Inalienable Rights: Part I The Basic Argument

What an inalienable right is and is not

In a previous post about slavery, we saw that the basic question was not a contrast of consent versus coercion. From Antiquity down to the present, there were consent-based arguments for slavery and non-democratic government as being founded on certain explicit or implicit contracts. The most recent example was the Harvard philosopher, Robert Nozick, who has been the most prominent figure in free-market libertarianism. Nozick explicitly argued that people should be allowed to voluntarily sell or transfer their self-government rights to a “dominant protective association” [Nozick 1974, 15] which would then rule in its own name (not as a representative or delegate of its subjects). Nozick continued:

The comparable question about an individual is whether a free system will allow him to sell himself into slavery. I believe that it would. [Nozick 1974, 331]

An inalienable right is a right that may not be ceded or transferred away even with the consent of the holders of the right. Any contract to alienate such a right would be an inherently invalid contract, and, vice-versa, a right such that any contract to alienate it was inherently invalid would thus be an inalienable right. From the American Declaration of Independence onward, the phrase “inalienable rights” has been a part of the American political lexicon.

Since Nozick consistently argued that libertarianism would validate a political contract to give up one’s basic political rights of self-government (the classical pactum subjectionis) and an economic contract to sell one’s labor by the lifetime (the self-sale contract), Nozick clearly had no notion of an “inalienable right” in the classical sense of a right that may not be alienated even with full and informed consent. But since the notion was a staple in the American political lexicon, Nozick substituted the notion of “rights” that may not be taken from an individual without consent. Thus Nozick is often seen as a defender of “inalienable rights” using that redefinition of the phrase. But the adjective “inalienable” plays no role here since Nozick has simply described a “right” as opposed to a “privilege.” If a “right” could legally be taken from a person without consent, then it would be more a “privilege” that was once granted and then taken away. An ordinary alienable property right is a right that may not be taken without consent—and thus it is clearly not an inalienable right in the usual sense of a right that may not be alienated even with consent.

Nozick clearly had no such notion of an inalienable right that may not be alienated even with consent. The sorry state of affairs where a libertarian like Nozick could be considered a defender of “inalienable rights” (after confusing the notion with ordinary alienable rights) is perhaps a commentary on the state of confusion in contemporary political and legal philosophy.

Since from Antiquity down to the present, there have been defenses of slavery and autocracy based on explicit or implicit consent, the anti-slavery and democratic movements needed to counter those ‘best’ arguments for slavery and autocracy. It was not enough to counter the worst arguments based on divine rights, rights of “conquest,” racism, or paternalism. They needed to counter the arguments that slavery and autocracy could be based on explicit or implicit contracts—arguments that today would be called “liberal” or “libertarian.”

In Part II of this post, I will review the intellectual history of the classical inalienable rights theory that descends from the Reformation down through the Enlightenment to the present time. But first in this Part I, the point is to explain the argument in modern terms.

Inalienable rights theory

The basic idea is quite simple. The key is that in consenting to such an alienation contract, a person is agreeing to, in effect, take on the legal role of a non-adult, indeed, a non-person or thing. Yet all the consent in the world would not in fact turn an adult into a minor or person of diminished capacity, not to mention, turn a person into a thing. The most the person could do was obey the master, sovereign, or employer—and the authorities would “count” that as fulfilling the contract. Then all the legal rights and obligations would be assigned according to the de jure “contract” (as if the person in fact had diminished or no capacity). But the attributes that make one a person (e.g., de facto responsible action) cannot in fact be transferred to another person. Any rights the person had qua person would be unchanged. Since the person remained a de facto fully capacitated adult person with only the contractual role of a non-person or diminished person, the contract was impossible and invalid. A ‘libertarian’ system of positive law that accepted such contracts would only be a fraud on an institutional scale. That in a nutshell is the inalienable rights theory based on the de facto nontransferability of the attributes a person has qua person. It gives the fatal flaw in any personal alienation contract that puts a person in the legal role of a non-person or a person of diminished capacity.

Applying this argument requires prior analysis to tell when a contract puts a person in the legal role of a non-person. Having the role of a non-person is not necessarily explicit in the language of the contract and it has nothing to do with the payment in the contract, the incompleteness of the contract, working conditions, or the like.

That a contract treats a person as a non-person or as a person of diminished capacity is not always obvious to someone born and raised in a society who might see such as contract as perfectly “normal.” Another example of such a personal alienation contract is the old “coverture” marriage contract that extinguishes the independent legal personality of a “feme sole” or transfers the already non-existent independent legal personality of the “feme covert” from the father to the husband. In the western democratic countries, this form of the marriage contract was abolished during or before the twentieth century (in spite of the vestigial practice of the wife changing her last name from the father’s to the husband’s and even the father “giving away” the bride to the groom in the wedding ceremony itself). But in many parts of the world, people are raised to consider this form of marriage (which is vouchsafed by the clergy) as just being normal—just as the people in the western democratic countries still think of a whole economy based on the renting of people as just being “normal.”

The argument is based on the distinction between persons and things. Persons and things can be distinguished on the basis of decision-making and responsibility. For instance, a genuine thing such as a tool or machine can be alienated or transferred from person A to B. Person A, the owner of the tool, can indeed give up making decisions about the use of the tool and person B can take over making those decisions. Person A does not have the responsibility for the consequences of the employment of the tool by person B. Person B makes the decisions about using the tool and has the de facto responsibility for the results of that use. Thus a contract to sell or rent a tool such as a shovel or a car from A to B can actually be fulfilled. The decision-making and responsibility for employing the tool can in fact be transferred from A to B.

