1. The subject of this course of lectures is the principles of
political obligation; and that term is intended to include the
obligation of the subject towards the sovereign, the obligation of
the citizen towards the state, and the obligation of individuals
to each other as enforced by a political superior. My purpose is
to consider the moral function or object served by law, or by the
system, of rights and obligations which the state enforces, and in so
doing to discover the true ground or justification for obedience to
law. My plan will be (1) to state in outline what I consider the true
function of law to be, this being at the same time the true ground of
our moral duty to obey the law; and throughout I distinguish moral
duty from legal obligation; (2) to examine the chief doctrines of
political obligation that have been current in modern Europe, and by
criticising them to bring out more clearly the main points of a truer
doctrine; (3) to consider in detail the chief rights and obligations
enforced in civilised states, inquiring what is their justification,
and what is the ground for respecting them on the principle stated.
2. In previous lectures I have explained what I understand moral
goodness to be, and how it is possible that there should be such
a thing; in other words, what are the conditions on the part of
reason and will which are implied in our being able to conceive
moral goodness as an object to be aimed at, and to give some partial
reality to the conception. Our results on this question may be
briefly stated as follows.
The highest moral goodness we found was an attribute of character,
in so far as it issued in acts done for the sake of their goodness,
not for the sake of any pleasure or any satisfaction of desire
which they bring to the agent. But it is impossible that an action
should be done for the sake of its goodness, unless it has been
previously contemplated as good for some other reason than that which
consists in its being done for the sake of its goodness. It must
have been done, or conceived as possible to be done, and have been
accounted good, irrespectively of the being done from this which we
ultimately come to regard as the highest motive. In other words, a
prior morality, founded upon interests which are other than the pure
interest in being good, and governed by rules of conduct relative to
a standard of goodness other than that which makes it depend on this
interest, is the condition of there coming to be a character governed
by interest in an ideal of goodness. Otherwise this ideal would be an
empty one; it would be impossible to say what the good actions were,
that were to be done for the sake of their goodness; and the interest
in this ideal would be impossible, since it would be an interest
without an object.
3. When, however, morality of the latter kind has come to be
recognised as the highest or the only true morality, the prior
morality needs to be criticised from the point of view thus gained.
Those interests, other than the interest in being good, which form
the motives on the part of the individual on which it rests, will
not indeed be rejected as of no moral value; for no one can suppose
that without them, or except as regulating them, the pure interest
in being good could determine conduct at all. But they will be
estimated according to their value as leading up to, or as capable
of becoming elements in, a character in which this interest is the
governing principle. Again, those rules of conduct, according to
which the terms right and wrong, good and bad, are commonly applied,
and which, as was just now said, are relative to a standard certainly
not founded on the conception of the good as consisting in the
character described, are not indeed to be rejected; for without
them there would be nothing to define the duties which the highest
character is prepared to do for their own sake. But they have to be
revised according to a method which inquires into their rationale
or justification, as conditions of approximation to the highest
character.
4. Such a criticism of moral interests--of the general motives
which determine moral conduct and regulate such moral approbation
or disapprobation as is not based on a strict theory of moral
good--may be called by the name of 'a theory of moral sentiments.'
The criticism of recognised rules of conduct will fall under two
heads, according as these rules are embodied in positive law (law of
which the observance is enforced on the individual by a political
superior), or only form part of the 'law of opinion' (part of what
the individual feels to be expected of him by some person or persons
to whose expectations he ought to conform).
5. Moral interests are so greatly dependent on generally recognised
rules of conduct that the criticism of the latter should come
first. The law of opinion, again, in so many ways presupposes a
social fabric supported by 'positive' law, that we can only fairly
take account of it when we have considered the moral value and
justifiability of the fabric so supported. I propose therefore to
begin our inquiry into the detail of goodness--into the particular
kinds of conduct which the man wishing to do good for the sake
of its goodness is entitled to count good--by considering what
is of permanent moral value in the institutions of civil life,
as established in Europe; in what way they have contributed and
contribute to the possibility of morality in the higher sense of
the term, and are justified, or have a moral claim upon our loyal
conformity, in consequence.
6. The condition of a moral life is the possession of will and
reason. Will is the capacity in a man of being determined to action
by the idea of a possible satisfaction of himself. An act of
will is an action so determined. A state of will is the capacity
as determined by the particular objects in which the man seeks
self-satisfaction; and it becomes a character in so far as the
self-satisfaction is habitually sought in objects of a particular
kind. Practical reason is the capacity in a man of conceiving the
perfection of his nature as an object to be attained by action.
