Lectures on the Principles of Political Obligation

H. Has the Citizen Rights Against the State?

137. I propose to pursue the inquiry, begun in my last course, into the nature and functions of the state. In the last course we were chiefly occupied with criticism. We have seen that no true conception of the rights of individuals against each other or against the state, or of the rights of the state over individuals, can be arrived at, while we look upon the state merely as an aggregation of individuals under a sovereign power that is able to compel their obedience, and consider this power of compelling a general obedience to be the characteristic thing in a state. So long as this view is retained, no satisfactory answer can be given to the question, by what right the sovereign compels the obedience of individuals. It can only be met either by some device for representing the individuals as so consenting to the exercise of sovereign power over them that it is no violation of their individual rights, or by representing the rights of individuals as derived from the sovereign and thus as having no existence against it. But it is obviously very often against the will of individuals that the sovereign power is exercised over them; indeed if it were not so, its characteristic as a power of compulsion would be lost; it would not be a sovereign power; and the fact that the majority of a given multitude may consent to its exercise over an unconsenting minority, is no justification for its exercise over that minority, if its justification is founded on consent; the representation that the minority virtually consent to be bound by the will of the majority being an obvious fiction. On the other hand, the theory that all right is derived from a sovereign, that it is a power of which the sovereign secures the exercise to the individual, and that therefore there can be no right against the sovereign, conflicts with the primary demands of human consciousness. It implies the identification of ‘I ought’ with ‘I am forced to.’ Reducing the ‘right’ of the sovereign simply to a power, it makes it unintelligible that this power should yet represent itself as a right, and claim obedience to itself as such. No such theory indeed admits of consistent statement. To say (with Hobbes) that a law may be inequitable or pernicious, though it cannot be unjust, is to admit a criticism of laws, a distinction between those enactments of the sovereign which are what they should be and those which are not. And this is to recognise the individual’s demand for a justification of the laws which he obeys; to admit in effect that there is some rule of right, of which the individual is conscious, and to which law ought to conform.

138. It is equally impossible, then, to hold that the right of the sovereign power in a state over its members is dependent on their consent, and, on the other hand, that these members have no rights except such as are constituted and conferred upon them by the sovereign. The sovereign, and the state itself as distinguished by the existence of a sovereign power, presupposes rights and is an institution for their maintenance. But these rights do not belong to individuals as they might be in a state of nature, or as they might be if each acted irrespectively of the others. They belong to them as members of a society in which each recognises the other as an originator of action in the same sense in which he is conscious of being so himself (as an ‘ego,’ as himself the object which determines the action), and thus regards the free exercise of his own powers as dependent upon his allowing an equally free exercise of his powers to every other member of the society. There is no harm in saying that they belong to individuals as such, if we understand what we mean by ‘individual,’ and if we mean by it a self-determining subject, conscious of itself as one among other such subjects, and of its relation to them as making it what it is; for then there is no opposition between the attachment of rights to the individuals as such and their derivation from society. They attach to the individual, but only as a member of a society of free agents, as recognising himself and recognised by others to be such a member, as doing and done by accordingly. A right, then, to act unsocially,—to act otherwise than as belonging to a society of which each member keeps the exercise of his powers within the limits necessary to the like exercise by all the other members,—is a contradiction. No one can say that, unless he has consented to such a limitation of his powers, he has a right to resist it. The fact of his not consenting would be an extinction of all right on his part.

139. The state then presupposes rights, and rights of individuals. It is a form which society takes in order to maintain them. But rights have no being except in a society of men recognising each other as ἴσοι καὶ ὅμοιοι.1 They are constituted by that mutual recognition. In analysing the nature of any right, we may conveniently look at it on two sides, and consider it as on the one hand a claim of the individual, arising out of his rational nature, to the free exercise of some faculty; on the other, as a concession of that claim by society, a power given by it to the individual of putting the claim in force. But we must be on our guard against supposing that these distinguishable sides have any really separate existence. It is only a man’s consciousness of having an object in common with others, a well-being which is consciously his in being theirs and theirs in being his,—only the fact that they are recognised by him and he by them as having this object,—that gives him the claim described. There can be no reciprocal claim on the part of a man and an animal each to exercise his powers unimpeded by the other, because there is no consciousness common to them. But a claim founded on such a common consciousness is already a claim conceded; already a claim to which reality is given by social recognition, and thus implicitly a right.

