148. Returning from this digression, we resume our consideration of
the nature and functions of the state. In order to understand this
nature, we must understand the nature of those rights which do not
come into being with the state, but arise out of social relations
that may exist where a state is not; it being the first though
not the only office of the state to maintain those rights. They
depend for their existence, indeed, on society, a society of men
who recognise each other as ἴσοι καὶ ὅμοιοι, as capable of a common
well-being, but not on society's having assumed the form of a state.
They may therefore be treated as claims of the individual without
reference to the form of the society which concedes or recognises
them, and on whose recognition, as we have seen, their nature as
rights depends. Only it must be borne in mind that the form in which
these claims are admitted and acted on by men in their dealings with
each other varies with the form of society; that the actual form,
e.g., in which the individual's right of property is admitted under
a patriarchal _régime_ is very different from that in which it is
admitted in a state; and that though the principle of each right is
throughout the same, it is a principle which only comes to be fully
recognised and acted on when the state has not only been formed, but
fully developed according to its idea.
149. The rights which may be treated as independent of the state
in the sense explained are of course those which are commonly
distinguished as _private_, in opposition to _public_ rights. 'If
rights be analysed, they will be found to consist of several kinds.
For, first, they are such as regard a man's own person; secondly,
such as regard his dominion over the external and sensible things by
which he is surrounded; thirdly, such as regard his private relations
as a member of a family; fourthly, such as regard his social state or
condition as a member of the community: the first of which classes
may be designated as _personal rights_; the second, as _rights of
property_; the third, as _rights in private relations_; and the
fourth, as _public rights_.' (Stephen, _Comm_., I, p. 136.)
150. An objection might fairly be made to distinguishing one class
of rights as 'personal,' on the ground that all rights are so;
not merely in the legal sense of 'person' according to which the
proposition is a truism, since every right implies a person as its
subject, but in the moral sense, since all rights depend on that
capacity in the individual for being determined by a conception of
well-being, as an object at once for himself and for others, which
constitutes personality in the moral sense. By personal rights in the
above classification are meant rights of life and liberty, i.e. of
preserving one's body from the violence of other men, and of using
it as an instrument only of one's own will; if of another's, still
only through one's own. The reason why these come to be spoken of
as 'personal' is probably the same with the reason why we talk of a
man's 'person' in the sense simply of his body. They may, however,
be reckoned in a special sense personal even by those who consider
all rights personal, because the person's possession of a body and
its exclusive determination by his own will is the condition of
his exercising any other rights,--indeed, of all manifestation of
personality. Prevent a man from possessing property (in the ordinary
sense), and his personality may still remain. Prevent him (if it were
possible) from using his body to express a will, and the will itself
could not become a reality; he would not be really a person.
151. If there are such things as rights at all, then, there must be a
right to life and liberty, or, to put it more properly, to free life.
No distinction can be made between the right to life and the right
to liberty, for there can be no right to mere life, no right to life
on the part of a being that has not also the right to use the life
according to the motions of its own will. What is the foundation of
this right? The answer is, capacity on the part of the subject for
membership of a society, for determination of the will, and through
it of the bodily organisation, by the conception of a well-being
as common to self with others. This capacity is the foundation of
the right, or the right potentially, which becomes actual through
the recognition of the capacity by a society, and through the power
which the society in consequence secures to the individual of acting
according to the capacity. In principle, or intrinsically, or in
respect of that which it has it in itself to become, the right is
one that belongs to every man in virtue of his human nature (of the
qualities that render him capable of any fellowship with any other
men), and is a right as between him and any other men; because, as
we have seen, the qualities which enable him to act as a member of
any one society having the general well-being of its members for its
object (as distinct from any special object requiring special talent
for its accomplishment) form a capacity for membership of any other
such society; but actually, or as recognised, it only gradually
becomes a right of a man, as man, and against all men.
152. At first it is only a right of the man as a member of some one
particular society, and a right as between him and the other members
of that society, the society being naturally a family or tribe.
Then, as several such societies come to recognise, in some limited
way, a common well-being, and thus to associate on settled terms,
it comes to be a right not merely between the members of any one of
the societies, but between members of the several families or tribes
in their dealings with each other, not, however, as men, but only
as belonging to this or that particular family. This is the state
of things in which, if one man is damaged or killed, compensation
is made according to the terms of some customary law by the family
or tribe of the offender to that of the man damaged or killed, the
compensation varying according to the rank of the family. Upon
this system, generally through some fusion of family demarcations
and privileges, whether through pressure upward of a population
hitherto inferior, or through a levelling effected by some external
power, there supervenes one in which the relation between citizen
and citizen, as such, is substituted for that between family and
family as such. This substitution is one of the essential processes
in the formation of the state. It is compatible, however, with the
closest limitation of the privileges of citizenship, and implies
no acknowledgment in man as man of the right to free life ascribed
to the citizen as citizen. In the ancient world the companion
of citizenship is everywhere slavery, and it was only actual
citizenship, not any such capacity for becoming a citizen as might
naturally be held to be implied in civil birth, that was considered
to give a right to live; for the exposure of children was everywhere
practised [1] (and with the approval of the philosophers), a practice
in strong contrast with the principle of modern law that even a child
in the womb has a right to live.
