Academic

Stern & Jones on Natural Inalienable Rights

By Lawrence Solum

Craig A. Stern and Gregory M. Jones (Regent University School of Law and Foundation for Moral Law) have posted The Coherence of Natural Inalienable Rights (UMKC Law Review, Vol. 76, No. 4, 2008) on SSRN.  Here is the abstract:

The Declaration of Independence asserts that human beings are endowed by their Creator with certain unalienable Rights, including Life, Liberty, and the Pursuit of Happiness. But human beings often do alienate life, liberty, and the pursuit of happiness. Recruits serving in the armed forces, for example, have given up both liberty and the pursuit of happiness, and have placed themselves in a position also apt to call for giving up their lives. And if the Declaration charged the Crown with taking unalienable rights, how is it that the Fifth Amendment explicitly contemplates that the federal government may properly take life and liberty?

Perhaps even more puzzling, if "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," Planned Parenthood v. Casey, 505 U.S.833, 851 (1992), what supports the notion of natural inalienable rights at all, rights the right holder cannot alienate, however much that may be the holder's well considered desire in exercising this liberty?

The present article answers these questions. Ultimately, natural inalienable rights presuppose a transcendent legal order. They presuppose this order formally, because natural inalienable rights are rights against lawless takings of the objects of those rights. More fundamentally, they presuppose a transcendent legal order materially, because they spring from theories resting upon transcendent law. Natural inalienable rights are coherent only when such a legal order is presupposed.

Full post as published by Legal Theory Blog on May 07, 2008 (boomark / email).