But now replace the tool by person A himself or herself. Suppose that the contract was for person A to sell or rent himself or herself to person B—as if a person was a transferable or alienable instrument that could be “employed” by another person. The pactum subjectionis is a collective version of such a contract but it is easier to understand the individual version. The contract could be perfectly voluntary. For whatever reason and compensation, person A is willing to take on the short-term or long-term legal role of a “non-responsible instrument” to be employed by another person B. But the person A cannot in fact transfer decision-making or responsibility over his or her own actions to B. The point is not that a person should not or ought not do it; the point is that a person cannot in fact make such a voluntary transfer. At most, person A can agree to cooperate with B by doing what B says. But that is no alienation or transference of decision-making or responsibility. Person A is still inexorably involved in ratifying B’s decisions and person A inextricably shares the de facto responsibility for the results of A’s and B’s joint activity—as everyone recognizes in the case of a hired criminal.

Yet a legal system could “validate” such a contract (when no crime was committed) and could “count” obedience to the master or sovereign as “fulfilling” the contract and then rights are structured as if it were actually fulfilled, i.e., as if the person were actually of diminished or no capacity.

The revealing moment of the criminous slave or servant

But such an institutionalized fraud always has one revealing moment where even the most slavishly conforming observers (e.g., conventional economists, lawyers, or philosophers) can see the legal fiction behind the system—if they have the will to see it. That is when the legalized “thing” would commit a crime. Then the “thing” would be suddenly metamorphosed—in the eyes of the law—back into being a person to be held legally responsible for the crime. For instance, an ante-bellum Alabama court asserted that slaves

are rational beings, they are capable of committing crimes; and in reference to acts which are crimes, are regarded as persons. Because they are slaves, they are … incapable of performing civil acts, and, in reference to all such, they are things, not persons. [Catterall 1926, 247]

The pretense of the slave’s thinghood was the basis for the economic system of slavery. But that pretense served no purpose when slaves stepped outside the appointed role and committed crimes. As one abolitionist put it:

The slave, who is but ‘a chattel‘ on all other occasions, with not one solitary attribute of personality accorded to him, becomes ‘a person‘ whenever he is to be punished! [Goodell 1853, 309]


Since there was no legal theory that slaves actually became things in their “civil acts,” the fiction involved in treating the slaves as “things” was clear to all observers who had the will to see it. And this is a question of the facts about human nature, facts that are unchanged by consent or contract.

If the slave had acquired that legal role in a voluntary contract, it would not change the fact that the slave remained a de facto person with the law only “counting” the contractual slave’s non-criminous obedience as “fulfilling” the contract to play the legal role of a non-responsible entity, a non-person or thing.

The alienability of a thing’s services; the inalienability of human actions

The key insight is the difference in the factual transferability of a thing’s services and our own actions—the person-thing mismatch. I can voluntarily transfer the services of my shovel to another person so that the other person can employ the shovel and be solely de facto responsible for the results. I cannot voluntarily transfer my own actions in like manner. It is not a matter of “should not”; it is can not do it. Thus the contract to rent out my shovel is a normal contract that I fulfill by transferring the employment of the shovel to its employer. The problem arises when this “selling services” contract is applied to one’s own actions, i.e., the hired labor or employment contract.

The “problem” with any theory (as opposed to catalogue of personal views) is that it may have “legs of its own” and go further that the original applications. The inalienability argument is a case in point since it applies as well to the self-rental contract—that is, today’s employment contract—as to the self-sale contract or pact of subjection. I can certainly voluntarily agree to a contract to be “employed” by an “employer” on a long or short term basis, but I cannot in fact “transfer” my own actions for the long or short term. The factual inalienability of responsible human action and decision-making is independent of the duration of the contract. That factual inalienability is also independent of the compensation paid in the contract—which is why this inalienability analysis has nothing to do with exploitation theories of either the Marxian or neoclassical (i.e., paying less than the value of marginal productivity) varieties that Marxist and conventional economists so fondly debate back and forth.

Where the legal system “validates” such contracts, it must fictitiously “count” one’s inextricably co-responsible co-operation with the “employer” as fulfilling the employment contract—except in the revealing moment that the employer and employee commit a crime together. The servant in work becomes the partner in crime. As stated in a recent English law book on the employment relation:

All who participate in a crime with a guilty intent are liable to punishment. A master and servant who so participate in a crime are liable criminally, not because they are master and servant, but because they jointly carried out a criminal venture and are both criminous. [Batt 1967, 612]


When the “venture” being “jointly carried out” by the employer and employee is not criminous, then the facts about human responsibility do not change. But then the legal fiction takes over. The joint venture or partnership is transformed into the employer’s sole venture. The employee is legally transformed from being a co-responsible partner to being only an input supplier sharing zero legal responsibility for either the input liabilities or the produced outputs of the business “jointly carried out” by the working employer and the employees.

Obedience to the employer is “counted” as “fulfilling” the contract on the part of the employee, and the payment of wages counts as fulfilling the contract on the part of the employer. Thus both sides “fulfill” a voluntary contract. Then the institutionalized fraud of renting persons can parade upon the stage of human institutions as a normal voluntary contract vouchsafed by today’s secular clergy of economists, lawyers, and philosophers.


Batt, Francis 1967. The Law of Master and Servant. London: Pitman.

Catterall, Helen T. 1926. Judicial Cases Concerning Slavery and the Negro. Washington, D.C.: Carnegie Institute.

Ellerman, David 1992. Property & Contract in Economics: The Case for Economic Democracy. Cambridge MA: Blackwell. Downloadable from:

Goodell, William 1853. The American Slave Code in Theory and Practice. Reprinted in 1969. New York: New American Library.

Nozick, Robert 1974. Anarchy, State, and Utopia. New York: Basic Books.