CHAPTER III

THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY OF ACTION FOR

THE INDIVIDUAL

Men are endowed by nature with sundry powers, faculties, capacities,

physical and mental. These, however, are not at all uniform, but are

diverse in kind and degree in different races of men and in different

individuals of the same race. Nature seems to work through diversity

rather than through uniformity, indeed through inequality rather than

through equality. Not all men are born poets, nor are all poets

equally good poets. Not all men are by nature adapted for intellectual

pursuits, and those who are so adapted are not in that respect equally

favored by nature. Even in the field of the simplest manual labor

there is great diversity of natural capacity. It seems to be nature's

theory that mankind, the human race as a whole, will be better served

by diversities, by differences in kinds and degrees of powers, than by

uniformity and equality.

Further, normal men are also by nature endowed, if not with rights,

yet with sundry instincts, desires, passions; also with sundry

feelings, emotions, sentiments; and also with some degree of reason

and power of choice. Some of these may not be apparent in infancy, but

they appear in a greater or less degree of intensity as the individual

develops.

Among these instincts or desires is the desire to live, the desire to

serve each his own welfare and that of his offspring, and the desire

to decide for himself what will best serve that welfare. As a

corollary, he also has by birth the desire for freedom to exercise any

and all of his talents and powers in such manner, to such extent, and

in pursuit of such objects as he prefers, or to be idle if he prefers

idleness. Further, he has the instinct of acquisitiveness, the desire

to appropriate to himself and retain control of such material objects

as he thinks may serve his welfare and that of his offspring, and

especially does he have a natural instinct and desire to possess and

control exclusively for himself whatever, much or little, he has

wrenched from nature or otherwise obtained by the exercise of his

various powers. This instinct is also observable in some animals. A

dog will hide a bone for his own exclusive future use. Man also

instinctively claims for his own the natural increase of what he has

acquired, the young of his beasts, the fruits of his orchard.

This desire for control includes the desire to store up, to use, to

consume, to transfer, and even to destroy at will. This desire is seen

in young children, who will try to clutch and hold whatever attracts

them, and who will hoard or break toys or throw them away as their

whims may be. As they get older the desire to control grows stronger,

for they destroy less and preserve more in order to have greater

measure of control; but still they desire freedom to consume or

destroy at their own will. So strong is this desire of control that

men wish to direct what shall be done with their property after their

death.

If one is balked or hindered in the gratification of any of these

desires, there is excited in him a feeling of resentment against the

cause, even if it be only some force of nature. There is a note of

anger in the cries of a child over interference with his play, the

deprivation of any toy or other thing he may have or desire. That the

wind or the rain was the cause does not sooth him. In the mature man

also, anger adds some force to the kick he gives even inanimate

objects unexpectedly impeding him. Who of us has ever fallen over a

chair in the dark without mentally, at least, consigning it to

perdition? The old law of Deodand was an expression of this feeling of

resentment against inanimate objects even. By that law, according to

Blackstone, whatever chattel was the immediate cause of the death of

a reasonable creature was forfeited to the crown, as when a cart ran

over a man. By the laws of Draco whatever caused a man's death by

falling upon him was to be destroyed or cast out of the community.

Thus a statue having fallen upon a man, it was thrown into the sea.

The Mosaic law savagely declared: "If an ox gore a man that he die,

the ox shall be stoned and his flesh shall not be eaten."

Is not this instinctive feeling of resentment at interference with

one's person, liberty, or property, the rudiment of a later developed

idea, or sentiment, of rights possessed? Resentment is felt only when

one is deprived of something he feels he is entitled to. Granting that

nature has not endowed man with rights, it has imbued him with a

belief that he has rights, and also with a disposition to defend them.

Man is also born into a material world of natural forces, and hence to

gratify his desire to live and serve his own welfare and that of his

offspring, he must adapt himself to his environment, fit himself to

withstand heat and cold, provide himself with food and shelter. He not

only desires to, but he must, exercise his powers of mind and body and

hence should be free to exercise them to that extent at least. Nature

does not feed, clothe and shelter man. It only provides the raw

material which man must himself find, take, and convert by his labor,

manual and intellectual, into food, clothing, shelter, and whatever

else he desires.

But man is also born into association with other men, into some sort

of social organization, and well for him that he is. It is not

society, however ill organized, that has caused, or today causes,

poverty. That is the primitive condition of the human race. It is only

through some social organization ensuring to man freedom for his labor

and security for his savings that he can escape poverty. If each

individual by his own unaided efforts had to find the raw material,

mold it to serve his needs and desires, and also defend it from

attacks by others, his life would be one of dire poverty, scarcely

above that of the higher animals.

