This paper has two purposes. One is primarily (but not exclusively) conceptual and the other is normative. The first aim is to say what inalienable rights are. To explain this, inalienable rights are contrasted with the notions of forfeitable rights and absolute rights. A recent novel analysis of inalienable rights by Feinberg is explained and criticized. The first task is concluded by discussing what duties inalienable rights imply. The second aim is to see what moral principles, if any, justify designating (...) some rights as inalienable. The claim of Nozick and others that inalienable rights must be paternalistically grounded is examined and rejected. After a brief critical discussion of the Lockean and Hobbesean accounts of the basis of inalienable rights, it is argued that the harm principle can serve as an adequate ground for categorizing at least the right to life (and perhaps other rights) as inalienable. (shrink)

A TRADITIONAL VIEW OF UTILITY AND RIGHTS According to a conventional view, no project could be more hopelessly misconceived than the enterprise of attempting a utilitarian derivation of fundamental rights. We are all familiar – too familiar, perhaps – with the arguments that support this conventional view, but let us review them anyway. We may begin by recalling that, whereas the defining value of utilitarianism – pleasure, happiness or welfare – contains no mention of the dignity or autonomy of human (...) beings, it is this value which utilitarianism in all its standard forms invokes as the criterion of right action. Worse, insofar as utilitarian policy must have as its goal the maximization of welfare conceived as an aggregate summed over the utilities of everyone affected, legal and political utilitarianism seems bound to have a collectivist bias, trading on the dangerous fiction of a social entity and ignoring the distinctness of separate selves with their several incommensurable claims. It seems that, if individuals can appear in the utilitarian calculus at all, it will only be as ciphers, abstract place-holders for units of welfare. For, as an aggregative value, utility must be indifferent to distribution, and insensitive to the preeminently distributive considerations marked by claims about rights. So, if whatever has utility can be broken down into units or elements which are subject to measurement or at least comparison by a common standard, then it will always be possible that a very great loss of welfare for one man or a few men can be justified if it produces a great many small increments of welfare for a vast multitude of men. (shrink)

The problem of pursuing and achieving justice in a free society involves three different areas of analysis. First, the types of acts that are to be proscribed must be specified. Part of this analysis is methodological, requiring us to settle on the way in which such questions are to be decided. Second, once an offense has been defined, the remedy for its commission must be determined in a manner that is consistent with the theory of justice that defined the criminal (...) act. Finally, the structure of the legal order that will efficiently enforce these principles and at the same time not violate them must be explored. (shrink)