I Private Rights. The Right to Life and Liberty
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 practised1 (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.
[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?
Notes
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.).
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