The Nature Of Rights

The Nature Of Rights: Every State is known by the rights that it maintains. Our method of judging its character lies, above all, in the contribution that it makes to the substance of man’s happiness. The State, therefore, is not, at least for political philosophy, simply a sovereign organization with the power to get its will obeyed.  It cannot, save in a narrowly legal sense, demand allegiance from its subjects save in terms of what that allegiance is to serve.

The citizen, that is to say, just because he is a citizen, has the duty of scrutinising both the motive and the character of governmental acts. They are not right merely by reason of the authority from which they emanate. There is a standard by which they are to be tried. There IS a purpose with which they must be invested. The State, briefly, does not create, but recognizes, rights, and its character will be apparent from the rights that, at any given period, secure recognition.

The theory of rights is the avenue to a creative view of politics, and it is therefore essential to define with some care the meaning they embody. We do not mean by rights the grant of some historic conditions possessed in the childhood of the race, but lost in the process of time. Few theories have done greater harm to philosophy, or more violence to the facts they seek to summaries, than the notion that they represent the recovery of a lost inheritance. There is no golden age to which we may seek to return. The protection afforded to men by the modern State is, at least in Western civilization, at all points, more ample and more adequate than it has been at any previous time.

Nor do we imply by rights the reflection of a natural order which lies behind the shifting9 appearance of contemporary society. For such an order cannot be permanent in a world which science changes at a pace so rapid as we have come to expect. The natural order of what was a swamp in the Illinois of the eighteenth century cannot be the natural order of the Chicago of Our own day. The idea of a natural order is of course, intended to convey Some quality of the imperative to rights. But these, in fact, must always change with the facts of time and place.

It is absurd to emphasis their supposed identity in Anglo-Saxon England and the England of the twentieth century. It is not less absurd to suppose that the natural order of a generation of Englishmen implies the same rights as that which distinguishes the primitive races of Melanesia. Our natural order is, at any moment, a problem for pragmatic analysis. Its only permanence lies in the certainty that it will change.

Nor do we mean by rights the power, as Hobbes urged, to satisfy desire. For there are desires, as to murder, for example, which cannot be grounded in rights. All of society is dependent upon the desires which, as we recognize, have a claim to satisfaction. They are never equally valid  and the effort made by the State for their satisfaction must depend in large degree upon the results that effort involved. For, obviously, no State would long survive in which the law sought room to respond to the homicidal impulse of its members. The first condition of adequate living is security of life and the first term, therefore, in a definition of rights is the limitation of desires.

It is easy, in such a background, to take the step urged upon us by Hobbes and Bentham and to define rights as claims recognized by the State. My right is then that claim which the force of the State will, upon order of its courts, be used to substantiate. Here, at the least, is certainty , for the body of statutes and legal rules will give to the observer means of laying down with some precision exactly the rights each citizen of each State may expect to enjoy. Changes in the law then produce changes in the substance of rights, and an annual scrutiny of statutes and decisions gives us the rule of judgment.

It is an attractive theory , for since the courts enforce the Will of the State as they discover that will, we know what claims are immediately entitled to recognition. But so purely legalistic a view has nothing to contribute to an adequate political philosophy. A legal theory of rights will tell us what in fact the character of a State is it will not tell us, save by the judgment we express upon some particular State, whether the rights there recognized are the rights which need recognition.

A legal theory of rights, say in the England of 1923, needs, for its understanding, a test in terms of a criterion external to itself. When we say that a man has the right to bestow his possessions as he will, we state a fact but we do not thereby determine whether he ought to have that right When we say that a deaf mute has the right to marry, we mean that no church and no registrar can refuse, in proper circumstances, the performance of the necessary ceremonial but we do not mean that we think he ought to have the right.

At the back of any legal theory there is a system of presumptions each one of which requires a careful examination before it can be admitted as valid for politics. Laws, in fact, are not, as  Montesquieu said, the necessary relations of society. They become those relations as they reflect something beyond the merely barren will of an authority competent to enact them.

Rights, in fact, are those conditions of social life without which no man can seek, in general, to be himself at his best. For since the State exists to make possible that achievement, it is only by maintaining rights that its end may be secured. Rights, therefore, are prior to the State in the sense that, recognized or no, they are that from which its validity derives. They are not historical in the sense that they have at some time won their recognition.

They are not natural, in the sense that a permanent and unchanging catalogue of them can be compiled. They are historical in the sense that, at some given period and place, they are demanded by the character of its civilization and they are natural in the sense that, under those same limitations, the facts demand their recognition. That does not mean they will be recognized. A revolution, as in eighteenth-century France, may be necessary to wring their recognition from the existing legal order.