140. It is in this sense that a slave has ‘natural rights’ They are ‘natural’ in the sense of being independent of, and in conflict with, the laws of the state in which he lives, but they are not independent of social relations. They arise out of the fact that there is a consciousness of objects common to the slave with those among whom he lives,—whether other slaves or the family of his owner,—and that this consciousness constitutes at once a claim on the part of each of those who share it to exercise a free activity conditionally upon his allowing a like activity in the others, and a recognition of this claim by the others through which it is realised. The slave thus derives from his social relations a real right which the law of the state refuses to admit. The law cannot prevent him from acting and being treated, within certain limits, as a member of a society of persons freely seeking a common good. Now that capability of living in a certain limited community with a certain limited number of human beings, which the slave cannot be prevented from exhibiting, is in principle a capability of living in community with any other human beings, supposing the necessary training to be allowed; and as every such capability constitutes a right, we are entitled to say that the slave has a right to citizenship, to a recognised equality of freedom with any and every one with whom he has to do, and that in refusing him not only citizenship but the means of training his capability of citizenship, the state is violating a right founded on that common human consciousness which is evinced both by the language which the slave speaks, and by actual social relations subsisting between him and others. And on the same principle upon which a state is violating natural rights in maintaining slavery, it does the same in using force, except under the necessity of self-defence, against members of another community. Membership of any community is so far, in principle, membership of all communities as to constitute a right to be treated as a freeman by all other men, to be exempt from subjection to force except for prevention of force.

141. A man may thus have rights as a member of a family or of human society in any other form, without being a member of a state at all,—rights which remain rights though any particular state or all states refuse to recognise them; and a member of a state, on the ground of that capability of living as a freeman among freemen which is implied in his being a member of a state, has rights as against all other states and their members. These latter rights are in fact during peace recognised by all civilised states. It is the object of ‘private international law’ to reduce them to a system. But though it follows from this that the state does not create rights, it may be still true to say that the members of a state derive their rights from the state and have no rights against it. We have already seen that a right against society, as such, is an impossibility; that every right is derived from some social relation: that a right against any group of associated men depends on association, as ἴσος καὶ ὅμοιος1, with them and with some other men. Now for the member of a state to say that his rights are derived from his social relations, and to say that they are derived from his position as member of a state, are the same thing. The state is for him the complex of those social relations out of which rights arise, so far as those rights have come to be regulated and harmonised according to a general law, which is recognised by a certain multitude of persons, and which there is sufficient power to secure against violation from without and from within. The other forms of community which precede and are independent of the formation of the state, do not continue to exist outside it, nor yet are they superseded by it. They are carried on into it. They become its organic members, supporting its life and in turn maintained by it in a new harmony with each other. Thus the citizen’s rights, e.g. as a husband or head of a family or a holder of property, though such rights, arising out of other social relations than that of citizen to citizen, existed when as yet there was no state, are yet to the citizen derived from the state, from that more highly developed form of society in which the association of the family and that of possessors who respect each other’s possessions are included as in a fuller whole; which secures to the citizen his family rights and his rights as a holder of property, but under conditions and limitations which the membership of the fuller whole—the reconciliation of rights arising out of one sort of social capability with those arising out of another—renders necessary. Nor can the citizen have any right against the state, in the sense of a right to act otherwise than as a member of some society, the state being for its members the society of societies, the society in which all their claims upon each other are mutually adjusted.

