Limits of State Power-Humboldt and J. S. Mill on these Limits-Remarks on .243-281 CHAPTER VI. The Organization of States... CHAPTER VII. ..282-302 Liberty and Equality in Conflict, or Communism and Socialism......... ..303-323 Monarchies Ancient City-Kings-Absolute Monarchy in several Forms-Imperial POLITICAL SCIENCE. Part 1. DOCTRINE OF RIGHTS AS THE FOUNDATION FOR A JUST STATE. IF, according to a true theory of man, there are any perPlan and starting- Sonal rights, they can be realized only in and point of this treatise. by means of the state. If there is any such thing as a just state, one of its offices consists in protecting personal rights. Rights and the state, then, have intimate. connections, so that either we must assume a certain theory and system of rights in treating of the state, or we must examine the doctrine of rights and make it our starting-point for the consideration of organized society. In this treatise we intend to include them both; but the theory of rights will be made to serve as a preface to the theory of the state, rather than to take an independent place, such as it might have in a work devoted to natural law. We Some things must be assumed in an essay like this. assume the personality and responsibility of man as a free moral being. We assume also a moral order of the world, not founded on utilities that are in such a sense discoverable by man that he could construct a system of laws for human actions upon them, however the divine author of the world may have arranged it on such a plan. We discard the greatest happiness theory as of no use, nay, as harmful in the de partment of politics; and believe that in human relations there must be a distinction drawn between benevolence and justice. At the same time we admit that happiness is an end which the individual and the state may rightfully aim at, and an important one, although subordinate to the right and to the ends contained in the perfection of human nature. We hold, also, most firmly to a system of final causes, running through the moral and social as well as, and more clearly than, through the physical system, which, in the plan of man's nature, appear in most wise and beneficent preparations for a good and just society. We wish, also, to forewarn our readers that in starting from the point of individual rights we by no means would be understood as believing the protection of rights to be the only end for which the state exists: far from this, we hold that a good state has other most important objects placed before it, as we hope to show in the sequel. But a state has no right to exist, and does not deserve to be called an organism fit for human society, which is not a just state. Now, a true view of human rights is necessary, in order that a state may be intentionally just. Possessed of this quality alone, it would be an imperfect state; but without this quality it would not deserve the name of a state for human beings at all. The plan of the present work will require us to consider first the general conception of rights, which will be followed by all necessary explanations of particular rights; after which will come an exposition of the theory of the state. This will be followed by practical politics or a discussion, historical and critical, of the means that have been used, or that are best fitted for attaining to the ends implied in the existence of the state, so far as they seem to be worthy of notice. $2. The subjects of which we propose to treat in the first part of this work are sometimes comprised under the science of natural law, or the law of nature,terms which owe their origin to the Roman jurists, but are Rights and natural law. used in modern times, with an altered signification. Grotius (de jure bell. et pac. i. 1. § 10) defines jus naturale in substance as the conclusions of right reason in regard to the moral quality of an action from its conformity or want of conformity with the moral and social nature of man. The terms, then, will include both morality and jus, if not something more. Sir James Mackintosh, at the beginning of his discourse on the law of nature and nations, gives the following account of this branch of study. "The science which teaches the rights and duties of men and of states has in modern times been called the law of nature and of nations. Under this comprehensive title are included the rules of morality, as they prescribe the conduct of private men toward each other in all the various relations of human life; as they regulate both the obedience of citizens to the laws and the authority of the magistrate in framing laws and in administering government; and as they modify the intercourse of independent commonwealths in peace, and prescribe limits to their hostility in war. This important science comprehends only that part of private ethics which is capable of being reduced to fixed rules." This definition seems to include all private, political, and international rights and obligations, but confines the science to a department of ethics where fixed rules can be applied. But since the irreducible part of private ethics depends upon an idea or an opinion concerning our nature as really as that which can be subjected to rules, it is not easy to see why the term natural law should be restricted to the lat ter. And, again, while it is in theory true that the law of nations belongs to the same ethical science with private and public right or jus, practical convenience seems to require that it be treated of by itself, since the greater part of international law is of a positive character, not deducible directly from fixed rules of ethics, but ascertained from convention only. Nations, being independent communities, it is free for them to determine on what conditions they will hold intercourse with one another. All these branches of study depend on ethical principles; but the conception of rights leads us into a field so peculiar and distinct from the wider department of morals, although contained within it, and is also so important for the proper consideration of man in the state, that I cannot hesitate to abandon the old term, natural law, preferring to constitute the doctrine of rights and that of the state as two branches of political science. spheres. $ 3. The science of morals relates to all those acts, internal and Moral and jural external, of moral beings, over which the will can have control, and without which a perfectly right life is impossible. But among these acts, the internal ones, such as feelings, motives, intentions, cannot, as a class, be accurately judged of by finite beings unless by him who is conscious of them: they can, therefore, in themselves, never be the subject-matter of human law, positive or prohibitory. It is only outward acts, taken in connection with the inward intention which they disclose-including also designed neglect to act that human law can notice. How far a right-thinking society will take notice, in its laws and punishments, of wrong outward actions, is a subject which we shall have to consider hereafter. At present we refer to the subject only to show that there must be a limit to the laws of society within the broader sphere of the laws of a perfect system of morals. Society was never meant to be the principal means by which the perfection of the individual was to be secured, but only the condition without which that perfection would be impossible. In order to fulfil his work in the world the individual must have certain powers of action, which neither public law nor the will of other individuals can be permitted to control. Thus, if he would work he must have the free use of his muscles; if he would join another individual in working, they two must agree upon the terms; if a man and a woman enter into a state of marriage it must be with free consent, unless it can be shown that the strong can compel the other. |