All moral ideas have their origin in reason, i.e. in the idea of a
possible self-perfection to be attained by the moral agent. This
does not mean that the moral agent in every stage of his progress
could state this idea to himself in an abstract form, any more
than in every stage in the acquisition of knowledge about nature a
man can state to himself in an abstract form the conception of the
unity of nature, which yet throughout conditions the acquisition of
his knowledge. Ideas do not first come into existence, or begin to
operate, upon the formation of an abstract expression for them. This
expression is only arrived at upon analysis of a concrete experience,
which they have rendered possible. Thus we only learn to express the
idea of self-perfection in that abstract form upon an analysis of an
experience of self-improvement which we have ourselves gone through,
and which must have been gone through by those with whom we are
connected by the possession of language and an organisation of life,
however elementary: but the same analysis shows that the same idea
must have been at work to make such experience possible. In this idea
all particular moral ideas--all ideas of particular forms of conduct
as estimable--originate, though an abstract expression for the latter
is arrived at much sooner than such an expression for the idea in
which they originate. They arise, as the individual's conception of
the society on the well-being of which his own depends, and of the
constituents of that well-being, becomes wider and fuller; and they
are embodied in the laws, institutions, and social expectation, which
make conventional morality. This embodiment, again, constitutes the
moral progress of mankind. This progress, however, is only a _moral_
progress in so far as it tends to bring about the harmony of will and
reason, in the only form in which it can really exist, viz. in the
characters of persons. And this result is actually achieved, in so
far as upon habits disciplined by conformity to conventional morality
there supervenes an intelligent interest in some of the objects
contributory to human perfection, which that conventional morality
subserves, and in so far as that interest becomes the dominant
interest of the character.
7. The value then of the institutions of civil life lies in their
operation as giving reality to these capacities of will and reason,
and enabling them to be really exercised. In their general effect,
apart from particular aberrations, they render it possible for a
man to be freely determined by the idea of a possible satisfaction
of himself, instead of being driven this way and that by external
forces, and thus they give reality to the capacity called will:
and they enable him to realise his reason, i.e. his idea of
self-perfection, by acting as a member of a social organisation in
which each contributes to the better-being of all the rest. So far
as they do in fact thus operate they are morally justified, and may
be said to correspond to the 'law of nature,' the _jus naturae_,
according to the only sense in which that phrase can be intelligibly
used.
8. There has been much controversy as to what the _jus naturae_
('Naturrecht') really is, or whether there is such a thing at all.
And the controversy, when it comes to be dealt with in English, is
further embarrassed by the fact that we have no one term to represent
the full meaning of 'jus' or 'Recht,' as a system of correlative
rights and obligations, actually enforced or that should be enforced
by law. But the essential questions are: (1) whether we are entitled
to distinguish the rights and obligations which are anywhere actually
enforced by law from rights and obligations which really exist though
not enforced; and (2), if we are entitled to do so, what is to be
our criterion of rights and obligations which are really valid, in
distinction from those that are actually enforced.
9. No one would seriously maintain that the system of rights and
obligations, as it is anywhere enforced by law,--the 'jus' or 'Recht'
of any nation--is all that it ought to be. Even Hobbes holds that
a law, though it cannot be unjust, may be pernicious. But there
has been much objection to the admission of _natural_ rights and
obligations. At any rate the phrase is liable to misinterpretation.
It may be taken to imply that rights and obligations can exist in a
'state of nature'--a state in which every individual is free to do as
he likes--; that legal rights and obligations derive their authority
from a voluntary act by which individuals contracted themselves
out of this state; and that the individual retains from the state
of nature certain rights with which no legal obligations ought to
conflict. Such a doctrine is generally admitted to be untenable; but
it does not follow from this that there is not a true and important
sense in which natural rights and obligations exist,--the same sense
as that in which duties may be said to exist though unfulfilled.
There is a system of rights and obligations which _should be_
maintained by law, whether it is so or not, and which may properly be
called 'natural'; not in the sense in which the term 'natural' would
imply that such a system ever did exist or could exist independently
of force exercised by society over individuals, but 'natural' because
necessary to the end which it is the vocation of human society to
realise.
10. The 'jus naturae,' thus understood, is at once distinguished from
the sphere of moral duty, and relative to it. It is distinguished
from it because admitting of enforcement by law. Moral duties do not
admit of being so enforced. The question sometimes put, whether moral
duties should be enforced by law, is really an unmeaning one; for
they simply cannot be enforced. They are duties to act, it is true,
and an act can be enforced: but they are duties to act from certain
dispositions and with certain motives, and these cannot be enforced.
