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The second document is the Declaration of the Rights of Man and of Citizens adopted by the National Assembly of France, in 1789. “Considering that ignorance, neglect, and contempt of human rights are the sole causes of public misfortunes and corruptions of government,” they “set forth in a solemn declaration these natural, imprescriptible and inalienable rights, in order that, this declaration being constantly present to their minds, the members of the social body may be ever kept attentive to their rights and to their duties,” etc. The following are some of the rights of man and of citizens :
1. Men are born and always continue free and equal in respect of their rights. Civil distinctions therefore can only be founded on public utility.
2. The end of all political associations is the preservation of the natural righis of man, and these are liberty, property, security, and resistance to oppression.
3. The nation is the source of all sovereignty.
4. Political liberty consists in the power of doing whatever does not injure others.
5. The law ought to prohibit only actions hurtful to society,
There is something here not only of Locke and Rousseau but of the Physiocrats. It is curious that Burke’ found fault with the Declaration as inconsistent with any hereditary right, while Bentham saw in it an attempt to bind posterity by a premature definition of eternal truths.: Paine, who defended it against Burke, tends to the same conclusion as Bentham ; and their conclusion may be described in the words, “laissez-faire," a Physiocratic maxim. “Government,” says Paine, “is nothing more than a national association for the good of all, individually and collectively. Every man wishes to pursue his occupation and to enjoy the fruits of his labours, and the produce of his property in peace and safety, and with the least possible expense. When these things are accomplished, all the objects for which governments ought to be established are answered.”! Bentham, for his part, was the father of the Philosophical Radicals, who were identified with laissez-faire for two generations after the French Revolution. Yet of “natural rights" he is a keen critic.
1 The document is quoted in full in Paine's Rights of Man (1791-2). ? Reflections on the French Revolution (1790). 3 Anarch. Fallacies, Wks., vol. ii. • Rights of Man, II. 378.
One of the chief objections to “natural rights” imprescriptible, inalienable, anterior to civil society, was the connection of them with a supposed State of Nature anterior to Civil Society. As a historical fact, no such state is known to have existed, and no such “social compact” is known to us. A contract of the kind would only be possible to people already “civilized,” or disciplined by civil society. Primitive men seem to have been nearer than we are to Hobbes' State of War, not farther away from it; and they seem to have escaped by nothing so deliberate and definite as a contract. Historically men seem to be born not only not free or equal, but not even conscious that they ought to be so.
But apart altogether from history the question may be asked if there are not certain rights which are essential to the life of men as reasonable beings in whatever society they are and which may therefore be called in a special sense natural or at least fundamental. It is possible that in all the necessary relativity of governments there is a certain absolute element, the presence or absence of which determines whether or not a given society and government are to be considered really civilized.
In dealing with this question we may first of all give up the attempt to detach rights from society. Rights are claims on others, our fellows. Community of life is essential to the notion of a right. If there are any rights of animals, for example, these could only be founded on the notion of a community of living beings of which they and we were members. Rights are not anterior to society in the sense of possibly existing where there was no society, or for one individual in abstraction. But neither are they purely the creation of the State. In the sense in which we have spoken of them as implying a
1 A tract on the Rights of the Brute Creation is quoted in the Annual Register, 1776, Miscell. Essays, p. 176. A book on the subject was published a few years ago by Mr. E. B. Nicholson.
common life—they are simply the other side of duties. No doubt “ legal ” rights have a narrow sense and imply discretion of the individual. The right to send letters by the post, or to obtain gold from the Bank of England for one of its notes is the creation of law. But even many of such legal rights (defined by statutes) were once (undefined) customs, and are thence derived. This means that society and not the State is the ground on which they grow. Commercial law in particular is even yet in England the customs of the mercantile community, which the State ratifies but did not create.
It follows that a right might be anterior to the State, though not anterior to society. Does this countenance the use of the adjective “natural” in the sense of spontaneous ?
Historically, it is doubtful if we are justified in going even so far. The recognition of the “rights" above quoted from the American and French Declarations has historically come very late, for the conviction that the end of good government is the good of the entire body of the governed was of slow growth. It is a logical result of the Christian principle of the equality of men and the value of each individual soul. But it is a result that has needed philosophy and politics, that is to say, deliberate analysis, to unfold it. The spontaneous development of the Church was not enough to bring it out.
