Old-Fashioned Ethics and Common-Sense Metaphysics / With Some of Their Applications

by William Thomas Thornton

Instead of being valueless, the particular rights of which Mr. Mill speaks so disparagingly, appear to me to possess a value which can scarcely be exaggerated. They are, as may be readily perceived, identical with the two which I have termed 'natural,' and of which I began by saying that they are exceedingly elementary, but of which I have now to add that they are also all-comprehensive, for that there are no genuine rights whatever, however numerous or complex, which neither are included within, nor branch out from, them. This will be manifest on comparison of them with the items enumerated in any other catalogue of rights; as, for instance, with the one drawn up by Mr. Mill, according to whom all rights may be classified as follows:—(1) Legal rights; (2) moral rights; (3) the right of every one to that which he deserves; (4) the right to fulfilment of engagements; (5) right to impartiality of treatment; (6) right to equality of treatment.[9] Each of these varieties will repay a brief examination.

Under the head of 'legal' rights are commonly placed, not those only which are conferred, but those also which are confirmed, by law. Such as law has merely confirmed, however, are of course not the creatures of law. But it is admitted on all hands that a law may be unjust—that is to say, it may without consent from the parties concerned, infringe some previously existing right—and as the right so violated cannot have been created by law, inasmuch as what law had been competent to create, law would be equally competent to cancel—it is clear that there must be rights other than those created by law, rights whose origin was independent of, and anterior to, law. It is apparently to rights of this description that Mr. Mill applies the name of 'moral' rights. Examples of them are a man's rights to personal liberty and to property in whatever belongs to him as having become his by honest means, to both of which, unless he had forfeited them by misconduct, he would be equally entitled, whether his title to them were or were not recognised by law. The only genuine rights which law can create, or consequently can have to confer, are privileges in respect of person or property other than one's own. But such legalised privileges are not necessarily rights. Whether they are so actually or not depends mainly on the character of the legislative authority. A right to interfere with rights not based upon law cannot be conferred without the consent of the parties in whom the independent rights are vested, given either directly by themselves or indirectly through their representatives. If a legislative body be truly and thoroughly representative of the community which it controls, then every one of its enactments, however bad or foolish, is virtually an engagement to which every member of the community is a party, and any privilege arising out of it becomes to all intents and purposes a right. If, on the other hand, the legislative authority be autocratic, or if it represent only certain favoured sections of the community, then none of its enactments, however wise and good, of which a majority of the public disapprove, and which interfere with the rights termed by Mr. Mill 'moral,' are morally binding, except on the legislators themselves and their immediate constituents. Any one else may quite blamelessly break the law, and resist any privilege thereby created, though he must, of course, be prepared, in case of detection, to take the legal consequences of his disobedience. For example, protective duties, however impolitic, if imposed because a majority of the nation were of opinion that a certain branch of domestic industry had better be fostered by protection, could not be evaded without injustice to those engaged in the protected industry, though there would be no injustice in smuggling, if they had been imposed in opposition to the general sense of the public by a packed Parliament or an absolute monarch. The same legal monopoly, which in the one case could not be justly evaded, could not in the other be justly enforced. A legal privilege, in short, becomes a right only when a majority of those at whose expense it is to be exercised, have formally consented either directly or indirectly to its being exercised; and it then becomes a right solely because an engagement has been entered into, in virtue of which, whatever is requisite for its satisfaction has become due. Thus it appears that, whatever legal rights are genuine, and are not at the same time 'moral' rights also, resolve themselves into specimens of the right to fulfilment of engagements, and belong not more to the first than to the fourth of Mr. Mill's categories, to which latter, therefore, we may at once transfer our attention.

Why is it, then, that every one has a right to fulfilment of engagements, to have faith kept with him, to have promises observed? Solely, as it seems to me, because whatever has been promised to any one becomes eventually his due, and because whatever is due or owing ought to be paid. A promise is nothing less than a prospective transfer of property in some thing, or in the advantage derivable from some action, and when the time appointed for making the transfer arrives, whatever has been promised, whether actually transferred or not, becomes the complete property of, and in the fullest sense of the word belongs to him to whom it has been promised; so that the right to fulfilment of engagements resolves itself into the moral right of every one to have that which belongs to him, and we have already seen that every legal right which cannot on other grounds be shown to be a moral right resolves itself into a right to fulfilment of an engagement. Whence it follows that there are no legal rights whatever which are not likewise moral rights, and which might not therefore be equally rights, even though they had never been legalised. Whence, and from what has just been observed with respect to the right to fulfilment of engagements, it further follows that of the five branches of Mr. Mill's classification, the first and fourth may without inconvenience be dispensed with, and that the second will suffice to do duty for itself and for the other two.

