. Metals were eventually preferred because durable and divisible. Iron, copper, gold and silver, were at first used in unstamped bars, and afterwards stamped to show quantity and fineness; stamps to show fineness being introduced first, and coinage to show weight later. The names of coins originally expressed their weight. The next inquiry is what rules determine exchangeable value. Value may mean either value in use or value in exchange. Three questions, 1) wherein consists the real price of commodities, 2) what are the different parts of this price, 3) why the market price sometimes diverges from this price, will be answered in the next three chapters.

Reflections:
While I disagree with the basic process of how the use of money became necessary, the purpose served by money is undoubtedly precisely that which Smith here expounds - the facilitation of exchange. My qualm with the process of how it became necessary arises from the thought that if exchanging is made difficult by the lack of money or other symbolic expression of value, then what would have been the incentive to specialize and produce an excessive amount of some commodity, thereby neglecting the production of others, in the first place? The need for money certainly arose from excessive production of some goods, but I don't believe that that excessive production first occurred because of specialization. Rather, it seems more likely that excessive production first occurred because of communal cooperation in some industries, i.e. agriculture, which then provided free time for people to specialize. Thus, the need to facilitate trade first arose within a fairly sedentary community for the purpose of achieving a more equitable distribution of wealth. Such a distribution of wealth is made necessary precisely for the reason enunciated by Smith - one person discovers or develops a particular skill, and the use of this skill in his own service quickly diminishes in value. Therefore, he begins to exchange his skill for the skill and produce of others. However, the discovery or development of that skill still depended upon a communal effort to provide all the bare necessities for life. The use of money as we understand it was therefore instituted by various governments so that people could more effectively exchange their skills and products, thereby enriching themselves and the rest of society. Thus, we see that the modern market arises 1st, out of society providing enough basic requirements for life so as to provide leisure time, and 2nd, out of the government "intervening," in this case by creating mints, for the purpose of spreading to others the benefits of anybody's particular skill. Some might argue that this means that we may not need money, and indeed we may not. The principle, by explaining the rule, supersedes it. However, I am currently unaware of any better method to achieve these ends which simultaneously maintains the positive features of the use of money. Of course, I don't mean to say that if I can't think of it then it must not be possible. I'm more than willing to hear creative ideas. Its just that, as a conservative, I will require more than creative ideas before I throw my support behind something.