Further, nature has so formed man that he not only needs but desires

association with other men. Children instinctively flock together for

common play, and this social instinct continues through life and

extends to work as well as play. We find men everywhere in the

civilized world voluntarily entering into associations for various

purposes thought by the members to be of service to themselves or

others. But there is over and surrounding these associations that

larger association, racial or territorial, which we call society. This

is the necessary association into which man is born and in which he

must live if he desires other than mere animal life. This society must

be maintained if the race of men, as men and not as mere animals, is

to continue. Indeed, society itself has a sort of instinct for

self-preservation. It is not a mere aggregation of individual units

but is an association of sentient correlated beings with a resultant

life and movement of its own.

Association, however, does not extinguish nor appreciably lessen the

natural instincts, desires, feelings, sentiments, etc., of the

individual, though they may be made less active by continued

restraint. Association even extends the scope of man's individual

desires and activities. He now desires freedom to make arrangements

with other men of such nature and for such purposes as he and they may

agree upon. If he is prevented by authority from making such

arrangements he feels some resentment, feels that his right is

infringed. He also comes to desire that those who have entered into

arrangements or contracts with him should perform their part, and he

instinctively feels resentment at their neglect or refusal to do so.

He feels that he has a right to the performance of the contract.

Another desire is developed or given play by society,--the desire to

equal one's fellows in the race for benefits, and, that accomplished,

to excel them. He desires to win in every game, to be the victor in

every contest of physical or mental powers, and in business as well as

in sports. If he is held back he feels resentment against the power

assuming to restrain him. He thus feels he has a right to equal and to

excel if he can. Whether competition should be enforced or stimulated

by society is a question in economics. What affects the question of

rights and hence of justice is whether this desire to excel should be

impeded.

In this association, however, each individual man finds himself in

close contact all through life with other men having like instincts,

desires, feelings, emotions, etc., as his own; and who also feel like

resentments and have like notions of rights possessed. If each is left

by society free to gratify these desires or to enforce his claims of

rights in his own way unmindful how his action may affect others;

if they be left free to "take who have the power" and only they may

"keep who can," society could not exist and civilization, if not the

race, would perish.

Society, therefore, must frame and enforce rules for the regulation

and control of the conduct of its individual members, must even

restrain them to some extent from the gratification of some of their

desires. On the other hand, these instincts, desires, etc., must still

be reckoned with. They cannot be wholly suppressed nor even very much

reduced or impeded if society is to progress or even exist. There must

be left to the individual some degree of liberty of choice and action.

An eminent American jurist, James C. Carter, vividly stated this,

though perhaps in the extreme, when he wrote that the sole function of

law and legislation is to secure to each individual the utmost liberty

which he can enjoy consistently with the preservation of the like

liberty to all others. "Liberty (he wrote), the first of blessings,

the aspiration of every human soul, is the supreme object. Every

abridgment of it demands an excuse, and the only good excuse is the

necessity of preserving it." (Carter's "Law. Its origin and growth,"

page 337.)

There must also be left to the individual some personal motives for

labor and thrift, for, after all, it is the toil of individuals that

supports society and its members. It is the surplus products, not

consumed, but stored up by the economy of individuals that constitutes

the energy of society. However it may be improved in the future, the

nature of the average man today is such that he will not toil and deny

himself without prospect of rewards to accrue to himself for his own

personal use. He will not strive to earn and then conserve his

earnings unless he can have them for his own, to control, use and

dispose of at his pleasure. However it may be with a few unselfish,

devoted souls, men as a rule are not yet so altruistic as to devote

themselves exclusively to the good of others, of society. I think it

evident that if the impelling natural desire to serve one's self be

wholly or even largely disregarded by society, little would be

produced or saved by voluntary labor and self-denial. The alternative

would be the restoration of some system of enforced labor, of slavery,

for the vast majority of men. At this day, after centuries of

exhortation to practise the virtues of benevolence, of brotherly love,

of self-sacrifice for the good of others, men do not from pure love of

humanity voluntarily endure heat and cold, expend their labor and

savings in working mines, in braving seas, in building and operating

factories, railroads and steamships, in growing corn and cotton. Even

those public offices, in which the altruist might find the best

opportunities for serving the people, are not much sought for unless

some personal honor or pecuniary profit be attached to them. Should

society decree that the laborer, whether with hands or brain, should

have no individual reward proportionate to the efficiency of his

labor, but only his numerical proportion of the product of all

laborers, I fear the efficiency of all classes of laborers, manual

and mental, would fall to the "irreducible minimum."

The foregoing statements and inferences lead to the question, how far

should society go in undertaking to regulate the conduct and restrict

the freedom of the individual,--that freedom which would be his if he

were alone in the world? It may be thought that this is a question of

expediency for economists and sociologists, and so it is largely, but

it is also a question of rights and hence of justice, since every

action or non-action of society affects the freedom of the individual

in the gratification of his desires or, in other words, in his pursuit

of happiness.

Concerning Justice · 第 3 / 9 章