We have next to consider a person's right to that which he deserves, with reference to which, and to my assertion that there is no necessary correspondence between the remuneration which a labourer ought to receive and either his merits or his needs, Mr. Mill inquires as follows:—'If justice be an affair of intuition, if we are guided to it by the immediate and spontaneous perceptions of the moral sense, what doctrines of justice are there on which the human race would more instantaneously and with one accord put the stamp of its recognition than these—that it is just that each should have what he deserves, and that, in the dispensation of good things, those whose wants are the most urgent should have the preference?' But surely however just it be that each should have what he deserves, it is so only on condition that he have it from those from whom it is due, and do not take it from those from whom it is not due. The latter, surely, at least as much deserve to be allowed to keep what they have already by honest means got, as others to get what they have not yet got. But if so, then that these should be deprived of their deserts, in order that those may get theirs, is surely about the very last doctrine that ought to be put forward as self-evident and intuitive. 'But,' Mr. Mill proceeds to ask, 'if there be in the natural constitution of things something patently unjust, something contrary to sentiments of justice, which sentiments, being intuitive, are supposed to have been implanted in us by the same Creator who made the order of things that they protest against—do not these sentiments impose upon us the duty of striving by all human means to repair the injustice? And if, on the contrary, we avail ourselves of it for our own personal advantage, do we not make ourselves participators in injustice, allies and auxiliaries of the Evil Principle?'[10] Now, as I have already said, I am myself no intuitionist, but if I were, I should not the less feel warranted in here replying that by no theory of justice, intuitive or other, can the passive spectator of an injustice to which he is no party be bound to assist in repairing the injustice, simply because he has the means. A creditor denied payment of his fair debts does not get what he deserves; but upon whom, except the defaulting debtor, does it therefore become incumbent to repair the latter's injustice by paying his debts? And if there be in the general order of mundane affairs, as—provided I may attribute the existence of it, as of all other evil, not to God, but to the devil—I don't mind admitting there may be—something which prevents many of our fellow-creatures from getting their desserts, something contrary, therefore, to our sentiments of justice whether those sentiments have been implanted in us by the Creator or not, I still maintain that those sentiments do not impose upon us the duty of striving to correct the injustice. They necessarily stimulate us more or less powerfully, according to their own intrinsic strength, to undertake that noblest of all tasks, but they do not render it imperative upon us. Whether, if we actively avail ourselves of the injustice for our own profit—though this, by the way, is no more than every one of us does who takes advantage of competition among labourers to obtain labour for a less price than he perceives it to be worth—we are not making ourselves auxiliaries of the Evil Principle, may be matter of opinion; but, at all events, we do not even then become participators in an injustice which we did not create, and do not uphold or help to perpetuate, but merely accommodate ourselves to. At worst, we are but accessories to it after the fact. In simply accepting the situation and striving to make the best of it for ourselves, without trying to make it better and only abstaining from making it worse for others, our conduct may be contemptible, mean, base, disgusting, or what you will, only not iniquitous; for whatever, short of their deserts, may, from the cause supposed, be received by our fellow-creatures, although in one sense plainly due to them, is as plainly not due from us, and we cannot, without palpable injustice, as well as palpable abuse of words, be charged with injustice for merely declining to pay debts that we do not owe.

The rights to impartial and to equal treatment need not detain us long. There is no right to impartiality except where impartiality is due, and it is only in a small minority of cases that impartiality is due. There is nothing iniquitous in showing favour to the extent of giving one person more than his due, provided no other person be prevented from having as much as his due. The lord of the vineyard who gave unto all his labourers alike, the same to those who had wrought for him but one hour as to those with whom he had agreed that for a penny they should bear the burden and heat of the day, did the latter no wrong; his eye was not the less good because theirs was evil. A judge, or an arbitrator, or the conductor of a competitive examination, is bound to make his award without respect of persons, because he cannot favour one without withholding from some other what that other ought to have. On every distributor of Government patronage, likewise, it is morally incumbent to select for the public for whom he is trustee, the best servants he can find. An English Prime Minister has no right to make his son a Lord of the Treasury or of the Admiralty, if he know of any one better fitted for the post and willing to accept it; and if he name any but the fittest candidate, he fails in his duty to the community on whose behalf he acts. But a private employer, acting for himself alone, is under no similar obligation, and may take whom he pleases into his service, and assign to him whatever position therein he pleases, without affording any cause for reasonable complaint to those more capable members of his establishment whom he places under one less capable. In short, except in those rare cases in which impartiality means rendering what is due, in which cases it is but another name for justice, there is nothing unjust in disregarding it.