Nay, the enforcement of an outward act, the moral character of which
depends on a certain motive and disposition, may often contribute to
render that motive and disposition impossible: and from this fact
arises a limitation to the proper province of law in enforcing acts,
which will have to be further considered below. When obligations
then are spoken of in this connection, as part of the 'jus naturae'
correlative to rights, they must always be understood not as moral
duties, not as relative to states of will, but as relative to
outward acts, of which the performance or omission can and should
be enforced. There is a moral duty to discharge such obligations,
and to do so in a certain spirit, but the obligation is such as that
with which law has to do or may have to do, is relative to an outward
act merely, and does not amount to a moral duty. There is a moral
duty in regard to obligations, but there can be no obligation in
regard to moral duties. Thus the 'jus naturae'--the system of rights
and obligations, as it should become no less than as it actually is
maintained--is distinct from morality in the proper sense. But it is
relative to it. This is implied in saying that there is a moral duty
in regard to actual obligations, as well as in speaking of the system
of rights and obligations as it should become. If such language is
justifiable, there must be a moral ground both for conforming to, and
for seeking to develope and improve, established 'Recht'; a moral
ground which can only lie in the moral end served by that established
system.
11. Thus we begin the ethical criticism of law with two
principles:--(1) that nothing but external acts can be matter of
'obligation' (in the restricted sense); and (2) that, in regard
to that which can be made matter of obligation, the question what
should be made matter of obligation--the question how far rights and
obligations, as actually established by law, correspond to the true
'jus naturae'--must be considered with reference to the moral end, as
serving which alone law and the obligations imposed by law have their
value.[1]
[1] There are two definitions of 'Recht' or 'jus naturae,' quoted
by Ulrici (_Naturrecht_, p. 219), which embody the truths conveyed
in these statements. (1) Krause defines 'Recht' as 'das organische
Ganze der äusseren Bedingungen des Vernunftlebens,' 'the organic
whole of the outward conditions necessary to the rational life.' (2)
Henrici says that 'Recht' is 'was der Idee der Unverletzbarkeit der
materiellen wesentlichen Bedingungen des moralischen Menschenthums,
d. h. der menschlichen Persönlichkeit nach ihrer Existenz und
ihrer Vervollkommnung, oder der unveräusserlichen Menschengüter im
äusserlichen Verkehr entspricht': i.e. 'Right is what' (or, 'that
is properly matter of legal obligation which') 'in the outward
intercourse of men corresponds to the idea of the inviolability of
the essential material conditions of a moral humanity, i.e. of the
human personality in respect of its existence and its perfection;'
or, more simply, 'Right is that which is really necessary to the
maintenance of the material conditions essential to the existence and
perfection of human personality.' Cf. Trendelenburg, _Naturrecht_,
Sect. 46. 'Das Recht ist im sittlichen Ganzen der Inbegriff
derjenigen allgemeinen Bestimmungen des Handelns, durch welche es
geschieht dass das sittliche Ganze und seine Gliederung sich erhalten
und weiter bilden kann.' Afterwards he emphasises the words 'des
Handelns,' and adds: 'Zwar kann das Handeln nicht ohne den Willen
gedacht werden, der zum Grunde liegt: aber die Rechtbestimmungen
sind nicht Bestimmungen des Willens als solchen, was dem innern
Gebiet, der Ethik der Gesinnung, anheimfallen würde. Der Wille der
nicht Handlung wird entzieht sich dem Recht. Wenn das Recht Schuld
und Versehen, _dolus_ und _culpa_, in sein Bereich zieht, so sind
sie als innere aber charakteristische Beschaffenbeiten des Handelns
anzusehen.'
12. Before proceeding, some remarks have to be made as to what is
implied in these principles, _(a)_ Does the law, or is it possible
that it should, confine its view to external acts? What exactly is
meant by an external act? In the case of obligations which I am
legally punishable for disregarding, the law, in deciding whether
punishment is or is not due, takes account of much beside the
external act; and this implies that much beside external action
is involved in legal obligation. In the case where the person or
property of another is damaged by me, the law does not inquire
merely whether the act of damage was done, and done by means of my
bodily members, but whether it was done intentionally: and if not
done with the direct intention of inflicting the damage, whether
the damage arose in a manner that might have been foreseen out of
something which I did intend to do: whether, again, if it was done
quite accidentally the accident was due to culpable negligence. This,
however, does not show that the law can enforce or prevent anything
but external action, but only that it is _action_ which it seeks to
enforce or prevent, for without intention there is no action. We talk
indeed of a man acting against his will, but if this means acting
against intention it is what it is impossible to do. What I call an
act done against my will is either (1) an act done by someone else
using my body, through superior force, as a means: in which case
there is an act, but it is not mine (e.g. if another uses my hand
to pull the trigger of a gun by which someone is shot); or (2) a
natural event in which my limbs are affected in a certain way which
causes certain results to another person (e.g. if the rolling of a
ship throws me against another person who is thus thrown into the
water); or (3) an act which I do under the influence of some strong
inducement (e.g. the fear of death), but which is contrary to some
strong wish. In this case the act is mine, but mine because I intend
it; because it is not against my will as = intention. In saying,
then, that the proper, because the only possible, function of law is
to enforce the performance of or abstinence from external actions,
it is implied that its function is to produce or prevent certain
intentions, for without intention on the part of someone there is no
act.