142. But what exactly is meant by the citizen’s acting ‘as a member of his state’? What does the assertion that he can have no right to act otherwise than as a member of his state amount to? Does it mean that he has no right to disobey the law of the state to which he belongs, whatever that law may be? that he is not entitled to exercise his power in any way that the law forbids and to refuse to exercise them in any way that it commands? This question was virtually dealt with before1 in considering the justifiability of resistance to an ostensible sovereign. The only unqualified answer that can be given to it is one that may seem too general to be of much practical use, viz. that so far as the laws anywhere or at any time in force fulfil the idea of a state, there can be no right to disobey them; or, that there can be no right to disobey the law of the state except in the interest of the state; i.e. for the purpose of making the state in respect of its actual laws more completely correspond to what it is in tendency or idea, viz. the reconciler and sustainer of the rights that arise out of the social relations of men. On this principle there can be no right to disobey or evade any particular law on the ground that it interferes with any freedom of action, any right of managing his children or ‘doing what he will with his own,’ which but for that law the individual would possess. Any power which has been allowed to the individual up to a certain time, he is apt to regard as permanently his right. It has, indeed, been so far his right, if the exercise of that power has been allowed with any reference to social good, but it does not, as he is apt to think, remain his right when a law has been enacted that interferes with it. A man e.g. has been allowed to drive at any pace he likes through the streets, to build houses without any reference to sanitary conditions, to keep his children at home or send them to work ‘analphabetic,’ to buy or sell alcoholic drinks at his pleasure. If laws are passed interfering with any or all of these powers, he says that his rights are being violated. But he only possessed these powers as rights through membership of a society which secured them to him, and of which the only permanent bond consists in the reference to the well-being of its members as a whole. It has been the social recognition grounded on that reference that has rendered certain of his powers rights. If upon new conditions arising, or upon elements of social good being taken account of which had been overlooked before, or upon persons being taken into the reckoning as capable of participation in the social well-being who had previously been treated merely as means to its attainment,—if in any of these ways or otherwise the reference to social well-being suggest the necessity of some further regulation of the individual’s liberty to do as he pleases, he can plead no right against this regulation, for every right that he has possessed has been dependent on that social judgment of its compatibility with general well-being which in respect to the liberties in question is now reversed.

143. ‘Is then,’ it may be asked, ‘the general judgment as to the requirements of social well-being so absolutely authoritative that no individual right can exist against it? What if according to this judgment the institution of slavery is so necessary that citizens are prohibited by law from teaching slaves to read and from harbouring runaways? or if according to it the maintenance of a certain form of worship is so necessary that no other worship can be allowed and no opinion expressed antagonistic to it? Has the individual no rights against enactments founded on such accepted views of social well-being?’ We may answer: A right against society as such, a right to act without reference to the needs or good of society, is an impossibility, since every right depends on some social relation, and a right against any group of associated men depends upon association on some footing of equality with them or with some other men. We saw how the right of the slave really rested on this basis, on a social capacity shown in the footing on which he actually lives with other men. On this principle it would follow, if we regard the state as the sustainer and harmoniser of social relations, that the individual can have no right against the state; that its law must be to him of absolute authority. But in fact, as actual states at best fulfil but partially their ideal function, we cannot apply this rule to practice. The general principle that the citizen must never act otherwise than as a citizen, does not carry with it an obligation under all conditions to conform to the law of his state, since those laws may be inconsistent with the true end of the state as the sustainer and harmoniser of social relations. The assertion, however, by the citizen of any right which the state does not recognise must be founded on a reference to an acknowledged social good. The fact that the individual would like to exercise the power claimed as a right does not render the exercise of it a right, nor does the fact that he has been hitherto allowed to exercise it render it a right, if social requirements have arisen under changed conditions, or have newly come to be recognised, with which its exercise is incompatible. The reason that the assertion of an illegal right must be founded on reference to acknowledged social good is that, as we have seen, no exercise of a power, however abstractedly desirable for the promotion of human good it might be, can be claimed as a right unless there is some common consciousness of utility shared by the person making the claim and those on whom it is made. It is not a question whether or no it ought to be claimed as a right; it simply cannot be claimed except on this condition. It would have been impossible, e.g., in an ancient state, where the symbol of social union was some local worship, for a monotheistic reformer to claim a right to attempt the subversion of that worship. If a duty to do so had suggested itself, consciousness of the duty could never have expressed itself in the form of a claim of right, in the absence of any possible sense of a public interest in the religious revolution to which the claim could be addressed. Thus, just as it is not the exercise of every power, properly claimable as a right, that is a right in the full or explicit sense of being legally established, so it is not every power, of which the exercise would be desirable in an ideal state of things, that is properly claimable as a right. The condition of its being so claimable is that its exercise should be contributory to some social good which the public conscience is capable of appreciating, not necessarily one which in the existing prevalence of private interests can obtain due acknowledgment, but still one of which men in their actions and language show themselves to be aware.

