The Alienable Right: The Reliance of Human Rights on Natural Law
By Colton Grellier
Modern legal thought in most western countries is incompatible with the idea of universal human rights. We’ve reached the point in our legal evolution, if you will, that the presuppositions undergirding our laws directly conflict with the basic premise that all people have the inalienable rights of life, liberty, and the pursuit of happiness.
Originally, this couldn’t be further from the truth. America was founded on the idea of inalienable rights as drawn from natural law. Natural law was described by Justice Joseph Story of the US Supreme Court as “that system of principles which human reason has discovered to regulate the conduct of man in all his various relations” comprehending “natural theology, moral philosophy, and political philosophy” (1829). Put more simply, natural law is a transcendent, unalterable moral law discoverable by reason, yet not founded in reason.
A person’s rights had two primary foundations in early America, and Justice Story divided these rights between the “alienable” and “inalienable.” Alienable rights were rights established by courts, magistrates, and legislatures, touching on matters such as business, torts, contracts, and so on. They are called alienable because these rights can be justly separated from people via due process. The rights of Englishmen, as the colonists referred to them, were drawn from the English constitution, or “common law,” based largely on the Magna Carta and the Confirmatio Cartarum. These documents provided a legal covenant between the crown, the nobility, and eventually the people.
Conversely, inalienable rights are those based in natural law, “that among these are life, liberty, and the pursuit of happiness.” These rights are inalienable because they are “endowed” to the people “by their Creator” and therefore the State lacks jurisdiction to separate the people from these rights. Since rights under natural law are based on the presupposition of a universal moral law, those rights apply equally to all people in all places, and all governments are inherently restricted in how they can infringe upon those rights.
Thomas Jefferson appeals to the “Laws of Nature and of Nature’s God” in the Declaration of Independence as part of the justification for dissolving the political union with England. Indeed, Jefferson goes on to cite numerous instances of how the British government violated both the colonists’ legal rights under British common law and their “unalienable” rights, based in natural law. The signatories go so far as to appeal to the “Supreme Judge of the world” to justify their cause of separation, believing it to be in line with those transcendent “Laws of Nature and of Nature’s God” that not even the King of England could violate.
In modern human rights law, the most significant treaties include language very similar to the Declaration of Independence. In the preambles of the UN Charter, the Universal Declaration on Human Rights (UDHR), and the two International Covenants, inherent and/or inalienable rights make up the statement of purpose for these most fundamental international documents. Even according to one of the UDHR’s most influential drafters, René Cassin, several delegations wished to include the language of “the divine origin of man” in the document. However, this is exactly where problems begin. Amid one of human rights’ greatest victories, the creation of a common understanding of human rights in the UDHR, a precedent took shape that today threatens the inalienable foundation of human rights.
Cassin, a lauded French-Jewish judge and human rights advocate, writes in his essay “From the Ten Commandments to the Rights of Man” that the intrinsic worth of the individual became separated from its origins in the Ten Commandments and religious dogma and found its new, modern basis among “philosophers, sociologists, and statesmen.” And Cassin is largely correct. The justifications for modern human rights today, especially in the West, rises from various philosophical positions, the moral pragmatism of intellectuals and professors, and from instruments of positive law.
Taken to its logical conclusion, this means the end of inalienable human rights.
Philosophies are as numerous as all the cultures on earth that have ever existed. In which one do we base our support for inalienable human rights, and more importantly, what intrinsic right does a philosophy that respects human rights have to imposes itself on a philosophy that doesn’t respect human rights? (After all, is not the imposition of one culture’s subjective values onto another the definition of colonialism and imperialism?)
As for sociology and academia, that has been far from reliable or even consistent in defending human rights. Philosopher Ravi Zacharias has made the excellent point that the foundations of the Holocaust where not laid in the legislatures or war rooms of the Third Reich, but in the lecture halls and universities of pre-Nazi Germany that championed “racial purity” and social Darwinism. Even in our day, there is hardly a single field of scientific study that can definitively make up its mind when or even whether an unborn baby is “human”—whether it deserves fundamental human rights or not. These are not the people I want deciding whether I deserve fundamental human rights or not.
As for statesmen, the 20th century alone is sufficient basis to explain why finding our fundamental freedoms solely among them is a terrible mistake. Nevertheless, nearly all human rights arguments today find their strongest justifications in the creations of statesmen, in instruments of international law such as the UDHR and the International Covenants. Granted, these documents are amazing achievements and fundamental in the campaign for human rights. Nevertheless, if our understanding of what human rights are comes solely from these documents, detached from anything else, the rights enshrined in them are merely those alienable rights discussed above, rights granted by governments. And what the king, court, or Congress giveth, they can take away.
When human rights lose their transcendent basis, they lose their sacredness; and where there is no sacredness, there is no obligation to respect it. Transcendence literally means to be above, to be higher. Any basis for human rights that fails to rise above purely human thought, science, or policy will fail to create anything other than an alienable right vulnerable to human whim and preference. With a return to Story’s and Jefferson’s principles of a transcendent natural law, we can reassert the universality of human rights in all places at all times for all people. If our human rights never transcend the level of alienable rights, there can be no foundation for them other than the ever-shifting worldviews and ambitions of our fellow man.
 Granted, certain rights such as life and liberty, can be justly deprived under certain circumstances subject to due process, while other rights, such as speech and worship, can never be deprived. But suffice to say for now, even the deprivation of rights is prescribed by natural law.
Colton Grellier is a Juris Doctorate candidate at Liberty University School of Law, pursing a specialization in international law and legal writing. His work with law and human rights includes co-authoring a letter for the congressional Tom Lantos Human Rights Commission concerning the Nigerian Middle Belt conflicts and writing a white paper for the Finnish and Norwegian Embassies on the conflict’s effects on women. He assisted with drafting legislation for former congressman Frank Wolf to appoint a special envoy to the Lake Chad region in 2018. Colton’s areas of interest include the impact of philosophy and multiculturalism on human rights, natural law theory, and historic religious conflicts in Western Europe. Colton currently serves on the board of the International Law Society at his law school as editor of the International Law Bulletin. He graduated Magnum Cum Laude from Liberty University with a Bachelor’s in Business Administration in 2017.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of International Christian Concern or any of its affiliates