Right of common

“ Each sovereignty concedes a certain quantity of itself, for the purpose of forming the common right. This quantity is the same for all of us. This identity of concession which each makes to all, is called Equality. Common right is nothing else than the protection of all beaming on the right of each. ”

“ The common good must suffer more from resistance to a law or to the ordinance of a legal authority, than from the individual's conformity to a particular law or ordinance that is bad, until its repeal can be obtained. It is thus the social duty of the individual to conform, and he can have no right, as we have seen, that is against his social duty; no right to anything or to do anything that is not involved in the ability to do his duty. ”

“ And, looking deeper, we shall find in the very exaggeration of these principles the confirmation of our doctrine; because, if equality of conditions and universal association are not soon realized, it will be owing to the obstacle thrown for the time in the way of the common sense of the people by the stupidity of legislators and judges ”

“ That every man of the commonalty (excepting infants, insane persons, and criminals) is, of common right, and by the laws of God, a freeman, and entitled to the free enjoyment of liberty.
“That liberty, or freedom, consists in having an actual share in the appointment of those who frame the laws, and who are to be the guardians of every man’s life, property, and peace: for the all of one man is as dear to him as the all of another; and the poor man has an equal right, but more need, to have representatives in the Legislature than the rich one. ”

“ They all find their authority and justification in the public good; nor does any one now attempt to resist a tax or defend a privilege, but by appealing to this great test of right, the interests of the community.
You see too in jurisprudence, that all those principles which grow out of barbarous usages, or were the result of accident, or of mistaken theory, are gradually made to give way to the light of reason and the spirit of philosophy. They conform more and more to the common sense and common feelings of mankind. ”

“ Is the assertion of such a right compatible with the doctrine that social recognition of any mode of action as contributory to the common good is necessary to constitute a right so to act, and that no member of a state can have a right to act otherwise than according to that position?' The question, be it observed, is not as to the right of the slave, but as to the right of the citizen to treat the slave as having rights in a state of which the law forbids his being so treated. ”

“ If, then, every well organized society has the right to consult for the common good of the whole, and if, upon the principles of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right, which is compatible with the due attainment of the end proposed. ”

“ The reason that the assertion of an illegal right must be founded on reference to acknowledged social good is that, as we have seen, no exercise of a power, however abstractedly desirable for the promotion of human good it might be, can be claimed as a right unless there is some common consciousness of utility shared by the person making the claim and those on whom it is made. ”

“ 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. ”

“ In reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force: I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice. ”

“ But, perhaps, if there was less Law, there might be more Justice, than in some other Courts; for, if the civil Law be a Law of universal Reason, judging of the Rectitude, or Obliquity of Mens Actions, every Man of common Sense is endued with a Portion of it, at least sufficient to make him distinguish Right from Wrong, or what the Civilians call, Malum in se. ”

“ 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 ”

“ It accords with the account given of this principle that the right of property, like every other form of right, should first appear within societies founded on kinship, these being naturally the societies within which the restraining conception of a common well-being is first operative. ”

“ Ib. 15 ('Atque adeo') . 'And so we conclude that natural right can hardly be conceived unless where human beings have laws in common, (human beings) who have power at once to assert possession of the lands which they are able to inhabit and to till, and to defend themselves, and to repel all violence, and to live in accordance with the common sentiment of all. ”

“ Collective right, then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. Thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of another individual--for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes. ”

“ The great principle of the common law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred. ”

“ The principle of equality, besides being as easily applied to property as to power, opposes the existence of persons or groups of persons exempt from the common law, and independent of the common will ”

“ Custom is to society what law is to the state. Each is the expression and realisation, to the measure of men’s insight 145and ability, of the principles of right and justice. The law embodies those principles as they commend themselves to the incorporate community in the exercise of its sovereign power. Custom embodies them as acknowledged and approved not by the power of the state, but by the public opinion of the society at large. ”

“ They are the two principles that have stood face to face from the beginning of time, and will ever continue to struggle. The one is the common right of humanity, and the other the divine right of kings. ”

“ The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. But how are they to regulate them? Is it to be by common agreement, by a sudden inspiration? ”

“ Conceptions of social rights and obligations and the institutions based upon them continue unquestioned for long periods as postulates in all discussions upon questions of government. Whatever conduct conforms to them is assumed to be right. Whatever is at variance with them is assumed to be wrong. ”

