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Rights of the Individual
DERIVED RATIONAL RIGHT
1. We have dealt with the nature of right in a previous volume,(1) where we also considered the principle of the derivation of rights (principium cognoscendi [principle of knowledge]),(2) a principle we founded in ownership, that is, in everything proper to a person or unified with him. Because personal resentment is a clear sign of injured rights, but is not present where the person is undisturbed, we can only conclude that right is to be found wherever person and ownership, which is always personal, are present.
2. The way to our study of derived Right has therefore been prepared. We now have to set in motion the principle governing the derivation of rights. This principle shows us how to note rights wherever they are, and to apply them to the varied states of human existence. We have to acknowledge the rights connected to each state and note the form taken in the midst of diverse facts by the unique, extremely simple essence of right which, as essence, is the same in all rights.
Our next step is to bring together the different forms of the essence of right which constitute special rights, to classify them and finally to expound them in the order best suited to showing their unity of origin and the degrees of relationship binding them together. This is precisely the task of derived Right.
3. We prefer to call this Right rational rather than natural because of the ambiguity springing from the multiple meaning of the word nature, which I have noted elsewhere.(3) Moreover, I think that rational, in contrast to natural, befits the dignity of the Right we are going to study. It will be helpful to explain why this is so.
4. Learned authors have employed two ways to arrive at the knowledge of human rights. Some begin from and follow nature; others have been prompted and guided by reason. However, although nature and reason are the two founts of Right and are both capable of constituting two distinct methods of discovering Right, nature will never lead us to all rights nor unveil their formal element.
5. When we affirm that we begin from nature and follow its traces in order to discover specific human rights, we take `nature as the intrinsic, operative, human principle, in other words, as the human subject. Setting out from nature to uncover human rights means moving from the subject, that is, starting from the propensities and inclinations natural to human beings. According to this way of thinking, which is found at the outset of philosophy and followed by Roman jurisprudence, St. Thomas himself maintains that `those things to which human beings are naturally inclined pertain to the law of nature'.(4) He goes on to divide into three classes the things to which human nature is inclined:
|First, we incline to what is good, in so far as human nature possesses something in common with all substances, that is, in so far as every substance desires (or tends) to the preservation of its being according to its nature; relative to this inclination, those things pertain to natural law which are required for the conservation of human life or which impede death. Second, human beings possess an inclination to more spiritual things, that is, we have something in common with other animals. Relative to this inclination, things which animals learn naturally pertain to natural law; for example, how male and female unite, how they bring up their offspring, and so on. Third, human beings have an inclination to what is good according to the nature of their reason, which is proper to them. For example, we have a natural inclination to know the truth about God and to live in society. Relative to this inclination, those things pertain to natural law which are concerned with such types of inclination, for example, avoiding ignorance, not offending others with whom we have to live, and matters which have this as their aim.(5)|
6. St. Thomas' argument shows that the phrase `law of nature has two
meanings. 1. It refers to the physical, real order, intrinsic to
natures. This is fact, and the effect and trace of creative wisdom. 2.
It refers to moral, ideal nature in so far as it induces moral
obligation. In its first meaning, `law of nature' is indeed common both to
animals and to non-feeling things,(6) but
does not provide a subject for either ethics or Right. Both duty
and right presuppose moral obligation, not physical inclination alone.
Consequently, calling right `natural' is not as exact as calling it rational. Because rationality constitutes the nature proper to human beings, the term `rational right' inevitably refers to the right proper to human nature.
7. Moreover, it is true that reason, by indicating what is good and
bad, also produces in us a kind of feeling and inclination directing us
to good and away from evil.
However, the natural inclination of the subject, although good, does not give rise to moral obligation. Rather, the opposite is true: natural inclination to moral good arises from the preceding obligation directly revealed to us by reason. We are inclined to moral good because we know it; knowing moral good and evil means knowing something in such a way that we are obliged to follow good and avoid evil. The inclination in the subject is never obligation but a consequence effected in us by the obligation we have already apprehended.