When unfolded, the claim of right based on the Christian idea of human equality comes to be as follows :
The moral life of man requires certain outward conditions for its development. This is the postulate to which we have in our own time arrived as the necessary postulate of all States and Governments ;—they must be so ordered as to allow and secure for each individual as a member of society the conditions necessary for the development of the faculties of the said member. On this general postulate may be founded the several claims distinguishable as “rights of man." The moral ideal being recognized, it follows that the external conditions necessary to realize it should he secured. Now, as the
1 See Godwin, Political Justice (1st ed.), Book II. v., vol. i. p. 111. 2 See T. H. Green, Polit. Obligation. Works, II. 341, etc.
development of the individual is bound up with the development of the society in which he is (his action being powerless and purposeless apart from the others with whom he lives),-the securing of the required external conditions depends largely (though not wholly) on the society and on its organ of conscious deliberate collective action—the State. The postulate may be called natural in the sense of spontaneous, in so far as the right secured is the right to develop spontaneously. But (1) the right itself is not spontaneously present to every man, and (2) the action by which this right is asserted is by no means without deliberate consciousness, still less (3) is the action by which it is secured. It is therefore not strictly natural in the sense of spontaneous. It is rational, and it is that claim which reasonable beings come (after centuries) to make ; and, if to be rational is to be natural, it is “natural,” and the resulting rule of conduct may be called a "natural law.” But there is no clear advantage in using words that could never dispense with a note of explanation.
Though it is anticipating a little of what will be said in the next book,' we may take three cases very familiar to us in our own times and more or less eagerly discussed for the last century or more,—the “right to live,” the “ right to work,” and the “right to have leisure.” These are frequently described as natural rights.
The first of these is only natural in the sense that a civilized society, being bound to secure the outward conditions of a moral life, is bound to secure the first of them—that the means of support be within reach of its members. But it does not follow that it must force each member to turn the possibility into actuality. There is no claim on society for more than a start in life, unless the claimant is beyond the power of starting of himself any more. Even the claim to secure the start goes beyond what Bentham and Paine had conceived to be the function of the State. It implies that the State is not simply
Anarchy plus the Constable,” but has the positive function of trying to fit the runners for the race. This is a requirement of the public interest as a whole. In
See below [Malthus), [Fichte), (Hegel).
education and similar acts, it is not for the sake of the parents, but for the sake of the future citizens and the future commonwealth themselves, that we see that all have a fair start, so far as human arrangements can so order it.
The difficulty which is felt in regard to the “right to live” turns largely on the relation of the numbers of the people to their welfare as a whole. Children are brought into the world, whose parents have no means of feeding them. Are we to recognise indefinitely a right to be supported at the expense of others? The answer is that in childhood we are all so supported, and the question is on whom we are to depend. The question, instead of that of a child's claim to support, becomes that of a claim of grown-up people to bring children into the world improvidently. There is no right on any one's part to do this, there is no duty of which this right is the converse, or claim warranted by any ideal of society known to us now. The fact that more citizens may be ushered into the State than the State desires, is a proof that the State has been too indulgent to those that have become parents. That the children, once there, have a claim, seems beyond question.
The second claim of right which we have taken as an instance of alleged “natural rights " is the claim to be provided with such employment as will provide a living. It is the first claim (or claim to live) in a more advanced stage ; and the difficulty here lies in making sure that the individual is really seizing the opportunities presented to him already. It needs to be remembered that a right is the converse of a duty. It must also be remembered that the claim is now advanced in a special form of society, in which the relation of wages-earner and employer is the dominant feature of industrial organization and livelihood is precarious. The utmost that seems lawful to grant is, that the accidents of life may make it necessary for the State to save the lives of its citizens by directing these citizens to a particular opportunity for labour, in the way of wages-earning or otherwise. But, as the main end is that the individual develope his own special faculties in his own way, the end is not served but foiled, when the work is chosen for him and prescribed to