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The Essence Of Right

CHAPTER 2

Analysis of the definition of right

238. This definition contains the general notion, which is found in all rights. But before reducing the definitions of special rights to the general definition, we have to analyse the latter and consider separately each of the elements which compose it. The notion of right, which we have expressed in our definition, consists of five elements:

1st. The existence of subjective activity;
2nd. The existence of personal activity, that is, activity exercised by the subject by means of rational will (freedom);
3rd. Exercise of this activity (an exercise which is good, not useless, for its author);
4th. Lawful exercise of the same activity (`lawful means not opposed to the moral law);
5th. Finally some relationship with other rational beings on whom rests the duty of respecting our activity (the activity is exercised under the protection of the moral law).

Let us consider these elements separately.

239. The word activity has to be taken here in a very broad sense as, for instance, when we say that everything entering the feeling of a subject supposes some activity and actuality on the part of the subject which must at least leave itself open to the experience and co-operate with the modification it receives. Although the concept of feeling involves that of passivity, there is no doubt that the existence of passivity in the subject could not be conceived without some corresponding activity in the subject itself.(151) We have to say this to avoid giving the impression that we exclude pleasurable, passive feelings experienced by the subject from the matter of right.

Note also that pleasurable feelings are usually the effect of the subjects actions, and that the very activity of the subject intervenes to preserve and defend them. Finally, we observe that the subjects de facto dominion of its actions is that which determines it to omit actions which could impede, remove or disturb pleasurable feelings. Consequently, the intellective subjects apparent inactivity contains some act of will. Right, therefore, always has as its basis some faculty or activity of the human being.(152)

240. As we have said, the person is the supreme, active principle of an intelligent subject. Personal activity, therefore, supposes intelligence; it is the will in the subject which determines the subject as a result of the knowledge received from things. Of itself, a blind instinct cannot therefore constitute any right.

241. Physical action as found in material beings and in the blind, sensuous instinct of brute animals is not sufficient to establish the existence of a right. Intelligence must be present, together with will, the consequence of intelligence in the human being. Only will has the power to determine actions in accordance with intelligence and thus to give human beings the supreme prerogative of being and of calling themselves the authors and, therefore, masters of what they do.

242. The belief of previous ages that beasts were capable of rights was undoubtedly an error, which perhaps has not yet been totally abandoned. They are incapable of right because they are incapable of possessing de facto dominion of what they do, a capacity presupposed by the notion of de jure right. Roman laws, having established natural right common to beasts, opened the floodgates to errors which have unfortunately persisted for many centuries. The authors of these laws grasped the first element of right, that is, subjective action, but they had no clear, constant vision of the second element, that is, of personal action. They saw the isolated action which is only the material part of right; they were almost completely oblivious to the formal part [App., no. 1]. When Roman jurisprudence flourished once more, some theorists attributed rights to beasts, and seriously undertook the examination of the legal procedures to be used if animals had to be punished! These theorists lacked a clear idea of what constituted right precisely because Roman laws did not provide it.

243. The efforts made by some sophists to degrade human beings to the level of brute animals do not merit attention here. The thinkers were quite open about deducing the only legitimate conclusions of the sensist system and, as publicists, applied their humiliating theories to society and to the noble teaching of equality and social freedom which they degraded and debased to the core.

244. The systems of philosophers of antiquity on the transmigration of souls, or on the soul of the world and a divinity infused through all the branches of nature, did contain lengthy questions on the respect due to beasts. These theories, however, raise no objections to the teaching we have expounded because the problem of rights in beasts only arose after discussion about the existence of reason in beasts.(153) The desire to diminish ferocity and cruelty in savage human beings was perhaps another reason why ancient sages invented systems in which beasts appeared as worthy of respect. Many laws were established by ancient legislators in favour of beasts in the hope that when people had ceased to ill-treat them, they would also be restrained from slaughtering one another. At the time of Hesiod, for example, it was seen and taught without equivocation that justice and law, right and duty, were proper to human beings alone.(154)

245. Finally, I have to note that the personal, free activity of which we are speaking and which is necessary as a constitutive element of right, does not always have to be in second act, as they say in the schools. It is sufficient for the action to belong of its nature to human dominion. Even if accidentally withdrawn from the free power of a human being, this activity still forms part of his ownership because it is such by natural law. The individual could take up once more the exercise of his power over the activity as soon as the accidental circumstances impeding or suspending it had changed.