As soon as obligation has made itself felt in us (not before and not after), the moral law has been manifested in us. The subjects inclination cannot be the moral law(7) in any way. On the contrary, this inclination is always a physical effect produced 1. in inanimate natures by their innate forces, 2. in animals by the feelings they experience, and 3. finally in human beings by their rational apprehension of moral obligation. Even in this last case, inclination to moral good is always a physical effect because it originates according to a type of physical law as a necessary consequence of our apprehension of obligation. However, we can rightly call this physical inclination, moral because it is produced by moral obligation, which it tends to fulfil.
8. Maintaining the contrary gives rise to other absurdities. Let us imagine that the inclination to moral good, instead of being considered as a type of natural beginning to the execution of the law, that is, as a help or stimulus provided by nature for the fulfilment of the law, is erroneously taken for the moral law itself. In this case, moralists would have to show that the inclination to moral good is always stronger and more vigorous in us than any other inclination of human nature. In fact, inclination as such depends for its worth on its power. If some inclination were itself the law, its validity would be ensured by its power over other inclinations. Unless it were stronger than all other inclinations, it would cease to obligate whenever another inclination were powerful enough to overcome it.
It might be said that such an inclination to moral good would have to be followed even when it showed itself weaker than other animal or vital inclinations. But this objection falls if we consider that inclination, taken as law, produces duty only in so far as it is inclination. But as inclination, it inclines, and does so in so far as it has the power to incline. Only to this extent does it obligate. If, therefore, it has no greater power to incline than other inclinations, it does not oblige in the face of superior inclinations. Moreover, because the degree of inclination to good varies in intensity, moral obligation could be strong, weak or even non-existent relative to the same thing. Variation in inclination would depend on the original disposition provided by nature as well as on acquired habits.
But perhaps we ought to consider this inclination in all the force it
should have rather than in its weakness? If this were the case, moral
duties prior and extraneous to the inclination as well as superior and
regulatory of it, would be admitted. Inclination would no longer be law,
as our objectors sustain, but subject to law; it would not form moral
obligation, which would have to be sought elsewhere.
However we view the matter, an inclination in a subject even a rational and morally good inclination can never constitute moral law, but only some indication (principium cognoscendi) of moral law. And even as an indication of law, it is often highly imperfect.
9. Rational inclination is highly imperfect because it does not appear to possess by nature the power to rule and regulate all other inclinations nor, in very many cases, does it manifest itself in such a way that we are rendered conscious of its presence. In other words, we cannot turn to it in order to discover easily what we should do or avoid.
10. This explains why St. Thomas himself, instead of leaving inclination as the sole constitutive element of morally obliging natural law, subjects it to reason, and considers it only as approved by reason. He shows finally that law is posited not in inclination, which is consequent to knowledge, but in the obligation indicated by reason. He says: `All the inclinations of any parts whatsoever of human nature (for example, the elements by which we can desire or be roused to anger) pertain to natural law IN SO FAR AS THEY ARE REGULATED BY REASON.' (8) Reason, therefore, lays down the law; inclinations receive the law. A most noble, but naturally weak inclination then issues from the law and prompts us to observe it.
11. It is clear that we can with greater propriety and truth call the law rational rather than natural because it comes from the objects of intelligence, not from subjective nature (the complex of our inclinations). And because right receives its form from the moral law, it is as rational rather than natural right that it will be distinguished from positive right
12. The argument gains force if we consider that rational Right also
takes its matter from facts related to the will or free, human decision.
Contracts, which are certainly not formed by nature, are a case
in point. Believing, therefore, that the most fitting name for non-positive
Right is that which expresses the dictate of reason as its form, we also
believe that it is best called rational.(9)
But having established its formal name, we still have to divide Right according to its matter. While the form of things is one, their matter is multiple; and although we must always draw a definition from the form of things, we have to find division in them according to their matter. If we wish to divide rational Right into its parts, therefore, we have to take into consideration its varied matter which on the one hand is given by nature and on the other by facts willed by human beings. From this point of view, we can fittingly divide rational Right into two parts, natural and agreed. The use of natural is better reserved for this division.(10)
13. Nevertheless, we will not order our present study according to this division of Right. It would give rise to many problems. For example, in agreed Right we find two quite disproportionate divisions, one of which is too large and important to be united with the other. It is better to deal with this part separately without allowing our attention to be distracted. As I have indicated in the Schema of the Philosophy of Right, contracts are divided into those which concern only the objects of right, and those which concern the subjects. Contracts concerning subjects of right form what we call the state of society, human society, which is very different from anything preceding it, although even then agreed bonds were not totally absent.
