The use of our concept in this connection is firmly bound to its use in the preceding classes. For it is no accident that in the mechanistic process called evolution human aims and purposes have come to be furthered and achieved principally through the power and skill of the arm and hand. The “right” arm and hand point reasonably straight, throw missiles in a fairly direct manner, and their powerful shots bring down the quarry immediately. (Class A.) These parts of the body are also among the most educible and skilful in the technique requisite for bringing about a desired end. Their action-patterns are indeed often the very method by which ambitions are achieved. (Class B.) And when we have reached a judgment that is deemed to be true or in accordance with the facts of the matter (Class C.), it is our “right” hand that is ready to be motivated in its defence. Even the art of writing, in the original sense of cutting, tearing, or scratching to produce a record or a design, is not at all distantly related to the functions of this part of the body.
With this clearly understood, the transition is easy to make to
Class E
Legal “Rights”; that is, Those Claims and Interests the Establishment and Protection of Which May Be Secured by Force and even Violence.[14]
As used in this connection, “right” is partially equivalent to might, since our concept here connotes an organized force,—a physical power,—which, under given conditions, can be employed for the purpose of establishing claims and protecting interests. This organized force is popularly referred to as “the Law,” especially by those who indulge in back-yard altercations and cry out: “If you do that again, I’ll have the Law on you!” And the ordinary man, whose six or seven years of public schooling have implanted in him the fixed habit of reifying all abstractions, understands the law as equivalent to a transcendental force of some kind which makes his threats effective. As befits the mental calibre of such a man, the law frequently becomes synonymous with the functions of the police, who are naïvely supposed to know when and how to protect everybody’s legal rights. This is an error. Not only are the police extremely ignorant persons, but they have scarcely any legal status whatever. They are “the tolerated remnant of the autocratic power which absolute monarchs once exercised over their subjects.” Law and legal rights are functions of the courts, while the police are simply unattached huskies hired to bring into court those who do not come there of their own initiative. We must look elsewhere for the source of the might which legal rights are said and felt to possess, namely, in the origin and function of law itself.
Briefly stated, law originated as a means to protect men against loss of property, against bodily harm, and against damage to their personality through the actions of their fellows. It did not originate as a means to prevent or repair the damage to life or property caused by cloudbursts or lightning, or the loss of income brought about by avalanches, laziness, or disease; it had only to do with actions for which some man could be held responsible. Now the actions which produce the loss of property, bodily harm, and damage to personality are usually actions arising from, as well as leading to, emotional disturbances. Theft, murder, and libel, for example, are about the most potent stimuli to violent retaliation that can be provided. Nevertheless, it is sound psychology that most emotions quickly cool if the stimulus be withdrawn, that wrath has to be nursed if it is to be kept warm, and that absence does not make the heart grow fonder. Here is where the law performs its chief function. For the law is simply an ingenious device to get a judgment on the conflict of human interests which shall not be tinged with the passions that provoked the conflict. And while legal procedure may not always be fair, especially in the eyes of the loser, its methods certify that it shall not be precipitous or rancorous in rendering a decision. Legal rights, therefore, are not equivalent to the capacity for revenge, but rather consist in the ability to get old quarrels looked at by new and unbiased eyes. Herein consists much of the prestige of the law, and since prestige has always been regarded as a kind of power, men are not slow to employ it in the establishment of their claims and the protection of their interests.
Law, however, is frequently misinterpreted when its function is thought to be preventative of discord, rather than judicial and equitable. Law is no guardian angel. No law can prevent the unobserved Richard Roe from murdering the defenceless John Doe; nor can it hinder the murderer (still unobserved) from altering Doe’s will to his own material advantage; neither can it be guaranteed to forestall the murderer from making the false plea that Doe was about to assault his daughter. The law did not make man in its own image; according to scripture it was God who did that. Law does not set out to protect the careless or the poor in spirit. Its machinery is normally put into operation only for those with enough initiative to look out for their own interests. If a patentee knowingly allows one infringement of his patent rights, he might as well donate his invention to the public. The law does not hunt for trouble, or carry on a bureau for the exchange of expressions of malcontent. It does not even demand that a clearly known offender of society, and one conscious of his offence, enter a plea of guilty. Actually, the function of law is simply to preserve and to restore order and peace in society, and not to define what that order and peace shall be. Were ninety per cent of the people in the world suddenly to become stubbornly devoted to thieving, the public peace would have to be redefined in terms of their attitude toward property. Moreover, as it is now, the law merely attempts to imitate the security which is provided by “gentlemen’s agreements,” which security is largely maintained without the help of the courts. For it is very plain that millions keep the peace, while only a few hundreds know the law. Law, then, may be fairly characterized as an impersonal referee, whose business it is to persuade and oblige the disturbers of the social equilibrium to employ the methods and standards of conduct which have always marked free men.