We have to understand that `if any cause whatsoever renders spontaneous an action which could be free in a human being, we cannot conclude that some other individual can dispose of this action without violating the right of the person concerned. In this case, the action posited still belongs by nature to the person doing it, who can always reasonably claim ownership to it. The fact is that the personal nature of an action does not depend properly speaking upon its indifferent freedom, but on the personship of the principle from which it emanates. However, we shall develop the notion of ownership later (as we have seen, it forms part, as a consequence of personship, of the concept of right). For the moment, we shall draw an important corollary from the two constitutive elements of right which we have so far explained.

246. Knowing that right is a faculty, an activity, a governance (we can use the words indifferently), we are able to affirm clearly the corollary that the exercise of right includes force. The force with which right is exercised and put into act is the origin of coercion, acknowledged by all as something intimately connected with right itself.

The necessity of an intimate connection between right and force is seen even more clearly if we consider that we are dealing with personal activity, the highest of all activities even from a physical point of view because it rules de facto over all other activities which it employs as instruments and means for itself. This allows us to conclude that the coercion connected with right generally speaking is as great as the whole complex of governance within a person. We can, therefore, exercise our right with all the forces at our disposition, using them to repel all opposition and even to compensate for the good lost by injury inflicted upon us.

247. Nevertheless, the measure of coercion, which is very extensive when considered without relationship to its circumstances, is limited by the moral duties resulting from accidental circumstances, about which we shall speak in the appropriate place. For the moment, we have to deal with an important question: `Does coercion have to form part of the definition of right?

248. Some authors effectively put coercion in the definition. Their stance could be strengthened by the following argument: `Right is a personal activity; but in the concept of activity we already find the concept of force and coercion; therefore the notion of right already contains in itself the use of force, that is, coercion. This reasoning contains a basis of truth, but it is not sufficiently strong. Its concepts, weakened by lack of clarity, are rather confused. Some distinctions have to be made if the argument is to rendered as clear as it should be.

249. There is no doubt that every activity and faculty contains force, but not universally in second act, as we said. It is always present, but only in first act, that is, in potency. But if right sometimes consists in a mere faculty or potential activity it can indeed be said that the concept expressed in its definition includes force in potency, but not necessarily force in act. We have to distinguish, therefore, between primitive right, which consists in a potential faculty, and the exercise of this primitive right which can appropriately be called secondary right and consists in an actuated faculty.

250. Right consisting in a mere faculty is injured every time the faculty itself is injured; right consisting in the act of the faculty is injured whenever the act is impeded. Both the right consisting in the faculty and that consisting in the act of the faculty can be defended with force in so far as either can be injured. But in every case the use of force requires some act. Consequently, the right to use force cannot consist in a faculty in a state of mere potency, but must be a right proper to an actuated faculty. Note, however, that the right to use force is not, properly speaking, a special class of rights consisting in an actuated faculty; it is an accident, as it were, manifested in the exercise of ones own right.

251. The question can, therefore, be answered as follows: `Force is only coercive in a right if it is found in the de facto activity of the subject of right; but it does not adhere essentially to any right of the subject. We can conclude that force sufficient to defend a right is not necessary to constitute that right, as some authors have unreasonably upheld. The consequence of such savage teaching is that authors sacrifice the rights of the weak,(155) which are no less sacred than the rights of the strong. It is the rights of the weak which deserve to be defended at least by the protestations and writings of wise people as they impress more deeply on all human hearts the conviction already implanted by nature: that is, rights remain inviolate although no defence is present to safeguard and protect them.

252. An action without value or pleasing consequence for the person performing it could not be the object of a true right. Right must always be referred to some good, to something pleasing to human nature. This is so necessary that we can establish the principle: `Mere caprice can never be the object of any right. Things were, in fact, taken to such an extreme that ridiculous abstractions were used to establish stupid rights, useless to those who were supposed to possess them and harmful to others. It is time for such abstractions to give way to more complex thought. Crude yet strangely sophisticated right, by which publicists and even moralists often give their seal of approval to serious damage, has to stop.