[1] Tacitus speaks of it as a peculiarity of the Jews and Germans
that they did not allow the killing of younger children (_Hist_.,
V, 5; _Germ_. 19). Aristotle (Pol. 1335, b, 19) enjoins that μηδὲν
πεπηρωμένον shall be brought up, but seems to condemn exposure,
preferring that the required limit of population should be preserved
by destruction of the embryo, on the principle that τὸ ὅσιον καὶ τὸ
μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται Plato's rule is the same
as regards the defective children and the procuring abortion, but he
leaves it in the dark whether he meant any healthy children, actually
born, to be put out of the way (_Rep_. 460 C. and 461 C.).
[Greek μηδὲν πεπηρωμένον (meden peperomenon) = no deformed [child],
τὸ ὅσιον καὶ τὸ μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται (to
hosion kai to me diorismenon te aisthesei kai to zen estai) = what
may lawfully be done in such cases [of children not deformed] depends
on the question of sensation and life Tr]
153. The influences commonly pointed out as instrumental in
bringing about the recognition of rights in the man, as independent
of particular citizenship, are these: (1) The adjudication by
Roman praetors of questions at issue between citizens and those
who were not so, which led to the formation of the system of
'equity,' independent of the old civil law and tending gradually
to be substituted for it. The existence of such a system, however,
presupposes the recognition of rights so far independent of
citizenship in a particular state as to obtain between citizens of
different states. (2) The doctrine of a 'law of nature' applicable
to dealings of all men, popularised by the Stoics. (3) The Christian
conception of the universal redemption of a brotherhood, of which all
could become members through a mental act within the power of all.
154. The admission of a right to free life on the part of every man,
as man, does in fact logically imply the conception of all men as
forming one society in which each individual has some service to
render, one organism in which each has a function to fulfil. There
can be no claim on society such as constitutes a right, except in
respect of a capacity freely (i.e. under determination by conception
of the good) to contribute to its good. If the claim is made on
behalf of any and every human being, it must be a claim on human
society as a whole, and there must be a possible common good of
human society as a whole, conceivable as independent of the special
conditions of particular societies, to render such a claim possible.
We often find, however, that men assimilate a practical idea in
respect of one of its implications without doing so in respect of
the rest. Thus the idea of the individual's right to free life has
been strongly laid hold of in Christendom in what may be called an
abstract or negative way, but little notice has been taken of what
it involves. Slavery is everywhere condemned. It is established that
no one has a right to prevent the individual from determining the
conditions of his own life. We treat life as sacred even in the human
embryo, and even in hopeless idiots and lunatics recognise a right to
live, a recognition which can only be rationally explained on either
or both of two grounds: (1) that we do not consider either their
lives, or the society which a man may freely serve, to be limited to
this earth, and thus ascribe to them a right to live on the strength
of a social capacity which under other conditions may become what
it is not here; or (2) that the distinction between curable and
incurable, between complete and incomplete, social incapacity is so
indefinite that we cannot in any case safely assume it to be such as
to extinguish the right to live. Or perhaps it may be argued that
even in cases where the incapacity is ascertainably incurable, the
patient has still a social function (as undoubtedly those who are
incurably ill in other ways have), a passive function as the object
of affectionate ministrations arising out of family instincts and
memories; and that the right to have life protected corresponds to
this passive social function. The fact, however, that we have almost
to cast about in certain cases for an explanation of the established
belief in the sacredness of human life, shows how deeply rooted that
belief is unless where some counter-belief interferes with it.
155. On the other hand, it is equally noticeable that there are
counter-beliefs which, under conditions, do neutralise it, and that
certain other beliefs, which form its proper complement, have very
slight hold on the mind of modern Christendom. It is taken for
granted that the exigencies of the state in war, whether the war be
necessary or not for saving the state from dissolution, absolutely
neutralise the right to live. We are little influenced by the idea of
the universal brotherhood of men, of mankind as forming one society
with a common good, of which the conception may determine the action
of its members. In international dealings we are apt to suppose that
it can have no place at all. Yet, as has been pointed out, it is
the proper correlative of the admission of a right to free life as
belonging to man in virtue simply of his human nature. And though
this right can only be grounded on the capacity, which belongs to
the human nature, for freely fulfilling some function in the social
organism, we do very little to give reality to the capacity or to
enable it to realise itself. We content ourselves with enacting that
no man shall be used by other men as a means against his will, but we
leave it to be pretty much a matter of chance whether or no he shall
be qualified to fulfil any social function, to contribute anything to
the common good, and to do so freely (i.e. under the conception of a
common good). The only reason why a man should not be used by other
men simply as a means to their ends, is that he should use himself
as a means to an end which is really his and theirs at once. But
while we say that he shall not be used as a means, we often leave him
without the chance of using himself for any social end at all.
156. Four questions then arise: (1) With what right do the
necessities of war override the individual's right of life? (2) In
what relation do the rights of states to act for their own interest
stand to that right of human society, as such, of which the existence
is implied in the possession of right by the individual as a member
of that society, irrespectively of the laws of particular states?
(3) On what principle is it to be assumed that the individual by a
certain conduct of his own forfeits the right of free life, so that
the state (at any rate for a time) is entitled to subject him to
force; to treat him as an animal or a thing? Is this forfeiture ever
so absolute and final that the state is justified in taking away his
life? (4) What is the nature and extent of the individual's claim
to be enabled to realise that capacity for contributing to a social
good, which is the foundation of his right to free life?