What is being denied by the negative statement that certain rights are not alienable? Human beings living in organized societies under civil government have many rights that are conferred upon them by the laws of the state, and sometimes by its constitution. These are usually called civil rights, legal rights, or constitutional rights. This indicates their source. It also indicates that these rights, which are conferred by constitutional provisions or by the positive enactment of man-made laws, can be revoked or nullified by the same power or authority that instituted them in the first place. They are alienable rights. The giver can take them away.
What the state does not give, it cannot take away. If human rights are natural rights, as opposed to those that are civil, constitutional, or legal, then their being rights by natural endowment makes them inalienable in the sense just indicated.
Their existence as natural endowments gives them moral authority even when they lack legal force or legal sanctions. Their moral authority imposes moral obligations, which may or may not be respected or fulfilled.
A given state or society may or may not, by its constitution and its laws, attempt to secure these rights or to enforce them. It may even do the very opposite. It may transgress or violate these inalienable natural or human rights. When it fails to enforce these rights or, worse, when it violates them, it is subject to condemnation on moral grounds as being unjust.
If unjust governments can violate these human or natural rights, in what sense do they still remain inalienable? Are they not being taken away by such violations?
When a human right is not acknowledged by the state, or when it is not enforced or when it is violated by a government, it still exists. It retains its moral authority even though it is not enforced or has been transgressed. If these rights did not continue in existence in spite of such adverse circumstances, then we would have no basis for condemning as unjust a government that failed to enforce them or that trampled on them.
One question still remains concerning the inalienability of natural human rights. The Declaration mentions our inalienable right to life and to liberty. But when criminals are justly convicted and sentenced to terms in prison, are we not taking away their liberty? And when they are convicted of capital offenses for which death is the penalty, are we not taking away their lives? If so, how then do the rights in question still exist and remain inalienable?
It is easier to answer the question about imprisonment than it is to answer the question about the death penalty. Two points are involved in the answer.
First, the criminal by his antisocial conduct and by his violation of a just law has forfeited not the right, but the temporary exercise of it. His incarceration in prison does not completely remove his freedom of action, but it severely limits the exercise of that freedom for the period of imprisonment.
The right remains in existence both during imprisonment and after release from prison. If the prison warden attempted to make the prisoner his personal slave, that would be an act of injustice on his part, because enslavement would be a violation of the human right to the status of a free man. This human right belongs to those in a prison as well as those outside its walls.
When the criminal’s term of imprisonment comes to an end, what is restored is not the individual’s right to liberty (as if that had been taken away when he entered the prison), but only his fuller exercise of that right. It is the exercise of that right that is given back to him when he walks out of the prison gates, not the right itself, for that was never taken away or alienated.
When we come to capital punishment, we cannot deal with the question in the same way. The death penalty takes away more than the exercise of the right to life. It takes away life itself.
If that right is inalienable, it cannot be taken away by the state, nor can it be forfeited by the individual’s misconduct. It is one thing to forfeit the exercise of a right and quite another to divest one’s self of a right entirely. What cannot be taken away by another cannot be divested by one’s self.
It would, therefore, appear to be the case that the death penalty is unjust as a violation of a natural human right. Nevertheless, capital punishment has been pragmatically justified as serving the welfare of society by functioning as a deterrent to the gravest of felonies. But its deterrent effect has been seriously questioned in the light of all the evidence available. Whatever deterrent effect the death penalty exerts might be equally possessed by another punitive treatment meted out for capital offenses — for example, life imprisonment with no possibility of parole, though with some alleviation of the harshness of prison life as a reward for good behavior.
For the time being, we are left with an unresolved issue between proponents and opponents of capital punishment. The substitution of life imprisonment for the death penalty might solve the problem.
[Great Books of the Western World GBotWW=”1″]