Society And its Purpose
Book 1 - Society
CHAPTER 4
How 18th century authors conceived the right of nature
71. The bonds of ownership and of dominion does not associate one human being with another; each remains separate and isolated. In such a pre-societal state human beings are thought to be in a so-called state of nature, as opposed to the state of society. Two levels can be distinguished in this state where social ties are thought not to exist. At the first level we can imagine human beings with the simple relationships which pertain to the order of pure reason; these individuals have not yet contracted effective bonds of ownership and dominion with things. At the second level, we can imagine others bound by effective bonds which unite them to things (and to persons, whom they consider as things), but are not joined and associated with their fellows as persons.
72. These two levels show no notable difference in the matter of right proper to this state. This right, prior to social right, concerns relationships and bonds with things. Human beings are either in potency to these bonds and relationships (this is the case in the first grade of the state of nature, where only jura ad res exist), or they have already actually and effectively taken possession of things (that is, have passed to the second level of the state of nature, where jura in rebus can in some way be conceived).
73. We should also consider that any society whatsoever (correctly called a moral person, as we said) has exactly those same relationships and bonds with everything outside it that the individual has in the so-called state of nature so that, relative to each other, societies in the state of nature are like non-associated individuals.
74. We must distinguish therefore a right prior to the existence of social bonds and a right arising from these bonds. The former was called right of nature precisely because the state of the human being prior to the social state was thought to be the state of nature.
75. Up to this point, it is impossible to fault the philosophers. As we said, the only possible criticism is that the phrases `state of nature’ and `right of nature’ are not altogether correct, and give rise to equivocation. They are defective because nature does not posit human beings outside society; on the contrary, we receive our life and are born within family society. They give rise to equivocation because the phrases did not define whether `nature’ had to be understood as `nature in general’ or only human nature, nor whether `nature’ is understood as the opposite of art or of reason. Roman jurisprudents themselves fell into this equivocation when they defined natural right as `that which nature teaches all animals’,(15) as if rights, precepts, and teachings could exist in the absence of reason. By `nature’ they understood `natural instinct’ which can indeed suggest to reason what must be done or omitted but cannot, without the dictate of reason,(16) constitute any right or duty.
76. Instead of leaving the meaning of `nature’ so uncertain and undetermined, thinkers should have defined it by restricting it to human nature and calling the consequent right, `right of human nature’. In this way, they could have spoken unerringly about right as a branch of the whole of moral legislation. They would have been irreproachable if, prescinding entirely from any social bonds, they had restricted this right of human nature to the essential relationships of individuals with things and persons, provided they had added to it the part of right constituting social right. In other words, they should have added the second, more noble element of the entire body of right relative to human beings considered in their various relationships and conditions. If our philosophers had done this, natural human right would have been the foundation of social right, which in turn would have completed natural right. The latter would have been the first part of all rational right, and the former, the second part.(17)
77. To avoid past mistakes, therefore, we must always remember that this natural right was abstract right, a part of right; it was not the whole of right. We could never deduce from it what must be done and what omitted in practice.
78. This imperfection of natural right and its insufficiency in guiding human beings towards complete justice can be shown simply by considering that everything it commands can finally be summarised as follows: `Do no harm to your fellow human being.’ It is totally negative because it concerns only the relationships and bonds that individual, unassociated persons have with things; it views other persons solely in their quality and relationship of things. Hence, all duties to persons arising from right are reduced to establishing a limit to the use of persons, that is, to commanding that the use of persons as things is limited in such a way that it does not violate the respect owed to their personship. Such a duty is purely negative; it is reduced to not-doing and not-harming, and imposes no obligation to help positively. We should not be surprised therefore that the good sense of antiquity pronounced judgment on such a rudimentary, imperfect and primitive right, and condemned it in practice as summum jus, summa injuria [there is no greater injury than supreme right]
79. The obligation to help our fellow human beings arises from social right, the source of positive duties. The fundamental law of society is to obtain for the whole social body and for each member of it the good for which society is established. This gives rise to social benevolence and obliges all who become members to help their associates. Once again we see how human association is an essentially moral thing.
