Alienating rights
As I prepare to teach my Early Modern Political Thought lecture course again this summer, I've been reviewing some of the themes that I like to highlight. One that I usually prioritize is the theme of giving away or alienating one's rights, central to the social contract theory of the state.
It's an unusual idea. Academic political theorists have become so accustomed to it, I feel that we sometimes fail to appreciate just how unusual it really is. The notion of alienating rights involves a strange mixture of metaphors derived from private law that rests on the dubious assumption that a right may be treated as a thing, like a tangible commodity or any movable asset. The idea seems to be that, just as one may be free to alienate one's property (say, a cow or a jug of olive oil), so too may one be free to alienate one's rights.
But I need to remind students that rights aren't really the same as cows or jugs of olive oil. Losing (or gaining) rights transforms one's own status, one's position with respect to others, in a way that simply losing (or acquiring) a cow or a jug of olive oil does not. This actually is one of the main points that got me motivated to investigate some of the deontic problems associated with rights - conceptualizing rights as merely vessels or 'things' which one can give away, gift, alienate, trade, sell, loan, deliver, etc. in commercial exchanges really misses the point of what rights (or their absence) do to persons and to others.
There's a famous passage in Book I of Rousseau's Social Contract that begins to address this point by way of a comment on a notorious passage in Grotius. Here is Rousseau, questioning the concept of 'alienation' in Grotius:
In a modern English translation (Hackett, translated by Donald Cress):
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Grotius invokes Roman law and Hebraic law to draw an analogy: If it's legally permissible for a free person to alienate all of his rights, and become a slave, to someone else, then it must also be legally permissible for a free and independent nation to alienate all of their sovereign rights, and subject themselves entirely, to another power as its new sovereign. He uses this same language of alienation at an important passage in Book II (II, 11, §4) on 'perfect promises':
When one makes a binding promise to perform something for a promisee, the effect is similar to alienation of ownership [alienatio dominii] because it involves either the alienation of some thing [alienationem rei] or the alienation of some part of our liberty [alienatio particulae cujusdam nostrae libertatis].
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Rousseau makes an insightful observation. 'Alienation' involves either giving or selling [donner ou vendre]. But in this passage in Grotius, it is not alienation in the first sense (of giving), but rather alienation in the second sense (of selling = vendre).
It's worth remembering that Sale is a kind of contract in civil law - perhaps the most important in Roman private law, emptio-venditio. Like all contracts, the effect of a contract is obligation: Parties entering into a Contract of Sale are burdened by duties - whether the duty to pay the agreed-upon price, or the duty to convey. The vital point is that Sale is less about what is exchanged, and entirely about the duties imposed on both parties.
Alienation, then, might be understood as a moment of transformation. The liberty-right (to use a Hohfeldian formulation) that one formerly enjoys prior to the act of alienation immediately dissolves and becomes a duty (that is, to use another Hohfeldian formulation, tied to someone else's correlative 'strict right').
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Alienation is a transformation, a metamorphosis even, from liberty to duty - to use a formulation in Roman law, a change in personal status, like a capitis deminutio. Why, then, do we continue to treat it as a kind of commercial exchange, as if one's right is handed over to someone else? The simple answer, I think, is that it functions as a useful heuristic (Hobbes will make a similar observation in De Cive), just as it did for lawyers.
There's one final thought I want to make. Hohfeld famously defines a legal power as one's ability to alter someone else's duty, whether by creating more duties or by eliminating them (e.g., by forgiving a debt). Grotius does something quite interesting, going even further beyond what I think Hohfeld allows as a genuine legal power. One can have even a 'power over oneself,' as he observes in this famous passage at I, 1, §5:
To have power over oneself [potestas in se] is a kind of strict right, which should be called 'liberty.' So it is more than simply a bare Hohfeldian liberty, but also a power over oneself, the ability to alter one's own position with respect to others. And how does one alter one's jural position? By choosing freely to give up that liberty and burdening oneself with duties owed to others. The private law examples that Grotius uses are helpful in illustrating how legal power operates: marriage, debt, gifts. All of these are legal conditions that one freely enters into. But the effect of entering into them is the obligation tying oneself to another party.
It might be an easy mental shortcut to say that you 'give' your right to someone else - whether to the spouse, the creditor, the donee. But it is a shortcut that blinds us to the more interesting relations of power that re-position people with respect to each other. Getting rid of this shortcut can enable us to move away from this modern habit of treating a right as a tangible, enumerable thing.