When I speak of some good or of something pleasing, I consider this good from the eudaimonological point of view. In other words, I consider it in the natural relationship it can have with human satisfaction or even with happiness. Nevertheless, the good of which we are speaking could also be moral good which has amongst its results and consequences a natural order related to our satisfaction and happiness. In this way, moral good, too, can be considered as eudaimonological good.

253. We need to add, however, that this good which intervenes to constitute a right must be inherent to the subject in such a way that the mere privation of the right would cause harm to the subject. If the case concerned some good not adhering to the subject, but entirely separate from him and obtainable only through the subjects action, this good would not be sufficient to constitute a right. The subject could, in fact, remain deprived of the good without suffering any pain concomitant on the privation. The good connected with the action, or comprised in the action, is that which gives worth to the action and as such is the end, the object of the right.

254. Allow me to note here that this element of right, in attracting the attention of some of the ancients, appears to have suggested to them the title `right of nature. They used this expression to indicate `right founded in the natural instincts for conservation, procreation, etc.; right having as its object the needs and good things desired by nature, quod natura omnia animalia docuit (because it seems that need and instinct teach the animal to seek satisfaction from them). Others realised that this concept lacked the formal part of right found in reason alone. As a result they substituted human nature for nature in general. Human nature has animal instincts as the beasts have, but it also possesses superior instincts, needs and rational good, all of which rule over merely animal instinct. Cicero expresses this admirably:

The nature of right is to be sought in the NATURE OF HUMAN BEINGS.(156)

Having arrived at this point, the human mind knew that good as the object of right had to be human good, not merely animal good. In other words, it had to be referred to a rational being, or person. The mind was now prepared to uncover another truth and find another meaning in the word nature, which it had assumed as a pointer to right. Instead of considering nature in the subject, the mind could consider it as object. This step was easy, as I said, because in human nature subject and object are not confused but joined. Nature as object indicates to the mind moral exigencies very different from the requirements of instincts. Consequently, `live according to nature, the ancient precept which passed from the Socratic school to the almost exclusive use of the Stoics, received two quite different interpretations. If the word `nature is taken as subject, it means `live according to the instincts and stimuli of our nature; taken as object, it means `live according to the exigencies and indications of the natures of things. These two meanings were often mixed and confused by the greatest sages of antiquity, although the second meaning, the superior meaning, was not entirely lacking. Cicero, for instance, argues that we should love other human beings as ourselves because our nature is equal. Here nature has an objective sense, and philosophy already begins to reach out to the true moral principle of the practical acknowledgement of nature or beings.(157)

255. Returning to the point we were making, we may conclude: the third element of right is that `the activity owned by the subject should have some eudaimonological value.

256. In the fourth place, right can only be a faculty to do what is intrinsically upright and lawful. We have already explained why this is so: it is clear that there is no right to do things which are morally evil. It follows that if an action were per se upright but degraded through a wrong intention on the part of the one who does it, or through his ordering it towards some perverse end, or for any other reason, the person concerned goes beyond the limits of his right.

257. Nevertheless, if one person attempts to despoil another of his faculty for carrying out per se upright actions (to which he has a true right), he would do him an injury. This would not be the case if an attempt were made to impede the abuse of the right, provided that the person wishing to stop the abuse had a right to do so(158) in other words, provided there were no obligatory law forbidding him to make the attempt.

258. However, lawfulness in an action, which is necessary if the action is to be subject to right, is defined in different ways by various authors. The diversity depends upon the aim they had in view when establishing the constitutive elements of right, and therefore according to the legislation to which they refer this lawfulness. In Germany, natural right is considered solely as a basis for the external, positive legislation of the State. In this case, lawfulness, which is required in order that a right may be possible, is the result of the external laws of the State, or at most, the result of immunity from natural coercion. In other words, my right to carry out these actions is established on the basis that other people are unable to impede my actions with the use of force. Counsellor Zeiller explained the matter as follows in his natural-private Right:

Right is not a moral faculty in the strictest sense so that we have a right only to what is morally good and compatible with virtue, nor is right to be numbered amongst internally lawful things. I say this because it cannot be denied that we require many things of others. Although our demands obviously derive from a spirit alien to virtue, and tend to ends totally lacking in humanity, they are generally recognised as just and are susceptible to the force of right, even when applied by State tribunals.(159) There are in fact many actions which cannot be forbidden by State legislation. In the face of such laws, these actions can and must be considered as lawful or rather presumed to be such, and therefore taken as apt to serve as subject to rights.