13. But if an act necessarily includes intention, what is the nature
of the restriction implied in calling it external? An external action
is a determination of will as exhibited in certain motions of the
bodily members which produce certain effects in the material world;
not a determination of the will as arising from certain motives
and a certain disposition. All that the law can do is to enjoin or
forbid determinations of will as exhibited in such motions, &c. It
does indeed present a motive, for it enforces its injunctions and
prohibitions primarily by fear, by its threat of certain consequences
if its commands are disobeyed. This enforcement is not an exercise
of physical force in the strict sense, for in this sense no force
can produce an action, since it cannot produce a determination of
will; and the only way in which the law or its administrators employ
such force is not in the production but in the prevention of action
(as when a criminal is locked up or the police prevent mischievous
persons from assaulting us or breaking into our houses). But though,
in enforcing its commands by threats, the law is presenting a motive,
and thus, according to our distinction, affecting action on its
inner side, it does this solely for the sake of the external act. It
does not regard the relation of the act to the motive fear as of any
intrinsic importance. If the action is performed without this motive
ever coming into play under the influence of what the moralist counts
higher motives, the purpose of the law is equally satisfied. Indeed,
it is always understood that its purpose is most thoroughly served
when the threat of pains and penalties has ceased to be necessary,
and the obligations correlative to the relations of individuals and
of societies are fulfilled from other motives. Its business is to
maintain certain conditions of life--to see that certain actions are
done which are necessary to the maintenance of those conditions,
others omitted which would interfere with them. It has nothing to do
with the motive of the actions or omissions, on which, however, the
moral value of them depends.
14. It appears, then, that legal obligations--obligations which can
possibly form the subject of positive law--can only be obligations to
do or abstain from certain acts, not duties of acting from certain
motives, or with a certain disposition. It is not a question whether
the law should or should not oblige to anything but performance of
outward acts. It simply cannot oblige to anything else, because the
only means at its command for obtaining the fulfilment of obligations
are (1) threats of pain and offers of reward, by means of which it is
possible indeed to secure the general performance of certain acts,
but not their performance from the motive even of fear of the pain
threatened or hope of the reward offered, much less from any higher
motive; (2) the employment of physical force, _(a)_ in restraining
men disposed to violate obligations, _(b)_ in forcibly applying the
labour or the property of those who violate obligations to make good
the breach, so far as is possible: (as, e.g., when the magistrate
forestalls part of a man's wages to provide for a wife whom he has
deserted, or when the property of a debtor is seized for the benefit
of his creditors.)
15. Only outward acts, then, _can_ be matter of legal obligation; but
what sort of outward acts _should_ be matter of legal obligation?
The answer to this question arises out of the above consideration of
the means which law employs to obtain the fulfilment of obligations,
combined with the view of law as relative to a moral end, i.e. the
formation of a society of persons, acting from a certain disposition,
from interest in the society as such. Those acts only should be
matter of legal injunction or prohibition of which the performance or
omission, irrespectively of the motive from which it proceeds, is so
necessary to the existence of a society in which the moral end stated
can be realised, that it is better for them to be done or omitted
from that unworthy motive which consists in fear or hope of legal
consequences than not to be done at all.
16. We distinguish, then, the system of rights actually maintained
and obligations actually enforced by legal sanctions ('Recht' or
'jus') from the system of relations and obligations which _should be_
maintained by such sanctions ('Naturrecht'); and we hold that those
actions or omissions should be made obligations which, when made
obligations, serve a certain moral end; that this end is the ground
or justification or rationale of legal obligation; and that thus we
obtain a general rule, of both positive and negative application, in
regard to the proper matter or content of legal obligation. For since
the end consists in action proceeding from a certain disposition,
and since action done from apprehension of legal consequences does
not proceed from that disposition, no action should be enjoined or
prohibited by law of which the injunction or prohibition interferes
with actions proceeding from that disposition, and every action
should be so enjoined of which the performance is found to produce
conditions favourable to action proceeding from that disposition, and
of which the legal injunction does not interfere with such action.