But a legal system is surrounded by the penumbra of an attainable ideal which it must reach as the price of its preservation. Rights are asserted in new form as the rights which have gained the ,cognizance of law become inadequate or outworn. They have a content which changes with time and place. They win their way the more securely they can justify themselves in the facts about them.

They are rights because they are useful to the end the State seeks to serve. They may, indeed, controvert existing legal rights for it well may be that an order preserves privileges which cannot be defended upon the existing facts. So, for example, the demand for the right to vote contravened the outworn political system before the Reform Act of 1832 and it was the pressure of the facts behind the demand which secured the recognition of a new claim.

The same thing is true of the Ten Hours Act of 1844. The same thing, upon a wider scale, is true of the right claimed by the American colonies in 1776 to determine of themselves the character of their taxation. Any given State IS set between rights that have been recognized and rights which demand recognition. There is no better historic test of its adequacy than the temper in which it confronts the new demands.

We are making the test of rights utility and that, it is clear, involves the question of those to whom the rights are to be useful. There is only one possible answer. In any State the demands of each citizen for the fulfillment of his best self must be taken as of equal worth and the unity of a rights therefore its value to all the members of the State. The right, for instance, of freedom of speech does not mean for those in authority, or for members of some special church or class. Freedom of speech is a right either equally applicable to all citizens without distinction or not applicable at all.

For the plane upon which men meet with identical claims upon the common good is that of which the State fixes the horizon. It cannot set bounds to those upon whom the enjoyment of the right is to be conferred. It must assume, at some point in its policy, a sufficient identity of nature in men to secure identity of response. Where it differentiates between them, whether iii terms of the kind of property they hold, as in feudal society, or in terms of the religion they profess, as in the France of the Ancim Régime, it is, to the degree of differentiation, denying its claim upon the allegiance of those excluded from the enjoyment of rights.

For in any adequate view of citizenship a State which refuses to me the thing it declares essential to the well being of another is making me less than a citizen. It is denying that which invests its power with moral authority. It is admitting that its claim upon me is built, not upon it? ethics, but its strength.

It is clear, in such a view, that the citizen has claims upon the State. It must observe his rights. It must give him those conditions without which he cannot be that best self that he may be. This does not mean the guarantee that .his best self will be attained. It means only that the hindrances to its attainment are removed, so far as the action of the State can remove them. Here, obviously enough, the clue to the interpretation of rights becomes an historical one. The claims that we must recognize are those which, in the light of history, involve , disaster When they are unfulfilled.

That is the case, for example, upon which a democratic polity is most securely founded. For it has been the obvious lesson of history that when the experience associated with power is less than that of the adult population, the welfare secured almost always is less than that of the citizen body. My personality, in other words, cannot be adequately protected when others, but not myself, have access to the sources of power. I cannot secure, for myself a harmony of impulses unless the balance that is struck in the ultimate rules of political conduct is one that builds upon my experience not less, than upon the experience of others. History, in this sense, is assuredly a philosophy of rights built upon example.

We do not gain from its survey the power to predict the exact effort men will make. We do at least gain the knowledge that, over a period, certain uniformity of conduct in the rulers of a State will be followed by certain uniformity, of conduct in those over whom they rule. We can, from the record we obtain, draw up a code of rights. Its general outline will alone possess validity and the method and level of its application will depend upon the Special conditions of each State. But for Western civilization, at least, the outlines of such a code begin to formulate themselves with some distinctness.

But the possession of rights, in the sense here used, does not mean the possession of claims that are empty of all duties We have rights to protect and to express our personality. We have rights to safeguard our uniqueness in the vast pressure of social forces. But our rights are not independent of society, We have them because we are members of the State. We have them by reason of an organization through which, in the world as it is, the contribution of that uniqueness can alone be made. Our rights are not independent of society, but inherent in it. We have them, that is to say, for its protection as well as for our own.

To provide for me the conditions which enable me to be my best self is to oblige me, at the same time, to seek to be my best self. To protect me against attack from others is to imply that I myself will desist from attacking others. To give me the benefit of education is to imply that I will so use the advantages education confers as to add to the common stock. I do not exist solely xor the State but neither does the State exist solely for me My claim comes from the fact that I share with others in the pursuit of a common end.

My rights are powers conferred that I may, with others strive for the attainment of that common end. My personality, so to speak, bounds and limits the law of the State. But that boundary and that limitation are imposed upon the condition that in seeking to be the best self of which I am capable I seek, in Virtue of the common end I share with others, their well being in my own.