259. The same may be said about all limited legislation. If an action is considered in special relationship with such legislation, it will not be seen as forbidden. It will, therefore, possess the character of relative lawfulness, even though in regard to universal legislation it may be considered unlawful. By `universal legislation I mean the complex of all laws obligating human beings.

260. This restricted manner of considering the lawfulness necessary to render an action subject to right cannot be faulted. Sometimes indeed it is necessary, when for example we have to speak of rights relative to special legislation. However, it is also the duty of writers on natural right to point out that these are not rights in the full, absolute sense of the word. It would also be highly desirable to avoid all equivocation by calling, for example, `civil rights those which have as their subject actions permitted and safeguarded by civil laws. The use of the adjective in this and similar cases would be very helpful.

261. It could also happen that an action seems subject to my right not because it is per se lawful, but because it cannot be impeded by the persons with whom I live. No one, in fact, can impede my action if I do not enter within the sphere of their rights, and I can indeed perform blameworthy actions which do not offend the rights of others. For example, if I refuse to do good to another, I am not thereby violating the sphere of rights of third persons to whom I do no harm. Consequently, it is often said that I have the right to act in this way.

But language of this kind is inexact. It is not true that I have the right to be inhuman to other people, although it is true that I have the right not to be disturbed or damaged in what I am doing if I refuse to do to others the good to which I am held by a higher moral law. In a word, `others do not have the right to attack me, and in fact are obliged not to do so. Nevertheless, by acting against humanity and charity, I am not exercising a right in a true, absolute sense because I am doing something which is forbidden me by the law of the Creator.

262. Finally, right implies a relationship with other intelligent beings according to which they remain morally obliged not to disturb the exercise of that faculty or moral activity. In this way the faculty, activity or action acquires the characteristic of governance, as we have called it. The person possessing this characteristic can justly maintain that he has been injured or offended by those who disturb or ruin it.

263. The limits within which the use of this governance is restricted, and outside which it cannot exist, depend upon the five constitutive elements of right. Later on, we shall describe these limits in detail because they alone render possible the co-existence of rights in persons sharing a common way of life. These limits are not the result of this common way of life, as we shall see, but depend upon the lack of one or other of the five elements which we have indicated as constitutive of right.

264. We must note carefully that the duty of respecting moral freedom in others does not depend upon this facultys being a right, but on its being a right because others have the duty to respect it. It is also true that there could be in others a duty to respect some part of the activity in a given individual without its becoming an absolute right for him. This would be the case if a part of the activity lacked one of the preceding conditions, especially that of morality. For a persons activity to be given the status of right, it is not sufficient that the activity be morally free or, if not morally free, that it be the object of the moral duty of respect from others. Neither of these two things is enough of itself to permit this; both are necessary together. The activity of which we are speaking must be morally free on the part of the person who lays claim to the right and morally inviolable on the part of other persons who have to deal with him if he is to have this right.

265. On the other hand, we should not believe that the moral duty of respecting a portion of personal activity ceases in others if this portion is not morally free. If the moral duty of respecting the activity of others arose from a preceding right in the activity, it could be correctly inferred that the moral duty of respect ceased with the right, the object of respect. This is what many legal theorists and many publicists believe. But according to me this is one of those pernicious, profound and long-standing errors which impede the great progress to which modern legislations are called and stimulated by our present need to develop civilisation.

266. The moral freedom of some given activity in a person and the moral duty of others to respect that activity arise from different sources. The first can certainly exist without the second, and the second without the first. Infinite, unjust claims result on both sides if these two things have to proceed together, with each strictly relative to and conditioned by the other. The ensuing dispute can never be disentangled, and ends in war.

267. Let me offer examples of three classes of unjust claims which unfortunately arise every day from the error which we have described.