17. Does this general rule give any real guidance in the difficulties
which practically arise in regard to the province of law--as to
what should be required by law, and what left to the inclination of
individuals? What cases are there or have there been of enactments
which on this principle we can pronounce wrong? Have attempts ever
been made by law to enforce acts as virtuous which lose their virtue
when done under fear of legal penalties? It would be difficult, no
doubt, to find instances of attempts to enforce by law actions of
which we should say that the value lies in the disposition from which
they are done, actions, e.g. of disinterested kindness, because the
clear conception of virtue as depending not on outward results,
but on disposition, is but slowly arrived at, and has never been
reflected in law. But without any strictly moral object at all, laws
have been made which check the development of the moral disposition.
This has been done _(a)_ by legal requirements of religious
observance and profession of belief, which have tended to vitiate the
religious source of morality; _(b)_ by prohibitions and restraints,
unnecessary, or which have ceased to be necessary, for maintaining
the social conditions of the moral life, and which interfere with the
growth of self-reliance, with the formation of a manly conscience and
sense of moral dignity,--in short, with the moral autonomy which is
the condition of the highest goodness; _(c)_ by legal institutions
which take away the occasion for the exercise of certain moral
virtues (e.g. the Poor-law which takes away the occasion for the
exercise of parental forethought, filial reverence, and neighbourly
kindness).
18. Laws of this kind have often been objected to on the strength
of a one-sided view of the function of laws; the view, viz., that
its only business is to prevent interference with the liberty of
the individual. And this view has gained undue favour on account of
the real reforms to which it has led. The laws which it has helped
to get rid of were really mischievous, but mischievous for further
reasons than those conceived of by the supporters of this theory.
Having done its work, the theory now tends to become obstructive,
because in fact advancing civilisation brings with it more and
more interference with the liberty of the individual to do as he
likes, and this theory affords a reason for resisting all positive
reforms, all reforms which involve an action of the state in the way
of promoting conditions favourable to moral life. It is one thing
to say that the state in promoting these conditions must take care
not to defeat its true end by narrowing the region within which the
spontaneity and disinterestedness of true morality can have play;
another thing to say that it has no moral end to serve at all, and
that it goes beyond its province when it seeks to do more than secure
the individual from violent interference by other individuals. The
true ground of objection to 'paternal government' is not that it
violates the 'laissez faire' principle and conceives that its office
is to make people good, to promote morality, but that it rests on a
misconception of morality. The real function of government being to
maintain conditions of life in which morality shall be possible, and
morality consisting in the disinterested performance of self-imposed
duties, 'paternal government' does its best to make it impossible by
narrowing the room for the self-imposition of duties and for the play
of disinterested motives.
19. The question before us, then, is, In what ways and how far do
the main obligations enforced and rights maintained by law in all
civilised societies contribute to the moral end described; viz.
to establish those conditions of life in which a true, i.e. a
disinterested or unselfish morality shall be possible? The answer
to this question will be a theory of the 'jus naturae'; i.e. it
will explain how far positive law is what it should be, and what
is the ground of the duty to obey it; in other words, of political
obligation. There are two things from which such a theory must be
distinguished. (1) It is not an inquiry into the process by which
actual law came to be what it is; nor (2) is it an inquiry how far
actual law corresponds to and is derived from the exercise of certain
original or natural rights. (1) It is not the former, because the
process by which the law of any nation and the law in which civilised
nations agree has come to be what it is, has not been determined
by reference to that end to which we hold that law ought to be
directed and by reference to which we criticise it. That is to say,
the process has not been determined by any such conscious reference
on the part of the agents in the process. No doubt a desire for
social good as distinct from private pleasure, for what is good on
the whole as distinct from what is good for the moment, has been a
necessary condition of it; but _(a)_, as an agent in the development
of law, this has not reached the form of a conception of moral good
according to that definition of it by which the value of law is to be
estimated; and _(b)_ in bringing law to its present state it has been
indistinguishably blended with purely selfish passions and with the
simple struggle for existence.
20. (2) A true theory of 'jus naturae,' a rationale of law or ideal
of what it should be, is not to be had by inquiring how far actual
law corresponds to, and is derived from, the exercise of certain
original or natural rights, if that is taken to mean that we know,
or can ascertain, what rights are natural on grounds distinct from
those on which we determine what laws are justifiable, and that then
we can proceed to ascertain what laws are justifiable by deduction
from such rights. 'Natural rights,' so far as there are such things,
are themselves relative to the moral end to which perfect law is
relative. A law is not good because it enforces 'natural rights,'
but because it contributes to the realisation of a certain end. We
only discover what rights are natural by considering what powers
must be secured to a man in order to the attainment of this end.
