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WAYS OF LOSING OR WEAKENING RIGHTS

8.4.3 

THE EXTENT AND DURATION OF THE ALIENATION OF A RIGHT


A central notion in theories of rights is inalienability. So it has been said that (all) natural rights would be 'inalienable'. But what is this supposed to mean? Does it mean that a 'natural being' can never lose such a right, neither in practise (when violated or overruled) nor in theory? Does it mean that it or 'e can never relinquish such a right, even with its or 'er own consent, neither permanently nor temporarily? Of course, it is the duty of the person claiming that a certain right or category of rights is 'inalienable' or 'imprescriptible' to make clear what 'e means precisely, but historically this duty has seldom been taken seriously. And latter-day interpreters do usually not agree.

A classical example of alienation is the voluntary conveyance of property to another person. (In a figurative fashion people may also speak of "the alienation of someone's affections".) If it is believed that a right cannot be lost in such a manner, it is 'inalienable'. Yet, this still leaves us with two possible interpretations. First there are those who assert that it means that the right cannot be transferred 'voluntarily' (that is, by the agent 'imself). And there are those who assert that it is a right which cannot be lost in any way, which a person or other entity can never cease to possess if 'e or it ever possessed it. In the former sense inalienable has to be distinguished from nonforfeitable, imprescriptible and indefeasible. Thus if, for example, a discretionary right to life were nonforfeitable and imprescriptible, and yet alienable, then --it has been pointed out-- it could be life itself which would be alienable but also the right to life. Such a distinction may have to be drawn, for it can play an important role in a certain context.

Just as the relinquishment and the abrogation of a right may be permanent or temporary, so there is no conceptual reason why a forfeiture might not be either permanent or temporary as well. The fact that this parallel distinction has not been made in traditional schemes is no reason whatsoever not to do it ourselves. Moreover, there is no conceptual reason either, why not all these kinds of losing or weakening rights (that is, by relinquishment, forfeiture or abrogation) could be either complete or partial too. Traditional theorists of the right to punish class and others have but too easily declared that a person would, for example, forfeit 'er right to life completely and permanently thru some kind of wrongdoing, or some act 'which deserves death'.

One natural rights theorist might be placed at the head of it all. He denied the rights of citizenship to women and the poor, took for gospel that the state-religion of his country was the 'natural' one, and usefully contended that the person (or state) to whom someone would have forfeited 'his' life could 'delay to take it, and make use of him to his own service', and that 'he would do him no injury by it'. (In the mind of this monotheolog or his disciples the act which 'deserved' death or slavery was not necessarily murder but could have been cursing a parent or any kind of unyonic lingam-use which would not issue in becoming a parent.) Thus even permanent and complete slavery has once been 'justified' by appealing to rights. Add to this the fabrication of a doctrine like that of the 'Divine Right of Kings' and, naturally, the historical record of rights is a sad one indeed.


©MVVM, 41-57 ASWW
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