144. Thus to the question, Has the individual no rights against enactments founded on imperfect views of social well-being? we may answer, He has no rights against them founded on any right to do as he likes. Whatever counter-rights he has must be founded on a relation to the social well-being, and that a relation of which his fellow -citizens are aware. He must be able to point to some public interest, generally recognised as such, which is involved in the exercise of the power claimed by him as a right; to show that it is not the general well-being, even as conceived by his fellow-citizens, but some special interest of a class that is concerned in preventing the exercise of the power claimed. In regard to the right of teaching or harbouring the slave, he must appeal to the actual capacity of the slave for community with other men as evinced in the manner described above, to the recognition of this capacity as shown by the actual behaviour of the citizens in many respects towards the slave, to the addition to social well-being that results from the realisation of this capacity in all who possess it through rights being legally guaranteed to them. In this way he must show that the reference to social well-being, on which is founded the recognition of powers as rights, if fairly and thoroughly carried out, leads to the exercise of powers in favour of the slave, in the manner described, not to the prohibition of that exercise as the supposed law prohibits it. The response which in doing so he elicits from the conscience of fellow-citizens shows that in talking of the slave as ‘a man and a brother,’ he is exercising what is implicitly his right, though it is a right which has not become explicit through legal enactments. This response supplies the factor of social recognition which, as we have seen, is necessary in order to render the exercise of any power a right. To have an implicit right, however, to exercise a power which the law disallows is not the same thing as having a right to exercise that right. The right may be claimed without the power being actually exercised so long as the law prohibits its exercise. The question, therefore, would arise whether the citizen was doing his duty as such—acting as a member of the state—if he not merely did what he could for the repeal of the law prohibiting the instruction of a slave or the assistance of runaways, but himself in defiance of the law instructed and assisted them. As a general rule, no doubt, even bad laws, laws representing the interests of classes or individuals as opposed to those of the community, should be obeyed. There can be no right to disobey them, even while their repeal is urged on the ground that they violate rights, because the public interest, on which all rights are founded, is more concerned in the general obedience to law than in the exercise of those powers by individuals or classes which the objectionable laws unfairly withhold. The maintenance of a duty prohibiting the import of certain articles in the interest of certain manufacturers would be no justification for smuggling these articles. The smuggler acts for his private gain, as does the man who buys of him; and no violation of the law for the private gain of the violator, however unfair the law violated, can justify itself by reference to a recognised public good, or consequently be vindicated as a right. On the other hand, there may be cases in which the public interest—not merely according to some remote philosopher’s view of it, but according to conceptions which the people are able to assimilate—is best served by a violation of some actual law. It is so in regard to slavery when the public conscience has come to recognise a capacity for right (for exercising powers under the control of a reference to general well-being) in a body of men to whom legal rights have hitherto been refused, but when some powerful class in its own interest resists the alteration of the law. In such a case the violation of the law on behalf of the slave is not only not a violation in the interest of the violator; the general sense of right on which the general observance of law depends being represented by it, there is no danger of its making a breach in the law-abiding habits of the people.