Rights, therefore, are correlative with functions. I have them that I may make my contribution to the social end. I have no right to act unsocially. I have no claim to receive without the attempt, at least, to pay for what I receive: F unction is thus implicit in right. In return for the conditions with which I am provided, I seek to make possible a contribution that enriches the common stock. And that contribution must be personal, or it is not a contribution at all. I do not contribute by being the child of my parents.

I do not contribute by withdrawal from my fellowmen. I have to do something that is worth doing in order to enjoy that which the experience of history has proved to be worth enjoying. I may pay my debt to the State by being a bricklayer or an artist, or a mathematician.

Whatever form my payment takes, it is essential that I should realize that the rights I have are given to me because I am performing some given duties. He that will not perform functions can hot enjoy rights any more than he who will not work ought to enjoy bread. The usefulness of my personality to the social order the State can recognize only in terms of what I do on its behalf. I must recognize the civic equation of which I am part, or forfeit my citizenship.

I have, therefore, no right to do as I like. My rights are built always upon the relation my function has to the well being of society , and the claims I make must, clearly enough he claims that are necessary to the proper performance of my function. My demands upon society, in this view, are demands which ought to receive recognition be cause a recognizable public interest is involved in their recognition That does not mean that I must, in Mr. Bradley’s phrase, accept without repining the duties of my allotted station. It is the primary fact in personality as such that it has no allotted station. It wins, or ought to win, the station in which it may best fulfill itself. It can do so by experiment alone. It must be trained that it may be able to interpret the meaning of experiment. For in any system of rights the ultimate uniqueness, and, therefore, isolation of the individual, is the basic starting point. Any attempt at the division of society into “ natural ” classes with “ natural ” functions is bound to break down.

We discover what we naturally are in terms only of what we seek to become. And the discovery is intimately our own. Others may glimpse our sense of failure and success. But the real meaning of our experience is known only to ourselves. That is what makes essential in the modern State a minimum basis at which rights are realized. Whatever I am, whether the statesmen who directs the commonwealth or some humble hewer of wood, I must realize my rights at the level which makes possible the interpretation of my experience to myself.

I must be trained, that is, at least to the point at which I can make my desires articulate as life unfolds them. And if that is true for me, it holds equally for all. Rights, therefore, regardless of the exact function to which they relate, are at a minimum basis, identical. The State, at that level, must secure them for each of its citizens. Differentiation arises only when the elementary needs of each individual have been satisfied.

We build rights upon individual personality because, ultimately, the welfare of the community is built upon the happiness of the individual. I cannot have rights against the public welfare, for that, ultimately, is to give me rights against a welfare which is intimately and inseparably associated with my own. But that is not to say that I cannot have rights against the State.

For the State, at any given moment, means a body of men and women in possession of actual power and their judgment of the rights that ought to be recognized maybe mistaken. It was judged, for example, that Galileo had no right to suggest hypotheses contrary to accepted Catholic doctrine but it is Galileo’s right that we now admit.

The situation is, of course, reciprocal. The State has rights against me. It has the right to exact from me that conduct which secures to others the enjoyment of the rights it secures to myself. For the community, the interest of each citizen is of equal importance.

No claim of mine, at least at the minimum level of rights, can be recognized by the State which involves the surrender by some other person of rights without which he, also, cannot be his best self. The mutual claims of the State and of its citizens must be claims clearly justifiable by reference to a common good which includes the goods of all.

In a sense, indeed, it does not matter whether that common good is recognized by an existing State. My duty is to act as though it ought to be recognized. My citizenship implies conduct on my part which attempts the enforcement of that recognition where it is denied. I may, of course, in such action encounter the hostile forces of the State.

I may I probably shall-provoke hopeless defeat, or a victory which is purchased only at a terrible price. I must yet make the choice, in and of myself, of the conduct that citizenship implies. To act other-wise is to subordinate truth to authority and it is historically evident that this habit of subordination ultimately makes men indifferently accept the orders of authority without regard to their substance.

My duty, therefore, to the State, is, above all, my duty to the ideal the actual State must seek to serve. There are, then,circumstances in which resistance to the State becomes an obligation if claims to right are to be given validity. We can lay down no general rules either of time or situation. Anyone who studies at all carefully the history of revolution will be convinced that the element of chance is too large to admit the entrance of prediction.

We can only say that a general order becomes moral only in the degree to which it is built in the conscience of its citizens. Antagonism to the demands of authority will always be the exception in history but those demands will win their way from inert acceptance rather than active consent unless, over a period of time, they offer service to the theoretic purpose of the State.

any social order which fails consistently to recognize the claims of personality is built upon a foundation of sand. Sooner or later it will provoke the dissent of those whose nature is frustrated by its policy. Its disasters will become their opportunity. For to deny the claims of right is to sacrifice the claim to allegiance. The State can exercise moral authority upon no other basis.