Will Theory and Inalienable Rights

¶ … Inalienable Rights

Although America's founding documents declared unequivocally "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," the signing of the Declaration of Independence did nothing more to end the debate over rights, power, and liberty than did the discourses of Immanuel Kant, Thomas Hobbes, and John Locke. The notion of inalienable rights is rooted in Hobbesian theory, after Hobbes wrote in his Leviathan that "to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing anything, which in his own judgment, and Reason, he shall conceive to be the (most) apt means thereunto," thus offering philosophy's most basic elucidation of the concept of inalienable rights. Western philosophy has always focused the attention of its greatest thinkers on the concept of natural vs. legal rights, with the former representing life, liberty, and those ostensibly inalienable rights granted to all people regardless of culture or custom, and the latter consisting of the rights bestowed upon citizens by the legal apparatus of their government. The distinctions between one's privilege to do something and their duty to do so, their claim over a right and the power to enforce that claim, these minutiae have been the subject of intense debate for as long as mankind has possessed the capacity for reason. The result has been the emergence of "two main theories of the function of rights: the will theory and the interest theory," and a dichotomy in which "each presents itself as capturing an ordinary understanding of what rights do for those who hold them" (Wenar, 2011). In order to engage in an informed discussion on the role and relevance of inalienable rights, it is necessary to first become familiarized with the opposing constructs of will theory and interest theory.

Under the Hohfeldian Analytical System developed in the late 19th century by American legal theorist Wesley Hohfeld, every right can be deconstructed much in the way a molecule can, with the four basic components of any right being the privilege, the claim, the power, and the immunity (Wenar, 2011). Applying the concept of Hohfeldian analytics has historically led to convoluted suppositions holding that "just as a liability is the absence of an immunity, and a disability is the absence of a power, so a no-right is [obviously] the absence of a right, and a duty is the absence of a liberty," which is why the practice has encountered scholarly criticism since its inception. Nonetheless, this style of analytic deconstruction is important to the broader discussion of inalienable rights, because interpreted through the prism of the Hohfeldian system, will theorists assert that all rights necessarily provide for a Hohfeldian power over a claim, which is to say that will theorists believe all rights confer control over another's duty to act" (Wenar, 2011). This would appear to be contradictory to the concept of inalienable rights, as the act of surrendering one's claim to a right would countermand its status as inalienable. This contradiction is important to consider because "within the will theory there can be no such thing as an unwaivable right: a right over which its holder has no power." When a right is inalienable, the implication is that no entity, even the rights holder themselves, possesses the power to invalidate that right, so the concept of inalienable rights is, on its surface, incompatible with will theory.