These powers a perfect law will secure to their full extent. Thus the
consideration of what rights are 'natural' (in the only legitimate
sense) and the consideration what laws are justifiable form one
and the same process, each presupposing a conception of the moral
vocation of man.
21. The doctrine here asserted, that all rights are relative to moral
ends or duties, must not be confused with the ordinary statement
that every right implies a duty, or that rights and duties are
correlative. This of course is true in the sense that possession
of a right by any person both implies an obligation on the part of
someone else, and is conditional upon the recognition of certain
obligations on the part of the person possessing it. But what is
meant is something different, viz. that the claim or right of the
individual to have certain powers secured to him by society, and
the counter-claim of society to exercise certain powers over the
individual, alike rest on the fact that these powers are necessary to
the fulfilment of man's vocation as a moral being, to an effectual
self-devotion to the work of developing the perfect character in
himself and others.
22. This, however, is not the ground on which the claim in question
has generally been asserted. Apart from the utilitarian theory, which
first began to be applied politically by Hume, the ordinary way of
justifying the civil rights of individuals (i.e. the powers secured
to them by law as against each other), as well as the rights of the
state against individuals (i.e. the powers which, with the general
approval of society, it exercises against them), has been to deduce
them from certain supposed prior rights, called natural rights. In
the exercise of these natural rights, it has been supposed, men with
a view to their general interest established political society.
From that establishment is derived both the system of rights and
obligations maintained by law as between man and man, and the right
of the state to the submission of its subjects. If the question,
then, is raised, why I ought to respect the legal rights of my
neighbours, to pay taxes, or have my children vaccinated, serve in
the army if the state requires it, and generally submit to the law,
the answer according to this theory will be that if I fail to do
so, I shall directly or indirectly be violating the natural rights
of other men; directly in those cases where the legal rights of my
neighbours are also natural rights, as they very well may be (e.g.
rights of liberty or personal safety); indirectly where this is not
the case, because, although the rights of the state itself are not
natural, and many rights exercised by individuals would not only
not be secured but would not exist at all but for legal enactment,
yet the state itself results from a covenant which originally, in
the exercise of their natural rights, men made with each other,
and to which all born under the state and sharing the advantages
derived from it must be considered parties. There is a natural right,
therefore, on the part of each member of a state to have this compact
observed, with a corresponding obligation to observe it; and this
natural right of all is violated by any individual who refuses to
obey the law of the state or to respect the rights, not in themselves
natural, which the state confers on individuals.
23. This, on the whole, was the form in which the ground of political
obligation, the justification of established rights, was presented
throughout the seventeenth century, and in the eighteenth till the
rise of the 'utilitarian' theory of obligation. Special adaptations
of it were made by Hobbes and others. In Hobbes, perhaps (of whom
more later), may be found an effort to fit an anticipation of the
utilitarian theory of political obligation into the received theory
which traced political obligation, by means of the supposition of
a primitive contract, to an origin in natural right. But in him as
much as anyone the language and framework of the theory of compact
is retained, even if an alien doctrine may be read between the
lines. Of the utilitarian theory of political obligation more shall
be said later. It may be presented in a form in which it would
scarcely be distinguishable from the doctrine just now stated, the
doctrine, viz., that the ground of political obligation, the reason
why certain powers should be recognised as belonging to the state
and certain other powers as secured by the state to individuals,
lies in the fact that these powers are necessary to the fulfilment
of man's vocation as a moral being, to an effectual self-devotion
to the work of developing the perfect character in himself and
others. Utilitarianism proper, however, recognises no vocation of
man but the attainment of pleasure and avoidance of pain. The only
reason why civil rights should be respected--the only justification
of them--according to it, would be that more pleasure is attained
or pain avoided by the general respect for them; the ground of our
consciousness that we ought to respect them, in other words their
ultimate sanction, is the fear of what the consequences would be if
we did not. This theory and that which I deem true have one negative
point in common. They do not seek the ground of actual rights in a
prior natural right, but in an end to which the maintenance of the
rights contributes. They avoid the mistake of identifying the inquiry
into the ultimate justifiability of actual rights with the question
whether there is a prior right to the possession of them. The right
to the possession of them, if properly so called, would not be a
mere power, but a power recognised by a society as one which should
exist. This recognition of a power, in some way or other, as that
which should be, is always necessary to render it a right. Therefore
when we had shown that the rights exercised in political society were
derived from prior 'natural' rights, a question would still remain
as to the ground of those natural rights. We should have to ask why
certain powers were recognised as powers which should be exercised,
and thus became these natural rights.
