Page images
PDF
EPUB

become potens sui, master of his fate, by emancipating him from the yoke of instinct as no other animal is emancipated. A free volition is spontaneity in no degree subject to physical necessity. It may be truly called man's distinctive endowment, although the foreshadowings, the presentiments, the germs of it-μara ŶS ȧvepwins Swis-may be found in the lower animals. It is the essence, the very form of his personality. It is the basis as of ethics, so of jurisprudence and of politics-which are, in truth, mere branches of ethics according to the pregnant dictum of Hegel. The existence of free will is right. It is to personality that rights attach, and all rights imply correlative duties. You cannot predicate rights where you cannot predicate duties. Rights and duties spring up from the same essential ground of human nature. They are different aspects of one and the same thing. From each duty issues a right, the right to perform the duty, with precisely the same logical force and warrant as from necessity issues possibility. The power of willing right right, and the consciousness that he ought to will it, is a primary fact of man's nature. And this free volition, determined by the idea of good, is in itself a revelation of the moral law. The autonomy of the will is the object of that lex perfecta libertatis. "The ethical faculty," as we read in the Critique of Pure Reason, "enunciates laws which are imperative or objective laws of freedom."

[ocr errors]

Natural right, it is sometimes said, arises from the inalienable idea of the person in himself. The statement requires to be guarded. It is only in society that personality is realized, Unus, homo nullis homo." Hence that other dictum, which must be received with the like caution, that right is the offspring of civilization. True it is that right is not the attribute of man in Rousseau's "state of nature. The pre-civilized epoch in which that filthy dreamer sought his Utopia was in truth an epoch of the reign of force, of hideous cruelty, of cannibalism, of dirt unspeakable, of sexual promiscuity, of lying and hypocrisy. And such is the state which his doctrines tend to bring back. Unquestionably it is society alone that gives validity to right, for man is, in Aristotle's phrase, "a political animal." If we follow the historical method only, we must pronounce the birthplace of right to have been the family, from which civil polity has been developed. But if we view the matter ideally, we must say that the experience of the race is here merely an occasion, not a cause; it does not create, it merely reveals right. The social organism exhibits that which lies in the nature of man, deep down in the inmost recesses of his being, but which could never have come out of him in isolation. It is in history that the idea of right unfolds itself. It is in the fellowship of successive generations that the idea becomes increasingly realized as man becomes more ethical. For

man is not only "a political animal," he is also "a historical animal." And this it is, even more than the Aristotelian criterion, that marks him off from the rest of sentient existence. He is "made and moulded of things past." He is a part of all that his ancestors have been. Bygone generations are incarnate in him. He is a link between the civilization which has gone and the civilization to come. And what is civilization but the progressive realization by man of the end of his being, which end is ethical? Consider, on the one hand, the Red Indian who tortures his captive enemy, his untutored mind not doubting that he is merely exercising a right; and, on the other, contemplate John Howard on his circumnavigation of charity," not counting his life dear so that he may redress the wrongs of criminals. Thus has the idea of right grown in the human conscience. But an idea, in the true sense of the word, it is. Its root is in the transcendental. All human rights are really but different aspects of that one great aboriginal right of man to belong to himself, to realize the idea of his being. In strictness, positive law does not make but merely recognizes and guarantees them. A Prætorian edict, an act of Parliament, is not their source but their channel. Our codes are merely formulas in which we endeavor, with greater or less success, to apply, in particular conditions of life and social environment, the dictates of that universal law which is absolute and eternal justice. This is, in Burke's magnificent language, "that great immutable, pre-existent law, prior to our devices and prior to all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the universe, out of which we cannot stir." This law, the great Roman orator had declared two thousand years before, "no nation can overthrow or annul: neither a senate nor a whole people can relieve us from its injunctions. It is the same in Athens and in Rome; the same yesterday, to-day, and forever." This is the law of which Hooker majestically proclaims, "Her seat is the bosom of God, her voice the harmony of the world: all things in heaven and earth do her homage; the very least as feeling her care, and the greatest as not exempted from her power."

"God is law, say the wise." In Him the moral order is eternally conceived, eternally realized. But the science of ethics leads to, does not start from, the divine concept. "If us, as know so little, can see a bit o' good and rights, we may be sure as there's a good and a rights bigger nor what we can know." So Mrs. Winthrop in Silas Marner; truly enough. The moral law is a natural revelation of an order of verities eternal, transcendental, noumenal. The correspondence of that law with the needs of our nature proclaims as with the voice of an archangel and the trump of God, that final causes are a necessary element in ethics. From the fact of moral