1st. Persons who know they have a given, morally free activity claim that this should be upheld for them by everyone else. They do not acknowledge that others sometimes have the right to impose limits to their freedom. Their excess consists in claiming immoderate freedom.
2nd. Persons who see that others have a moral duty to respect some given activity of theirs claim that this is sufficient for them to have a right, even if their activity is not morally free. This false claim emboldens people in doing evil. They decide they have the right to do it as soon as they see in others the duty not to constrain them to abandon it.

These two classes of disastrous claims are seen in those who suppose they possess some right. The third class of claims is aroused in others who have some contact with them.

3rd. Persons who see that some given activity possessed by another is not morally free and hence cannot be subject to right in the one who does it claim they are dispensed from the moral duty of respecting that activity. This claim overthrows society by creating a false equality authorising the poor to despoil the avaricious rich who give no alms. But the poor person is not morally free to do this, and therefore has no true right to it.(160)

268. We call jural duty that moral duty which obliges human beings to respect the freedom of others when this freedom has all the characteristics necessary to constitute a right. Jural duty is, therefore, the obligation that one human being has relative to the right of others. In other words, it is the duty which requires one human being to respect, without interference or damage, the jural governance of another. And this jural duty is the same as the fifth constitutive element of right.

269. Various authors posit other requirements for rights, such as the joint presence of duty and right in the same person, and the state of society, but we cannot agree with them. We will discuss their opinion later. For the moment we want to concentrate our attention on drawing together all the elements required for constituting a right and for providing a more explicit definition of it. We say, therefore: `Right is a personal faculty or governance, which must not be harmed, for enjoying through action or experience a lawful good. This definition can also be called the principle of the science of right.

Authors on Right seem to pay least attention to the mutual occurrence of the twofold moral character of right, that is, to the lawfulness of the action on the part of the subject, and to the moral duty, on the part of other persons in relationship with the subject, of respecting that action. They also neglect the independence of these two characteristics. The most modern trend of thought about the concept of right is summarised in the formulas offered by Kant and Romagnosi. We must examine them briefly.

270. Kant defines right as `the faculty of carrying out all those actions whose execution, although universal, does not impede the co-existence of other persons. We have already examined the serious deficiencies of this formula when applied to morality.(161) Here we add only a few comments:

1. If right is made to consist in the possibility of co-existence between persons, the moral element of lawfulness in the action is not sufficiently emphasised. There could be some other action, unlawful according to a law of nature, which nevertheless does not exclude the co-existence of others who also commit it. But no one would have the right to such an action. The right to do evil does not exist.
2. Even if all possible unlawful actions excluded effective co-existence, they would not be unlawful simply because they produced this effect. In this case, excluding co-existence would not be constitutive of either their lawfulness or their right, but would be at most a sign by which to recognise them, a principle of knowledge, not a principle of being.
3. Universality itself is not a moral element, but at most an indication of the moral element. Moreover, it is a highly equivocal indication, in great need of interpretation. We could be speaking either of absolute universality or of universality relative to the circumstances of the person doing the action. In the first case, any lawful action, if done by all human beings, would exclude co-existence. If everyone decided to be a shoemaker, who would farm the land? In the second case, no evil action would exclude co-existence, though everyone could do it in the same circumstances, because the same circumstances would never be repeated, or very rarely.
4. Finally, it cannot be said that an action, if certainly lawful without excluding co-existence, must by this very fact be left free by other people (this is a required condition if the action is to be called a right). In fact, a father, by means of his paternal right, can impede even the most lawful of his childs actions though these actions, considered as a whole, do not exclude co-existence. These actions of the child, relative to the father, cannot therefore merit the title of true right.(162)

271. Romagnosi offers this definition: right is `the power of a human being to act without impediment in accordance with the law of nature, and to obtain from others that which is due to him by force of the law itself. (163)

There are several reasons for not admitting this definition of right.

1. It is not the definition of right in general. It seems insufficient to say, `the faculty for acting in accordance with the law of nature. If this way of speaking has to be followed, it would be better to say, `in accordance with the law, without restriction. In this case, the affirmation could be applied to any law whatsoever, natural or positive, without fear of defining abstract right which is not true, effective right. I realise that Romagnosi will say that he intended to define natural right. I would reply that if an action were to be prohibited by a positive, obligating law, that action would automatically cease to be a true right of nature. From the moment of its prohibition, it would cease to be a right of any sort.

