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.
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