obligation we reason to its source in the Infinite and Eternal. It is a dictum of Leibnitz that the true way of proving the existence of God is to seek the reason of the existence for the universe, which is the totality of contingent things, in the substance which bears within itself the reason of its existence. The ephemeral race and the debile reason of man are among the most contingent forms of being. Only in the Self-Existent can a base be found for ethical ideas. The great legists to whom we owe the vast fabric of Roman jurisprudence knew this well. Hence their emphatic recognition of the transcendental foundation of private right. It was an expression of the august doctrine which they had learned from the philosophers of the Porch that universal reason governs the world; that the lives of men should be regulated by that supreme order which is justice in the soul, beauty in the body, and harmony in the spheres. But it is to the Founder of Christianity and the doctors of His religion -conspicuous among them the masters of the mediaval schoolthat the world owes the clearest, the most prevailing, the most cogent teaching as to the universality of right and the solidarity of mankind. Now this characteristic of universality is, I venture to think, the first and the most essential note of ethics. The theory of the moral law must be founded on reason. To make of it a mere deduction from experience is to perform a mortal operation upon it, is to reduce right and wrong to a question of temperament, of environment, of cuisine, of latitude and longitude. Kant knew this well. Hence the rule which he lays down for our conduct, the maxim by which we may try and test its ethical worth: Act so that the motive of thy will may always be equally valid as a principle of universal legislation. I do not say that this maxim is alone adequate as the fundamental thought of ethics. It may be open to the criticism that it is rather the uniform view of a criterion than the pregnant principle of morals. But, at all events, in its recognition of universality it is built upon the everlasting rock. What a change to turn from the ampler ether, the diviner air of this noble idealism, to the stifling empirical doctrine prevailing in our own country. I suppose that empiricism is due to the influence of Locke, whose reign is by no means over. There can be no question that his method if not his actual teaching does lead to empiricism. There can be as little that the moral philosophy of his disciple Paley is essentially empirical. Schopenhauer, in correction of a far greater thinker, observes that when Spinoza denies the existence of right apart from the State, he confounds the means for asserting right with right itself. This is unquestionably true. But the belief that human law can be the ultimate ground and the only measure of right appears upon the face of it so untenable that one is lost in wonder how it could possibly have obtained such credit. All right

the creation of positive law! The right to existence, for example? or the right of self-defence? or the right to use to the best advantage one's moral and spiritual faculties? Imagine a number of settlers in a new country before they have had time to frame a polity. Are they then devoid of these rights? Surely it is sufficient to ask such a question. But we are told that these rights arise from a contract express or implied. As a matter of fact society is not founded upon convention, although I allow a virtual compact whence is derived the binding obligation of laws regarding things in themselves indifferent. But if the rights which I have instanced exist at all-and in practice every one admits their existence-they possess universal validity. A contract may or may not be. It is contingent. But these rights must be. They are absolute. Right is founded on necessity. What is necessary and immutable cannot proceed from the accidental and changeable. To me it is evident, upon the testimony of reason itself, that there are certain rights of man which exist anterior to and independently of positive law, which do not arise ex contractu or quasi ex contractu, and which may properly be called natural, because they originate in the nature of things. And here let me express my regret at the scanty and uncertain treatment which this subject has received from one who is by common consent the most accomplished of English jurisprudents. In his Ancient Law, Sir Henry Maine tells us that "the law of Nature" as the great Roman jurisconsults conceived of it, "con fused the past and the present;" that "logically it implied a state of nature which once had been regulated by natural law," while "for all practical purposes it was something belonging to the present, something entwined with existing institutions, something which could be distinguished from them by a competent observer." The law of nature, as I understand it, and as I believe the Roman jurisconsults, following the great Hellenic philosophers from Aristotle downward, understood it, belongs to the domain of the ideal. It is the type to which positive law should endeavor, as far as may be, to approximate; but the approximation must vary indefinitely according to social conditions. I am well aware that what is noumenally true may be phenomenally false; that in the life of men, principles must be viewed not in the abstract but in the concrete, as embodied in actual facts and institutions. I quite agree with Sir Henry Maine that, in jurisprudence we must rigorously adhere to the historical method. But it also appears to me that the historical method alone is insufficient. Its conclusions must be tested, must be corrected by that reason which is the ultimate court of appeal. The law of nature is an expression of the nature of things in their ethical relations. The natural rights of man have an ideal-which means most real-value, as showing the goal to which society in

unison with individual efforts should tend. We live in a world of objects conditioned by ideas. A right is that one possession of the individual, with which, in virtue of the moral law, no power outside him can interfere. The office of positive law is to guard those rights. "The faculty of constraint," Kant says, "aims at the vindication of my natural rights by suppressing their violation." Positive law is the rule of reciprocal liberty, the guardian of the natural rights of the individual which are the rule of his liberty. The idea of personality is limited by the idea of solidarity. In the true social theory these ideas are reconciled, not abolished. For, pace Mr. John Morley, society, like the individual, is an organism, not a machine. Hence we may accept Kant's definition of freedom, "the rights of the individual so far as they do not conflict with the rights of other individuals.” With this proviso it must be maintained that man is naturally free; that he has a natural right to the normal development and exercise of his various faculties, and therefore that he has a right to the means necessary to their development. It appears to me of the utmost importance to insist upon these truths at the present day, when there is so strong and so growing a tendency in the popular mind to believe that virtue and duty, justice and injustice, are mere matters of convention; when for the eternal distinction between true and false, right and wrong, we are so peremptorily bidden to substitute the uncouth shibboleths of a sect of physicists. I had occasion, not long ago, to cite the well-known dictum, "The rights of man are in a middle." The printers were good enough to make of it, "The rights of man are in a muddle." In a muddle indeed! My object in this paper has been to let in, if possible, a little light upon the weltering chaos; to help my readers, in however small a degree, to give order and fixity to their conceptions upon social relations. But one is nothing in England if not what is called "practical." Your average Englishman does not care greatly whether there be a God or not, provided the price of stock does not fall. There is truth in Mr. Carlyle's account of him, that if you want to awaken his real beliefs, you must descend into "his stomach, purse, and the adjacent regions." Kant tells that a man has reason and understanding. Reason seems to have well-nigh departed from the British mind since the overthrow among us of the Aristotelian philosophy by Hobbes and Locke. I quoted, at the beginning of this paper, the statement, which seems to me quite correct, that Mr. Herbert Spencer is emphatically the philosopher of the present day in England and in America. No wonder. His is essentially what the French call a raison d'épicier, a grocer's intellect. He is most industrious, most precise, most conscientious, most clear when he chooses, within certain limits. But they are narrow limits, like the four walls of a shop. Of the vast horizons beyond,

« PreviousContinue »