We have to abandon these abstractions in which the science of right has gone so far astray. They generate a maze of inextricable problems harmful to mankind. Who would not say `No to the question, `Can a persons right be impeded by the positive law? Nevertheless, positive law makes unlawful certain naturally free actions. What we have to say is that positive law does not put any impediment to the exercise of natural rights, but does make some of these rights cease altogether by eliminating one of the conditions required for the actions to be rights. This condition is the total moral lawfulness of these actions.

2. Saying, `the power for acting according to the law of nature, supposes that the law of nature regulates all actions. But there are actions which in themselves are indifferent, that is, neither commanded nor forbidden by the law of nature. However, simple permission, although sometimes called an act of positive law, does not seem to be an act of the law of nature. This law refers to what is lawful, not to what is permitted. And the only condition for lawfulness here is inaction on the part of the natural law. Whoever does what is merely lawful, acts relatively to that about which the natural law is silent and provides no norm.

3. In the affirmation, `the power to act without impediment according to natural law, the nature of the impediment remains unknown. If the obstacle is physical and independent of other human beings, the right is not removed. If the obstacle has been placed by others, we still have to distinguish, because that obstacle could have been placed justly or unjustly as a bar to our per se lawful action. If the obstacle to our per se lawful action is altogether unjust, our right is injured but still subsists, although we no longer have unfettered power to act. If, however, the obstacle placed by others is just, we would not have the right even if they did not posit the obstacle. Our action loses its characteristic of right even if it is only possible for others to posit the obstacle justly. In the same way, when we say `the power to act, it is not clear if the power in question is moral or physical. If the meaning is, `a physical power for acting in accordance with the natural law without any physical impediment, no right would be constituted. The definition, therefore, is highly ambiguous.

4. Introducing into the definition the words `that which is due to him seems the same as introducing what has been defined into the definition. The only explanation of `what is due to him is `that to which he has a right.

5. Again, in saying `the power to obtain, etc., we do not know if the reference is to physical or moral power. In the first case, no right would be present. But even if the physical power were impeded, the right could be present, although the person concerned would not be able to obtain that which is his due. Obtaining or not obtaining what is due is a factual circumstance which does not alter the nature of the right. We can have a right to try to obtain forcefully what is ours without necessarily obtaining it.

6. In saying `the power to act and then `the power to obtain, right is needlessly split into two powers. First, `the power to act is so general an expression that it includes even the power to obtain, and every other power. This addition, therefore, is useless repetition. Again, `the faculty to obtain, that is, to employ coercion in order to have what is our own, must be dealt with as a particular function of right. Otherwise, it would be impossible to assign a limit to this function. If having a right to something implied the power to obtain it without condition, I could use any means I liked to obtain it because the person who possesses a right has a right to the means. But as we shall see, a great number of means cannot be used even for the just end of obtaining what is our own. If we lack upright, lawful means, we have to renounce the exercise of our right. As far as exercising it is concerned, our right would cease.

Romagnosis definition is, therefore, imprecisely expressed, and contains many substantial errors.

272. Finally, it is, I believe, altogether necessary to abandon the system of those authors who in their treatises on right maintain that we can prescind from the divinity. If this primary relationship is rejected, morally unlawful actions are easily elevated to the status of rights because they do not enter, as we said, into other peoples sphere of rights. Scientifically considered, such abstractions are totally frivolous. Considered in their logical consequences, they are sources of error; considered in their real effects, they are very harmful to the human race.

273. No activity therefore can have the quality of right, and consequently be a true right, unless it is lawful in the sight of the whole moral law. A prohibited action can indeed be called a relative right, and will be such if we consider it (here we sum up):

1. either in relationship with some special legislation in this case, it is a right relative only to this legislation;(164)

2. or in relationship to the judgment of people who in certain cases cannot judge of its immorality and hence are bound to presume its uprightness presumed right;

3. or in relationship to the obligation that others have of not impeding it, although it is unlawful unrefined right.(165)
A right does not cease to be absolute in the possession of the person who has a just title to it, even when he abuses that right. Abuse on its own remains outside the sphere of right, and it is only the abuse of right which can be impeded.

Notes

(151) Cf. AMS, 367-369.

