Lectures on the Principles of Political Obligation / Reprinted from Green's Philosophical Works, vol. II., with Preface by Bernard Bosanquet

by Thomas Hill Green

24. Thus, though it may be possible and useful to show how the more seemingly artificial rights are derived from rights more simple and elementary, how the rights established by law in a political society are derived from rights that may be called natural, not in the sense of being prior to society, but in the sense of being prior to the existence of a society governed by written law or a recognised sovereign, still such derivation is no justification of them. It is no answer to the question why they should be respected; because this question remains to be asked in regard to the most primitive rights themselves. Political or civil rights, then, are not to be explained by derivation from natural rights, but in regard to both political and natural rights, in any sense in which there can be truly said to be natural rights, the question has to be asked, how it is that certain powers are recognised by men in their intercourse with each other as powers that should be exercised, or of which the possible exercise should be secured.

25. I have tried to show in lectures on morals that the conception expressed by the 'should be' is not identical with the conception of a right possessed by some man or men, but one from which the latter conception is derived. It is, or implies on the part of whoever is capable of it, the conception of an ideal, unattained condition of himself, as an absolute end. Without this conception the recognition of a power as a right would be impossible. A power on the part of anyone is so recognised by others, as one which should be exercised, when these others regard it as in some way a means to that ideal good of themselves which they alike conceive: and the possessor of the power comes to regard it as a right through consciousness of its being thus recognised as contributory to a good in which he too is interested. No one therefore can have a right except (1) as a member of a society, and (2) of a society in which some common good is recognised by the members of the society as their own ideal good, as that which should be for each of them. The capacity for being determined by a good so recognised is what constitutes personality in the ethical sense; and for this reason there is truth in saying that only among persons, in the ethical sense, can there come to be rights; (which is quite compatible with the fact that the logical disentanglement of the conception of rights precedes that of the conception of the legal person; and that the conception of the moral person, in its abstract and logical form, is not arrived at till after that of the legal person).

Conversely, everyone capable of being determined by the conception of a common good as his own ideal good, as that which unconditionally should be (of being in that sense an end to himself), in other words, every moral person, is capable of rights; i.e. of bearing his part in a society in which the free exercise of his powers is secured to each member through the recognition by each of the others as entitled to the same freedom with himself. To say that he is capable of rights, is to say that he ought to have them, in that sense of 'ought' in which it expresses the relation of man to an end conceived as absolutely good, to an end which, whether desired or no, is conceived as intrinsically desirable. The moral capacity implies a consciousness on the part of the subject of the capacity that its realisation is an end desirable in itself, and rights are the condition of realising it. Only through the possession of rights can the power of the individual freely to make a common good his own have reality given to it. Rights are what may be called the negative realisation of this power. That is, they realise it in the sense of providing for its free exercise, of securing the treatment of one man by another as equally free with himself, but they do not realise it positively, because their possession does not imply that in any active way the individual makes a common good his own. The possession of them, however, is the condition of this positive realisation of the moral capacity, and they ought to be possessed because this end (in the sense explained) ought to be attained.

26. Hence on the part of every person ('person' in the moral sense explained) the claim, more or less articulate and reflected on, to rights on his own part is co-ordinate with his recognition of rights on the part of others. The capacity to conceive a common good as one's own, and to regulate the exercise of one's powers by reference to a good which others recognise, carries with it the consciousness that powers should be so exercised; which means that there should be rights, that powers should be regulated by mutual recognition. There ought to be rights, because the moral personality,—the capacity on the part of an individual for making a common good his own,—ought to be developed; and it is developed through rights; i.e. through the recognition by members of a society of powers in each other contributory to a common good, and the regulation of those powers by that recognition.

27. In saying that only among 'persons' can there come to be rights, and that every 'person' should have rights, I have been careful to explain that I use 'person' in the moral, not merely in the legal, sense. In dealing, then, with such phrases as 'jura personarum' and 'personal rights,' we must keep in view the difference between the legal and ethical sense of the proposition that all rights are personal, or subsist as between persons. In the legal sense, so far as it is true,—and it is so only if 'person' is used in the sense of Roman law,—it is an identical proposition. A person means a subject of rights and nothing more. Legal personality is derived from the possession of right, not vice versa. Like other identical propositions, its use is to bring out and emphasise in the predicate what is included in the understood connotation of the subject; to remind us that when we speak of rights we imply the existence of parties, in English phraseology, capable of suing and being sued. In the ethical sense, it means that rights are derived from the possession of personality as = a rational will (i.e. the capacity which man possesses of being determined to action by the conception of such a perfection of his being as involves the perfection of a society in which he lives), in the sense (a) that only among beings possessed of rational will can there come to be rights, (b) that they fulfil their idea, or are justifiable, or such rights as should be rights, only as contributing to the realisation of a rational will. It is important to bear this distinction in mind in order that the proposition in its ethical sense, which can stand on its own merits, may not derive apparent confirmation from a juristic truism.