24. Thus, though it may be possible and useful to show how the more
seemingly artificial rights are derived from rights more simple and
elementary, how the rights established by law in a political society
are derived from rights that may be called natural, not in the
sense of being prior to society, but in the sense of being prior to
the existence of a society governed by written law or a recognised
sovereign, still such derivation is no justification of them. It is
no answer to the question why they should be respected; because this
question remains to be asked in regard to the most primitive rights
themselves. Political or civil rights, then, are not to be explained
by derivation from natural rights, but in regard to both political
and natural rights, in any sense in which there can be truly said
to be natural rights, the question has to be asked, how it is that
certain powers are recognised by men in their intercourse with each
other as powers that should be exercised, or of which the possible
exercise should be secured.
25. I have tried to show in lectures on morals that the conception
expressed by the 'should be' is not identical with the conception of
a right possessed by some man or men, but one from which the latter
conception is derived. It is, or implies on the part of whoever is
capable of it, the conception of an ideal, unattained condition of
himself, as an absolute end. Without this conception the recognition
of a power as a right would be impossible. A power on the part of
anyone is so recognised by others, as one which should be exercised,
when these others regard it as in some way a means to that ideal
good of themselves which they alike conceive: and the possessor of
the power comes to regard it as a right through consciousness of
its being thus recognised as contributory to a good in which he too
is interested. No one therefore can have a right except (1) as a
member of a society, and (2) of a society in which some common good
is recognised by the members of the society as their own ideal good,
as that which should be for each of them. The capacity for being
determined by a good so recognised is what constitutes personality
in the ethical sense; and for this reason there is truth in saying
that only among persons, in the ethical sense, can there come to be
rights; (which is quite compatible with the fact that the logical
disentanglement of the conception of rights precedes that of the
conception of the legal person; and that the conception of the moral
person, in its abstract and logical form, is not arrived at till
after that of the legal person).
Conversely, everyone capable of being determined by the conception of
a common good as his own ideal good, as that which unconditionally
should be (of being in that sense an end to himself), in other
words, every moral person, is capable of rights; i.e. of bearing
his part in a society in which the free exercise of his powers is
secured to each member through the recognition by each of the others
as entitled to the same freedom with himself. To say that he is
capable of rights, is to say that he ought to have them, in that
sense of 'ought' in which it expresses the relation of man to an
end conceived as absolutely good, to an end which, whether desired
or no, is conceived as intrinsically desirable. The moral capacity
implies a consciousness on the part of the subject of the capacity
that its realisation is an end desirable in itself, and rights are
the condition of realising it. Only through the possession of rights
can the power of the individual freely to make a common good his own
have reality given to it. Rights are what may be called the negative
realisation of this power. That is, they realise it in the sense of
providing for its free exercise, of securing the treatment of one
man by another as equally free with himself, but they do not realise
it positively, because their possession does not imply that in any
active way the individual makes a common good his own. The possession
of them, however, is the condition of this positive realisation of
the moral capacity, and they ought to be possessed because this end
(in the sense explained) ought to be attained.
26. Hence on the part of every person ('person' in the moral sense
explained) the claim, more or less articulate and reflected on, to
rights on his own part is co-ordinate with his recognition of rights
on the part of others. The capacity to conceive a common good as
one's own, and to regulate the exercise of one's powers by reference
to a good which others recognise, carries with it the consciousness
that powers should be so exercised; which means that there should be
rights, that powers should be regulated by mutual recognition. There
ought to be rights, because the moral personality,--the capacity on
the part of an individual for making a common good his own,--ought
to be developed; and it is developed through rights; i.e. through
the recognition by members of a society of powers in each other
contributory to a common good, and the regulation of those powers by
that recognition.
27. In saying that only among 'persons' can there come to be rights,
and that every 'person' should have rights, I have been careful to
explain that I use 'person' in the moral, not merely in the legal,
sense. In dealing, then, with such phrases as 'jura personarum'
and 'personal rights,' we must keep in view the difference between
the legal and ethical sense of the proposition that all rights are
personal, or subsist as between persons. In the legal sense, so far
as it is true,--and it is so only if 'person' is used in the sense
of Roman law,--it is an identical proposition. A person means a
subject of rights and nothing more. Legal personality is derived
from the possession of right, not _vice versa_. Like other identical
propositions, its use is to bring out and emphasise in the predicate
what is included in the understood connotation of the subject; to
remind us that when we speak of rights we imply the existence of
parties, in English phraseology, capable of suing and being sued.