With this by way of introduction, it is not difficult to understand why “right” in the legal sense of the word is so closely related to might. For the term “legal rights” refers not only to those claims and interests which may be established and protected, but also and rather to those which have long been secured by force. In other words, some of them have the advantage of the momentum of custom and tradition. Now custom and tradition, whatever else they may be, are certainly action-patterns which are generated and maintained by the bodies of human beings. They are habits, both of overt action and covert thought,—response processes of the neuro-muscular apparatus. The tenacity of these habits, moreover, is due to the combined action of two well-known physiological mechanisms,—the conditioned reflex and the circular reflex. The conditioned reflex, which is dependent upon the repetition of stimuli, is particularly prevalent where day by day the same persons, the same kinds of property, and the same predicaments of living are met with; and so we may say that customs and traditions (and with them the inevitable claims and interests) are created by the environment as much as by the organism. The circular reflex, or proprio-ceptive reinforcement of any action-tendency, governs much of our behavior, even though we little suspect it. It underlies occupational postures, idiosyncracies of gait and of facial expression, and indeed, without circular reflexes we should not have either tenacity of purpose or the ability to hold a grudge. Its function in the establishment and maintenance of those action-patterns on which tradition depends is of paramount importance. And since these two reflexes are largely responsible for the difficulty with which habits of action and thought are broken, the support which they give to maintaining the tradition of legal rights is hardly to be overestimated. Thus, from the mechanistic point of view, the homage which we give to legal rights is after all simply equivalent to the expenditure of energy in our bodies for the purpose of maintaining particular habits of action. Indeed, in those who maintain the public peace, all the energy which goes into actions which promote the order of society is literally spent to uphold legal rights of one sort or another. It is this energy, this physical power, which we referred to recently when we said that “right” is partially equivalent to might.
And yet, in spite of the apparently great amount of muscle power that is, so to speak, behind all legal rights, from the logical point of view, the use and effectiveness of this power is altogether contingent upon the exact nature of the claim and interest which one desires to be secured. The logical statement of the situation here involved would take the form of a hypothetical proposition, namely, If the claim or interest is of a certain kind, then and then only may it be established and protected. And while this might seem at first to indicate that legal rights were seriously lacking in point of authority, yet this is not the case, for the strongest possible assertions that can be made are always couched in the form of hypothetical propositions. As Couterat states in his “Algebra of Logic,” “Every proposition which implies another is stronger than the latter, and the latter is weaker than the one which implies it.” The blunt categorical proposition is far less powerful, since by itself it implies nothing whatever, whereas hypotheticals leave no doubt as to the necessary consequences. All the laws of nature, which, by the way, cannot be broken, are stated in hypothetical form. Moreover, since it is the antecedent, and not the consequent, of a hypothetical proposition which gives it strength, it is easy to see that any particular claim and interest is rendered all the more likely of being established and protected if similar claims and interests have long been recognized in the law as valid. In practice we find this to be the case: the common law which is the oldest code is also the one to which new claims to legal right are invariably referred.
Having looked at the picture of legal rights from one angle, let us now look at it from another. While in strict logic the statement of these rights in the form of a hypothetical imperative gives them an undeniable strength, it must now be admitted that from the pragmatic point of view it signifies at times a discouraging weakness. For it has often been the case that the establishment of claims and the protection of interests has in practice depended upon such vexatious variables as the pet theories of experts (e. g., alienists), the hunger, fatigue, and stubbornness of jurymen, the internal secretions of judges, a crowded or empty condition of the jails, current sociological theory, and even such astonishing things as one’s affiliation with secret societies, or one’s political “pulls,” not to mention, except by a passing remark, the determination of a litigant to carry his case to the higher courts clear beyond the ability of his antagonist’s purse to follow him there. So that if we ask whether some particular claim or interest can and will be established or protected, the real answer in a large number of border-line cases is, “Nobody knows.” Justice, who carries in her hand a balance whereby to weigh the evidence fairly, has also her eyes blindfolded against seeing what manner of weights are put into either pan. This defect of law, however, is not to be wondered at when we remember that legal theory cannot anticipate all of the innumerable claims and interests which either honest or knavish persons are likely to support as valid. If the theory of law had been as complicated as human society has become, it could not have accomplished the half of what it has already achieved.