As for equality, although its 'idea,' as Mr. Mill says, 'often enters as a component part both into the conception and into the practice of justice, and in the eyes of many persons constitutes its essence,'[11] I can think of no single case in which, unless by reason of some special agreement, it can possibly be due, or in which, consequently, there can be any right to it. Even that equal protection for whatever is indisputably one's own, the claim of all to which is commonly admitted almost as a matter of course, is really due from those only by whom the obligation to afford it has been tacitly or formally accepted. On this ground it is due from the public at large, and from those individuals to whom the public has delegated certain of its tutelary functions, but from no other individuals whatever. No one else is bound to take, for the protection of all other people, whatever pains or trouble he takes for his own security—to watch, for instance, as vigilantly that his neighbour's house as that his own is not broken into. And while the one solitary claim of any plausibility to universal equality of treatment requires to be largely qualified before it can be conceded, there is no other claim of the kind which does not carry with it its own refutation; there is no other which does not partake of the absurdity patent in the communistic notion that all the members of a society are entitled to share equally in the aggregate produce of the society's labour. How is it possible that an equal share can be everybody's due, if different persons may have different deserts, and everyone's deserts be likewise his due?

We have now gone completely through the list of artificially created rights, without finding one that does not derive all its validity from connection with some pre-existing right. We have seen that among so-called rights none whatever are genuine by reason merely of any extrinsic sanction they may have received, but that all real rights either are such intrinsically, or are based upon, or embody within them, some right purely intrinsic. We have seen that there are two rights endued with this intrinsic character—viz., that of absolute control over one's own self or person, and that of similar control over whatever else has by honest means come into one's exclusive possession, or become due or owing to him exclusively; and, because these rights, wherever the conditions necessary for their exercise occur, of necessity exist, springing up at once and full grown, in the necessary absence of any antagonistic rights that could prevent their existing, I have not scrupled to call them 'natural;' nor do I think that further apology can be needed for such application of the epithet. To maintain, moreover, that these natural rights constitute the essence of all artificial rights, was simply equivalent to saying that no so-called right can be genuine unless requiring for its satisfaction no more than already actually belongs or is due to its claimant; while every right which does require no more must be genuine, because there can nowhere exist the right to withdraw or to withhold from any one anything that is exclusively his. These seeming truisms are indeed diametrically opposed to a theory which enters on its list of friends names no less illustrious than those of Plato, Sir Thomas More, Bentham, and Mill. Still, whoever, undeterred by so formidable an array of adverse authorities, is prepared to accept the description of rights of which they form part, will have no difficulty in framing a theory of justice perfectly conformable thereunto.

The justice of an action consists in its being one, abstinence from which is due to nobody. The justice of inaction—for just or unjust behaviour may be either active or passive—consists in there being nobody to whom action, the reverse of the inaction, is due. 'Justice, like many other moral attributes, may be best defined by its opposite,' and all examples of injustice have this one point in common, that they withhold or withdraw from some person something belonging or due to him, or in some other way infringe his rights, and consequently wrong him. Conversely, a point common to and characteristic of all just acts and omissions, is that they neither prevent anybody from having that which is due to him, nor in any other way infringe any one's rights, and that they consequently do no one any wrong. It is not essential to the justice of conduct that anything due be thereby rendered. It suffices that nothing due be withheld. All conduct is just by which nobody is wronged.

It is further to be noted that all just conduct is of one of three kinds—that which justice peremptorily exacts; that which she merely permits, and may even be said barely to tolerate; and that which she approves of and applauds, without, however, presuming to enjoin it. Conduct of this last sort is just in that it leaves nothing undone which justice requires, but it is also more than just in that it does more than justice requires. To speak of it as simply just, is therefore somewhat disparaging. It is just in the sense in which the less is comprehended by the greater. He who faithfully fulfils an engagement that has provided for his making a reasonable return for whatever advantage he might obtain under it, shows himself simply just in the matter, and nothing either more or less. He who, having driven a hard bargain, insists rigorously upon it, giving nothing less, and taking nothing more than had been mutually stipulated, is likewise strictly just, but is also shabby, and deserves to be told so plainly. He who, besides making full return, according to contract, for value received, does something more, at some inconvenience to himself, out of regard for another's need, is not a whit more just than either of the other two, but he is generous into the bargain, and deserves thanks in proportion.

Rising out of these considerations are two others equally meriting attention.