In the ethical sense, it means that rights are derived from the
possession of personality as = a rational will (i.e. the capacity
which man possesses of being determined to action by the conception
of such a perfection of his being as involves the perfection of a
society in which he lives), in the sense _(a)_ that only among beings
possessed of rational will can there come to be rights, _(b)_ that
they fulfil their idea, or are justifiable, or such rights as should
be rights, only as contributing to the realisation of a rational
will. It is important to bear this distinction in mind in order that
the proposition in its ethical sense, which can stand on its own
merits, may not derive apparent confirmation from a juristic truism.
28. The moral idea of personality is constantly tending to affect
the legal conception of the relation between rights and persons.
Thus the 'jura personarum,' which properly = either rights arising
out of 'status,' or rights which not only (like all rights) reside
in someone having a legal status and are available against others
having a legal status, but are exercised over, or in respect of,
someone possessed of such status (e.g. a wife or a servant), come
to be understood as rights derived from the human personality or
belonging to man as man. It is with some such meaning that English
writers on law speak of rights to life and liberty as personal
rights. The expression might seem pleonastic, since no right can
exist except as belonging to a person in the legal sense. They do not
use the phrase either pleonastically or in the sense of the Roman
lawyers' 'jura personarum' above, but in the sense that these rights
are immediately derived from, or necessarily attach to, the human
personality in whatever that personality is supposed to consist.
There is no doubt, however, that historically the conception of the
moral person, in any abstract form, is not arrived at till after
that of the legal person has been thus disentangled and formulated;
and further that the abstract conception of the legal person, as the
sustainer of rights, is not arrived at till long after rights have
been actually recognised and established. But the disentanglement
or abstract formulation of the conception of moral personality is
quite a different thing from the action of the consciousness in which
personality consists.
29. The capacity, then, on the part of the individual of conceiving a
good as the same for himself and others, and of being determined to
action by that conception, is the foundation of rights; and rights
are the condition of that capacity being realised. No right is
justifiable or should be a right except on the ground that directly
or indirectly it serves this purpose. Conversely every power should
be a right, i.e. society should secure to the individual every power,
that is necessary for realising this capacity. Claims to such powers
as are directly necessary to a man's acting as a moral person at
all--acting under the conception of a good as the same for self and
others--may be called in a special sense personal rights (though they
will include more than Stephen includes under that designation); they
may also be called, if we avoid misconceptions connected with these
terms, 'innate' or 'natural' rights. They are thus distinguished from
others which are (1) only indirectly necessary to the end stated, or
(2) are so only under special conditions of society; as well as from
claims which rest merely on legal enactment and might cease to be
enforced without any violation of the 'jus naturae.'
30. The objection to calling them 'innate' or 'natural,' when
once it is admitted on the one side that rights are not arbitrary
creations of law or custom but that there are certain powers which
ought to be secured as rights, on the other hand that there are no
rights antecedent to society, none that men brought with them into a
society which they contracted to form, is mainly one of words. They
are 'innate' or 'natural' in the same sense in which according to
Aristotle the state is natural: not in the sense that they actually
exist when a man is born and that they have actually existed as long
as the human race, but that they arise out of, and are necessary for
the fulfilment of, a moral capacity without which a man would not be
a man. There cannot be innate rights in any other sense than that in
which there are innate duties, of which, however, much less has been
heard. Because a group of beings are capable each of conceiving an
absolute good of himself and of conceiving it to be good for himself
as identical with, and because identical with, the good of the rest
of the group, there arises for each a consciousness that the common
good should be the object of action, i.e. a duty, and a claim in each
to a power of action that shall be at once secured and regulated by
the consciousness of a common good on the part of the rest, i.e. a
right. There is no ground for saying that the right arises out of a
primary human capacity, and is thus 'innate,' which does not apply
equally to the duty.
31. The dissociation of innate rights from innate duties has gone
along with the delusion that such rights existed apart from society.
Men were supposed to have existed in a state of nature, which was
not a state of society, but in which certain rights attached to
them as individuals, and then to have formed societies by contract
or covenant. Society having been formed, certain other rights arose
through positive enactment; but none of these, it was held, could
interfere with the natural rights which belonged to men antecedently
to the social contract or survived it.
Such a theory can only be stated by an application to an imaginary
state of things, prior to the formation of societies as regulated
by custom or law, of terms that have no meaning except in relation
to such societies. 'Natural right,' as = right in a state of nature
which is not a state of society, is a contradiction. There can be
no right without a consciousness of common interest on the part of
members of a society. Without this there might be certain powers on
the part of individuals, but no recognition of these powers by others
as powers of which they allow the exercise, nor any claim to such
recognition; and without this recognition or claim to recognition
there can be no right.