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.