April 10, 2017
“Our rights are either alienable or unalienable…our right to our goods and labours is naturally alienable.”
Francis Hutcheson, A System of Moral Philosophy (1755)
revolution in thinking about rights preceded the American Revolution. In the words of George Washington, America’s founding took place during a time “when the rights of mankind were better understood and more clearly defined than at any former period.” The analysis of our rights by Francis Hutcheson (1696-1746), the father of moral sense philosophy, showed the way. It provided the intellectual foundation for two of the greatest achievements in world history: Adam Smith’s The Wealth of Nations, and the Declaration of Independence. Wealth and the Declaration both entered the world they were to transform in 1776, which marks the economic and political boundary between all that went before and the world you and I inhabit.
Hutcheson mentored Adam Smith who, upon the former’s death, was appointed to the prestigious professorship at the University of Glasgow that Hutcheson had held. Hutcheson’s analysis of rights set the direction Smith took with his epoch-making Inquiry into the Nature and Causes of the Wealth of Nations, the book credited with founding modern economics. Smith demonstrated that the division of labor is the source of the wealth of nations. In one of his book’s most famous passages, Smith makes clear the origins of that division: “This division of labour…is the necessary… consequence of a certain propensity in human nature…; the propensity to truck, barter, and exchange one thing for another.”
Our right to our property and labor arises out of the division of labor, and the division of labor depends on the right to exchange (alienate) our property and labor. We can “truck, barter, and exchange” because our right to our property is, as Hutcheson had shown, “naturally alienable.”
Thomas Jefferson championed Hutcheson’s other species of rights, the unalienable ones. Jefferson’s thinking, like Smith’s, was shaped by Hutcheson. It is well known that throughout his life Jefferson held to Hutcheson’s moral sense doctrine. This passage, written in the language of Francis Hutcheson, is taken from a letter to Jefferson’s nephew written in 1787, and repeated almost verbatim in a letter to John Adams 28 years later:
Man was destined for society… He was endowed with a sense of right and wrong merely relative to this. This sense is as much a part of his nature as the sense of hearing, seeing, feeling…The moral sense, or conscience, is as much a part of a man as his leg or arm.
Hutcheson taught that we have unalienable rights, inherent to our being as humans. Our rights to our life and liberty, he taught, are such that we cannot alienate them. By making the case for unalienable rights, Hutcheson challenged John Locke’s account of our rights. Locke had defined our rights in terms of property: “Man…hath by nature a power… to preserve his property—that is, his life, liberty and estate.” According to Hutcheson, our unalienable rights to our life and liberty cannot rightfully be sold or transferred as alienable property can be.
Although our right to our property is naturally alienable, we have an unalienable right to acquire, possess, protect, and exchange property. The Founders’ generation embraced and emphasized this distinction. John Adams inserted this passage in the Massachusetts state constitution:
“All people are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.” [Italics added.]
Notice how Adams carefully follows and adroitly handles Hutcheson’s distinction. Locke’s account has been turned upside down, but deftly. Unalienable rights have replaced property as the overarching concept, but that overturning did not result in the mistaken claim that our right to our property is unalienable. Otherwise, the Declaration might have read “…certain unalienable rights, that among these are Life, Liberty and Property.”
Here are two other passages from state constitutions, showing how the better understanding of our rights George Washington referred to rested on Hutcheson’s analysis:
New Hampshire: “All men have certain natural, essential, and inherent rights—among which are, the enjoying and defending life and liberty; acquiring, possessing and protecting property; and, in a word, of seeking and obtaining happiness.”
Vermont: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” [Italics added.]
As I have discussed elsewhere, Hutcheson’s concept of unalienable rights is a direct challenge to the core of Locke’s political teaching, his doctrine of property. But the analytically precise term “unalienable rights” is much more. In the quoted passage above, Adams described those rights as “natural, essential and unalienable.” In his essay, “Human Rights and the Crisis of the West,” Harry Jaffa pointed out, “the words ‘natural,’ ‘essential,’ and ‘unalienable’ are synonymous. More precisely, they reflect different aspects of an underlying identity.”
Jaffa is certainly correct, but we must recognize that “unalienable” does something for our understanding the other two adjectives cannot. “Our rights are either alienable or unalienable” is a pairing that is both profound and profoundly generative. But neither “Our rights are either natural or unnatural” nor “Our rights are either essential or unessential” offers much of an opening to explore rights’ attributes. Consequently, “unalienable” is the most precise term. The Declaration reads, “ endowed by their Creator with certain unalienable Rights,” which argues that Jefferson certainly thought so.
Preserving the link to Hutcheson’s foundational distinction also reminds us of the Founders’ rejection of primogeniture and entail and of their unrelenting and successful efforts to free America of those restrictions on the natural alienability of property. The new understanding of our rights as either alienable or unalienable provided the foundation for American liberty and for America’s dynamic economy. In the words of economist Hernando De Soto,
The English common law of property was often ill suited to deal with the problems that confronted the colonists… Americans built a new concept of property,’ one that emphasized its dynamic aspects, associating it with economic growth’… American property changed from being a means of preserving an old economic order to being, instead, a powerful tool for creating a new one.
The word “unalienable” is rarely used today. Many who believe they are champions of the Founders’ understanding of our rights instead rely on “natural rights.” If we wish to restore the Founders’ understanding of our rights to their rightful place in America’s understanding of itself, we should consider the possibility that Jefferson and the other Founders were right to hew to Hutcheson’s original formulation. Our debt to Hutcheson by way of Smith and the Founders is beyond reckoning.