(152) The reader should note that here we are setting out a kind of technical language which we intend to maintain faithfully throughout the whole of this work - provided we are not the victim of some involuntary distraction. The subject of right, therefore, will always be the person who possesses the right; basis of right will always refer to the faculty which forms the first element of right. Authors occasionally call this faculty the `immediate object' of right, but we think it better to apply the word `object' to the good we wish to obtain or use with the faculty.

(153) The discussion amongst philosophers of antiquity about what was due to beasts became another pretext used by Carneades for denying clear knowledge of justice to human beings. Cf. the Republica Ciceroniana discovered by his Eminence Cardinal Mai, bk. 3, §2. Further details may be found in Pufendorf, De Jure Nat. et Gent., 4: 3.

(154) `Law was given to humankind by Jove, the supreme; beasts, fishes, and birds that fly above eat one another because they lack that best of things, law, which extends no further than us' (Oper. et Dier., vv. 276 ss.).

(155) Some modern authors use this principle to despoil the Church of her rights. They say: `The Church has no arms or defence forces, and therefore has no rights. These all belong to the State.'

(156) De Leg. 1: 5. - Grotius also used this accurate expression. For instance, he says: `And whatever is obviously opposed to such a judgment is also against the right of NATURE, that is, HUMAN NATURE (De jure B et P. Prol. 9, 40, 41. Cf. also bk 1, c. 1, §11).

(157) `If this is the case with NATURE, so too in their JUDGMENT' (this is the judgment, the acknowledgement) `right would be cultivated by all. As the poet says: humans think that nothing human is alien to themselves. - This shows that an almost incredible act is done in the eyes of some people when one wise man bestows such extensive benevolence upon another endowed with equal virtue. Nevertheless, this act is necessary if he is TO LOVE ANOTHER NO LESS THAN HIMSELF. How does he differ, all things being equal?' The whole of this beautiful passage may be found in De Legib., 1:12.

(158) St. Thomas puts the matter very well: `Human nature is changeable; consequently, what is natural to human beings is sometimes less than it should be. For instance, natural equity requires that what has been deposited should be repaid to the person who deposits it. If nature were always what it should be, this would always have to be done. Sometimes, however, the human will is turned to evil, and in this case it occasionally happens that the deposit need not be returned, ne homo perversam voluntatem habens MALE EO UTATUR ut puta si furiosus vel hostis reipublicae arma deposita reposcat [in order to prevent a person with bad will FROM USING IT BADLY. For example, an aggressive person or an enemy of the State might ask for the return of the weapons he has handed in]' (S.T., II-II, q. 57, art 2, ad 1). Here St. Thomas places a limit to the right of that which is proper to a person.

(159) §11.

(160) The avaricious rich person has no right to abuse his riches. Nevertheless he has a right to his wealth and a right not to be deprived of it.

(161) Cf. Storia Comparativa e Critica de' sistemi morali, c. 5, art. 11.

(162) Kant's formula was reproduced in Italy (cf. Dr. Pietro Bartoli, Diritto naturale, p. 1, sect. 1, c. 1). I should add that many authors on right do not distinguish carefully the state of simple co-existence between human beings and the state of society. The notion of right must be independent of the state of society; right exists between two individuals of the human species who may not have formed any society between themselves. Almost all modern authors on natural right, as well as some Italian writers, err by making society part of the general definition of right. We, however, exclude from the notion of right in general not only the concept of society, but also that of any real co-existence. Possible co-existence alone is sufficient. In other words, we maintain that the idea of right would exist even if there were only one individual of the human species, provided this individual were considered in hypothetical relationship with other possible beings like him.

(163) Assunto primo, §3.

(164) For example, State tribunals, which have to judge according to established laws, would violate this kind of relative right if they condemned a guilty person who according to the laws ought to have been acquitted, even though he were truly guilty of the accusation.

(165) For example, I would violate the right of a fellow human being if I impeded the practice of his false religion, which he thinks is true, without first convincing him of the falsity and unlawfulness of that religion. He has the right (when he does no harm to others) to act in accordance with his persuasions. Persuasion cannot be forced, but changed only by way of peaceful argument. Nevertheless, his right is only relative to the duty that I have to respect his actions, although they are unlawful. This is what I call unrefined right.

Chapter 3