14. As we said,(11) the aim of derived Right is to apply the principle of derivation to the various states in which human beings find themselves. With this in mind, the principle is used as a kind of type enabling us to find and recognise these states, and to note and gather together all the special rights which belong to us in each state. The greater part of our present work is to be found here, and we shall deal with it as follows.
15. Careful consideration shows that our human condition is subject to constant variation from the moment of birth to death at extreme old age. Everything around us non-intelligent things pertaining to material nature (which we use as we wish), and things pertaining to association with our intelligent fellow-beings (to whom we owe respect and love as they owe it to us) are equally subject to change.
16. Practically all the changes that affect us or take place around us in nature or society greatly influence changes in our ownership. By re-drawing the limits in which rights are contained, change extends or reduces their matter. In other words, our jural state varies.
17. It is clear that human rights or rights between human beings cannot be explained unless we mentally posit rights in all the states and conditions through which human beings can pass. First, these differing human circumstances have to be classified and reduced to certain general forms; finally, the rights corresponding to these forms have to be seen in their relationship to the forms themselves.
18. Undertaking a complete study of human rights is certainly an extensive and difficult task. Our aim, however, is more modest. Nevertheless, even a restricted project such as this essay on the Philosophy of Right has to begin from a reasoned consideration of the principal states in which we find ourselves. We have to investigate the different development, conditions and forms taken by human rights no less than by human duties.
19. There are two principal, more general states: that of dissociation, in which each person considers all his fellows as strangers with their own individual interests; and that of society, in which each makes his very own the interests common to all his associates.
20. This division, the most general of all, gives rise to the two principal parts of our study of derived Right: individual Right and social Right, as we call them.
(1) The Essence of Right, 223-317.
(2) In The Principle of the
Derivation of Rights [ER, 318 ss.]. We have already seen that the
ultimate investigations possible in any subject are three:
1. the origin or cause of the thing under discussion;
2. the essence of the thing (these two questions were fused into a single question by ancient philosophers when they dealt with the principium essendi [the principle of being]);
3. the sign which enables us to recognise where the thing is found (principium cognoscendi [principle of knowledge]). Cf. Storia comparative de' sistemi morali, c. 8, art. 1. Properly speaking, investigating the origin or cause of right is part of ontology or rational theology, not of the science of Right. However, this question has been answered whenever we have indicated that moral law and jural law ultimately lead us back to God, their first origin and essential seat.
(3) Cf.ER, 252255.
(4) Ad legem naturae pertinent ea ad quae homo naturaliter inclinatur (S.T., I-II, q. 94, art. 4).
(5) Ibid. art. 2.
(6) He explains how natural law is common to all creatures: `Because all things are subject to divine Providence which rules and measures them with an eternal law, it is clear that all share in some way in that eternal law in so far as they receive their INCLINATIONS to their acts and ends from the impression left in them by the eternal law. But amongst all other creatures, the rational creature is subject in a more excellent way to divine Providence in so far as it is made to share in Providence by acting with foresight on its own and others' behalf' (S.T., I-II, q. 91, art. 2).
(7) Cf. Storia comparativa de' sistemi morali, c. 4.
(8) S.T., I-II, q. 94, art. 2, ad 2.
(9) I do sometimes call it natural, but this is intended to show only that I am not averse to using the normal expressions of many writers. I do not want to abandon their way of communicating with me, which helps our mutual understanding. Moreover, it is impossible to correct improprieties of speech overnight and single-handed. As St. Augustine says: `Few things are expressed accurately' (he is not speaking of himself, but of ordinary language), `many inaccurately; but we know what we mean' (Confessions, bk. 11, c. 20).
(10) Cf. the Schema of the Philosophy of Right, ER, pp. 56-57