145. ‘But this,’ it will be said, ‘is to assume a condition of things in which the real difficulty of the question disappears. What is to be done when no recognition of the implicit rights of the slave can be elicited from the public conscience; when the legal prohibitions described are supported by the only conceptions of general good of which the body of citizens is capable? Has the citizen still a right to disregard these legal prohibitions? Is the assertion of such a right compatible with the doctrine that social recognition of any mode of action as contributory to the common good is necessary to constitute a right so to act, and that no member of a state can have a right to act otherwise than according to that position?’ The question, be it observed, is not as to the right of the slave, but as to the right of the citizen to treat the slave as having rights in a state of which the law forbids his being so treated. The claim of the slave to be free, his right implicit to have rights explicit, i.e. to membership of a society of which each member is treated by the rest as entitled to seek his own good in his own way, on the supposition that he so seeks it as not to interfere with the like freedom of quest on the part of others, rests, as we have seen, on the fact that the slave is determined by conceptions of a good common to himself with others, as shown by the actual social relations in which he lives. No state-law can neutralise this right. The state may refuse him family rights and rights of property, but it cannot help his living as a member of a family, acting and being treated as a father, husband, son, or brother, and therefore cannot extinguish the rights which are necessarily involved in his so acting and being so treated. Nor can it prevent him from appropriating things and from associating with others on the understanding that they respect each other’s appropriations, and thus possessing and exercising rights of property. He has thus rights which the state neither gives nor can take away, and they amount to or constitute a right to freedom in the sense explained. The state, under which the slave is a slave, refusing to recognise this right, he is not limited in its exercise by membership of the state. He has a right to assert his right to such membership in any way compatible with that susceptibility to the claims of human fellowship on which the right rests. Other men have claims upon him, conditioning his rights, but the state, as such, which refuses to recognise his rights, has no claim on him. The obligation to observe the law, because it is the law, does not exist for him.

146. It is otherwise with the citizen. The slave has a claim upon him to be treated in a certain way, the claim which is properly described as that of a common humanity. But the state which forbids him so to treat the slave has also a claim upon him, a claim which embodies many of the claims that arise out of a common humanity in a form that reconciles them with each other. Now it may be argued that the claim of the state is only absolutely paramount on the supposition that in its commands and prohibitions it takes account of all the claims that arise out of human fellowship; that its authority over the individual is in principle the authority of those claims, taken as a whole; that if, as in the case supposed, its ordinances conflict with those claims as possessed by a certain class of persons, their authority, which is essentially a conditional or derived authority, disappears; that a disregard of them in the interest of the claims which they disregard is really conformity to the requirements of the state according to its true end or idea, since it interferes with none of the claims or interests which the state has its value in maintaining or protecting, but, on the contrary, forces on the attention of members of the state claims which they hitherto disregarded; and that if the conscience of the citizens is so far mastered by the special private interests which the institution of slavery breeds that it cannot be brought to recognise action on the slave’s behalf as contributory to a common good, yet there is no ground under such conditions for considering a man’s fellow-citizens to be the sole organs of the recognition which is needed to render his power of action a right; that the needful recognition is at any rate forthcoming from the slave, and from all those acquainted with the action in whom the idea of a good common to each man with others operates freely.

147. This may be truly urged, but it does not therefore follow that the duty of befriending the slave is necessarily paramount to the duty of obeying the law which forbids his being befriended: and if it is possible for the latter duty to be paramount, it will follow, on the principle that there is no right to violate a duty, that under certain conditions the right of helping the slave may be cancelled by the duty of obeying the prohibitory law. It would be so if the violation of law in the interest of the slave were liable to result in general anarchy, not merely in the sense of the dissolution of this or that form of civil combination, but of the disappearance of the conditions under which any civil combination is possible; for such a destruction of the state would mean a general loss of freedom, a general substitution of force for mutual good-will in men’s dealings with each other, that would outweigh the evil of any slavery under such limitations and regulations as an organised state imposes on it.

Notes

1 [Greek ἴσοι καὶ ὅμοιοι (isoi kai homoioi) = equals and alike, plural Tr]

1 [Greek ἴσος καὶ ὅμοιος (isos kai homoios) = equal and alike, singular Tr.]

1 [Above, sections 100, 101. RLN]