“ But who is to proclaim the common will, thus determined in all respects, regarding the rights of the individual citizen as well as regarding the punishment to be inflicted upon their transgression? Who is to interpret this necessary arrangement and agreement? The masses themselves would be the most improper body for it, and by counting together the expressed wills of the individuals, the true common will could scarcely be obtained in its purity. ”

“ The general principle that the citizen must never act otherwise than as a citizen, does not carry with it an obligation under all conditions to conform to the law of his state, since those laws may be inconsistent with the true end of the state as the sustainer and harmoniser of social relations. The assertion, however, by the citizen of any right which the state does not recognise must be founded on a reference to an acknowledged social good. ”

“ Social rights and obligations are reciprocal.
The right to be protected in the possession of life, liberty, and property, imposes the duty of not infringing on those of others, and even of protecting them. ”

“ The degree to which the individual judges for himself of the relation between the common good and the laws which cross the path of his ordinary life, is the measure of his intelligent, as distinguished from a merely instinctive, recognition of rights in others and in the state ”

“ There are rules anterior to all positive laws. I cannot grant that the action of conscience and the idea of right are the work of the legislator. It is not law that made the family, property, liberty, equality, the idea of good and evil. ”

“ But it may be asked, Must not the individual judge for himself whether a law is for the common good? and if he decides that it is not, is he not entitled to resist it? Otherwise, not only will laws passed in the interest of individuals or classes, and against the public good, have a claim to our absolute and permanent submission, but a government systematically carried on for the benefit of a few against the many can never be rightfully resisted. ”

“ that our civil rights have no dependance on our religious opinions, more than our opinions, in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; ”

“ But even the condition, the community of free beings, is again conditioned by a common desire. No one can, by his own mere will, realize such a community with another unless the other has the same will, and by virtue thereof subjects himself to the principle of law conditioned thereby. ”

“ I shall end this chapter and this book by remarking on a fact on which the whole social system should rest: i.e., that, instead of destroying natural inequality, the fundamental compact substitutes, for such physical inequality as nature may have set up between men, an equality that is moral and legitimate, and that men, who may be unequal in strength or intelligence, become every one equal by convention and legal right. ”

“ All we ask is, as may be seen from the first chapter of this Essay, that the right of the individual, whether real or imaginary, may be held in subjection to the undoubted right of the community to protect itself and to secure its own highest good. ”

“ Speaking of the origin of civil power and the objects of law, he lays down these principles: "The law, strictly speaking, is directed primarily and principally to the common good; and to decree anything for the common benefit belongs either to the whole body of the people, or to some one acting in their place." ”

“ If it were necessary to trench further upon the field of morals, it might be suggested that the dogma of equality applied even to individuals only within the limits of ordinary dealings in the common run of affairs. ”

“ The law of nature, the law of justice, would say—and it is so expounded by the publicists—that equal rights in the common property shall be enjoyed. Even in a monarchy the king can not prevent the subjects from enjoying equality in the disposition of the public property. Even in a despotic government this principle is recognized. ”

“ But in truth it is only as members of a society, as recognising common interests and objects, that individuals come to have these attributes and rights; and the power, which in a political society they have to obey, is derived from the development and systematisation of those institutions for the regulation of a common life without which they would have no rights at all. ”

“ In other words, it is the presumption that a man in his general course of conduct will of his own motion have respect to the common good, which entitles him to rights at the hands of the community. The question of the moral value of the motive which may induce this respect—whether an unselfish interest in common good or the wish for personal pleasure and fear of personal pain—does not come into the account at all. ”

“ These are all the rights which any man can ever possess, even in the most complex society. A right is nothing more or less than a defined natural power. It may vary in the degree of its definition. It may be enforced by all the authority of the whole community, and be called a legal right. It may be enforced only by the pressure of the opinion of the community or of a class, and be called a moral right. ”

“ But when a man is said to obey an authority from interest in a common good, some other good is meant than that which consists in escaping the punishment which the authority would inflict on disobedience. Is then the conception of common good which is alleged a conception of it on the part of those who founded or who maintain the institutions in question? But is it not certain that private interests have been the main agents in establishing, and are still in maintaining, at any rate all the more artificial rights of property? ”