28. The moral idea of personality is constantly tending to affect the legal conception of the relation between rights and persons. Thus the 'jura personarum,' which properly = either rights arising out of 'status,' or rights which not only (like all rights) reside in someone having a legal status and are available against others having a legal status, but are exercised over, or in respect of, someone possessed of such status (e.g. a wife or a servant), come to be understood as rights derived from the human personality or belonging to man as man. It is with some such meaning that English writers on law speak of rights to life and liberty as personal rights. The expression might seem pleonastic, since no right can exist except as belonging to a person in the legal sense. They do not use the phrase either pleonastically or in the sense of the Roman lawyers' 'jura personarum' above, but in the sense that these rights are immediately derived from, or necessarily attach to, the human personality in whatever that personality is supposed to consist. There is no doubt, however, that historically the conception of the moral person, in any abstract form, is not arrived at till after that of the legal person has been thus disentangled and formulated; and further that the abstract conception of the legal person, as the sustainer of rights, is not arrived at till long after rights have been actually recognised and established. But the disentanglement or abstract formulation of the conception of moral personality is quite a different thing from the action of the consciousness in which personality consists.

29. The capacity, then, on the part of the individual of conceiving a good as the same for himself and others, and of being determined to action by that conception, is the foundation of rights; and rights are the condition of that capacity being realised. No right is justifiable or should be a right except on the ground that directly or indirectly it serves this purpose. Conversely every power should be a right, i.e. society should secure to the individual every power, that is necessary for realising this capacity. Claims to such powers as are directly necessary to a man's acting as a moral person at all—acting under the conception of a good as the same for self and others—may be called in a special sense personal rights (though they will include more than Stephen includes under that designation); they may also be called, if we avoid misconceptions connected with these terms, 'innate' or 'natural' rights. They are thus distinguished from others which are (1) only indirectly necessary to the end stated, or (2) are so only under special conditions of society; as well as from claims which rest merely on legal enactment and might cease to be enforced without any violation of the 'jus naturae.'

30. The objection to calling them 'innate' or 'natural,' when once it is admitted on the one side that rights are not arbitrary creations of law or custom but that there are certain powers which ought to be secured as rights, on the other hand that there are no rights antecedent to society, none that men brought with them into a society which they contracted to form, is mainly one of words. They are 'innate' or 'natural' in the same sense in which according to Aristotle the state is natural: not in the sense that they actually exist when a man is born and that they have actually existed as long as the human race, but that they arise out of, and are necessary for the fulfilment of, a moral capacity without which a man would not be a man. There cannot be innate rights in any other sense than that in which there are innate duties, of which, however, much less has been heard. Because a group of beings are capable each of conceiving an absolute good of himself and of conceiving it to be good for himself as identical with, and because identical with, the good of the rest of the group, there arises for each a consciousness that the common good should be the object of action, i.e. a duty, and a claim in each to a power of action that shall be at once secured and regulated by the consciousness of a common good on the part of the rest, i.e. a right. There is no ground for saying that the right arises out of a primary human capacity, and is thus 'innate,' which does not apply equally to the duty.

31. The dissociation of innate rights from innate duties has gone along with the delusion that such rights existed apart from society. Men were supposed to have existed in a state of nature, which was not a state of society, but in which certain rights attached to them as individuals, and then to have formed societies by contract or covenant. Society having been formed, certain other rights arose through positive enactment; but none of these, it was held, could interfere with the natural rights which belonged to men antecedently to the social contract or survived it.

Such a theory can only be stated by an application to an imaginary state of things, prior to the formation of societies as regulated by custom or law, of terms that have no meaning except in relation to such societies. 'Natural right,' as = right in a state of nature which is not a state of society, is a contradiction. There can be no right without a consciousness of common interest on the part of members of a society. Without this there might be certain powers on the part of individuals, but no recognition of these powers by others as powers of which they allow the exercise, nor any claim to such recognition; and without this recognition or claim to recognition there can be no right.