Eclectic Magazine of Foreign Literature, Science, and Art, June 1885

by Various

Let us first consider a preliminary question, on which I accept Mr. Spencer’s views, but for different reasons from his: On what are individual rights founded, and what are the limits of State power? Mr. Spencer refutes with pitiless logic the opinions of those who, with Bentham, maintain that individual rights are State concessions, or who, like Matthew Arnold, deny the existence of natural rights. The absurdity of Bentham’s system is palpably evident. Who creates the government? The people, says he. So the government, thus created, creates rights, and then, having created rights, it confers them on the separate members of the sovereign people, by which it was itself created. The real truth is, that government defines and sanctions rights, and employs the public strength to enforce their being respected, but the rights themselves existed before.

Referring to the history of all primitive civilization, Mr. Herbert Spencer proves to Mr. Matthew Arnold that in familial and tribal communities there existed certain customs, which conferred recognized and respected rights, before ever any superior authority which could be designated by the name of State had been formed. Only, I think Mr. Herbert Spencer is wrong in making use of the term “natural rights.” This expression was an invention of the French philosophers of the eighteenth century, and it is still employed in Germany by a certain school of philosophers as Naturrecht. Sir Henry Maine’s clever and just criticism of this expression in his book “Ancient Law” should warn us all of the vague and equivocal meaning it conceals. The jurists and philosophers of the seventeenth and eighteenth centuries attached two very different significations to the term “natural rights.” They sometimes applied it to the condition of primitive societies, in which their optimism led them to dream of a reign of justice, liberty, and equality, and at other times they made use of it when speaking of the totality of rights which should be possessed by every individual, by reason of his manhood. These two conceptions are equally erroneous. In primitive societies, in spite of certain customs which are the embryo of rights, might reign supreme, as among animals, and the best armed annihilate their weaker neighbors. Certainly, one would look in vain there for a model of a political constitution or code suitable to a civilized people. Neither can it be maintained that the “Rights of man,” as proclaimed by the American and French Revolutions, belong to each individual, only because he forms part of the human species. The limit of rights which may be claimed by any one individual must depend upon his aptitudes for making good use of them. The same civil code and the same political institutions will not equally suit a savage tribe and a civilized nation. If the granting of the suffrage to all were likely to lead a people to anarchy or to despotism, it could not be called a natural right, for suicide is not a right.

If one analyze completely the expression “natural rights,” one finds that it is really not sense. Xavier de Maistre, annoyed by the constant appeals to nature which are to be found in all the writings of the eighteenth century, said, very wittily: “Nature, who and what is this woman?” Nature is subject to certain laws, which are invariable; as, for instance, the law of gravitation. We may call these “laws of nature,” but in human institutions, which are ever varying, nothing of the sort can exist. This superior and ideal right, which is invoked for the purpose of condemning existing laws, and claiming their reform or suppression, should rather be called rational right—that is to say, right in conformity with reason.

In every country, and at all times, an order of things may be conceived—civil, political, penal and administrative laws—which would best conform to the general interest, and be the most favorable to the well-being and progress of the nation. This order of things is not the existing one. If it were, one might say, with the optimists, that all is for the best in the best of possible worlds, and a demand for any amelioration would be a rebellion against natural laws, and an absurdity. But this order of things may be caught sight of by reason, and defined with more or less accuracy by science; hence its name of rational order. If I ask for free trade in France, for a better division of property in England, and for greater liberty in Russia, I do so in the name of this rational order, as I believe that these changes would increase men’s happiness.

This theory permits of our tracing a limit between individual liberty and State power.

Mr. Herbert Spencer proves very clearly that there are certain things which no man would ever choose to abandon to State power; his religious convictions, for instance. On the other hand, all would agree that the State should accept the charge of protecting frontiers and punishing theft and murder, that is to say, the maintaining of peace and security at home and abroad; only here, like most Englishmen, Mr. Herbert Spencer invokes human will. Find out, he says, on the one hand, what the great majority of mankind would choose to reserve to an individual sphere of action, and, on the other, what they would consent to abandon to State decisions, and you will then be able to fix the limit of the power of public authority.

I cannot myself admit that human will is the source of rights. Until quite recently, in all lands, slavery was considered a necessary and legitimate institution. But did this unanimous opinion make it any more a right? Certainly not. It is in direct opposition to the order of things which would be best for the general welfare; it cannot, therefore, be a right.

Until the sixteenth century, with the exception of a few Anabaptists who were burnt at the stake, all believed that the State ought to punish heretics and atheists. But this general opinion did not suffice to justify the intolerance then practised. The following line of argument, I think, would be most in keeping with individual interests, and, consequently, with the interests of society in general: A certain portion of men’s acts ought not to be in any way subject to sovereign authority, be it republican or monarchical. But what is to be the boundary of this inviolable domain of individual activity? The will of the majority, or even of the entire population, is not competent to trace it, for history has proved but too often how gross have been the errors committed in such instances. This limit can, therefore, only be fixed by science, which, at each fresh progress in civilization, can discover and proclaim aloud where State power should cease to interfere. Sociological science, for instance, announces that liberty of conscience should always be respected as man’s most sacred possession, and because religious advancement is only to be achieved at this price; that true property, or, in other words, the fruit of personal labor, must not be tampered with, or labor would be discouraged and production would diminish; that criminals must not go unpunished, but that justice be strictly impartial, so that the innocent be not punished with the guilty.

It would not be at all impossible to draw up a formula of these essential rights, which M. Thiers called necessary liberties, and which are already inscribed in the constitutions of America, England, France, Belgium, Holland, and all other free nations. It is sometimes very difficult to know where to set bounds to individual liberty, in the interests of public order and of the well-being of others; and it is true, of course, that either the king, the assembly, or the people enacts the requisite laws, but if science has clearly demonstrated a given fact it imposes itself. When certain truths have been frequently and clearly explained, they come to be respected. The evidence of them forms the general opinion, and this engenders laws.

To be brief, I agree with Mr. Herbert Spencer that, contrary to Rousseau’s doctrine, State power ought to be limited, and that a domain should be reserved to individual liberty which should be always respected; but the limits of this domain should be fixed, not by the people, but by reason and science, keeping in view what is best for the public welfare.