80. Many 18th century philosophers rejected social right while retaining natural right as the only complete human right. This explains the primitive inhumanity which characterised the second half of the last century and stained it with blood.
81. Rousseau, rightly considered as the representative of the right of nature under discussion, was not satisfied with rejecting social right and dealing only with natural right; nor was he satisfied with returning to the definition of the right of nature given by Roman law: `The right which nature teaches all animals’ — for him this definition already contained too much because it considers human beings as reasoning animals who receive their right from their rational nature.(18) Rousseau, however, prescinds from all intelligence. He does not allow human beings to draw this right, proper to their species, from reason, the element constituting the specific difference between human beings and brutes. He claims that the natural right of humanity must spring from the lower element of human nature, from what we have in common with beasts! This is truly extraordinary thinking; abstraction could not be more abused! But let us hear his own words and follow his wayward thoughts. Although he wishes to give human beings a natural right as a guide along the path of life, it is everywhere obvious that this right springs from his limited consideration of a few primitive, arbitrarily chosen conditions. He ignores the real conditions in which human beings find themselves.
82. First he eliminates all social facts from his considerations:
| Let us begin by refuting all facts. They play no part in our question. Investigations such as ours must not be taken for historical truths but solely as hypothetical, conditional arguments, more suitable for clarifying the nature of things than for demonstrating their true origin; they must be accepted as arguments similar to those made daily by physicists about the formation of our globe.— Our topic concerns human beings in general. We will use a style acceptable to all nations, or rather, we will forget times and places and our present readers by supposing ourselves in the lyceum at Athens discussing our teachers’ lectures. Our judges will be the erstwhile Platos and the Xenephons; our audience, the human race.(19) |
83. But this is still not enough: although he has excluded positive human conditions, that is, all social facts, from his calculations, he would still have found, in the state of undeveloped human nature alone, all those human faculties which are the principles of its successive development; and first of all he would have found reason and the instinct for association. But he wants nothing to do with these elements; he disdains human nature and imagines a state prior to reason itself and to sociality where he thinks he can locate the true natural right of the human species:
| When I consider the first, simplest operations of the soul, I believe I find two principles PRIOR TO REASON, one of which makes us very solicitous about our well-being, while the other inspires us with a natural repugnance at the sight of the suffering and death of every feeling being, particularly our fellow human beings. It seems to me that the laws of natural right spring from the way in which our spirit is able to mingle and combine these two principles, without needing to bring in sociability. Reason, when it has almost suffocated nature through its successive developments, is then forced to establish these laws on other foundations.(20) |
84. According to this philosopher, therefore, reason, far from forming part of human nature, is a foreign, hostile power which appears later like a parasitic plant, as it were, withering and suffocating human nature! This is a right not of nature but of brute nature — which has no right!
85. There is no end to this path. If we follow it, we cannot be satisfied with the human state prior to the use of reason. There is nothing to prevent our seeking the principles of right at an even earlier stage. If we want to posit the idea of human nature before humans begin to develop, we could look within the maternal womb, find that the heart develops before the other organs, and then deny that these organs form part of human nature. We could go even further back, perhaps to the original formation of the cellular network or beyond. This, it would seem, is the work Rousseau seriously intends to leave to others:
| Anyone can easily investigate the same path without finding it easy to reach the end. It is no light matter to separate what is original from what is artificial in the actual state of human beings, or to know clearly a state no longer in existence, which perhaps never existed and probably never will.(21) |
86. According to this teaching, the natural rights and duties of human beings would indeed be locked in a very closed circle! Our duties would consist almost solely in caring for our bodies, if we had any duties! On the other hand, because Rousseau is forced to confess perfectibility as a distinctive faculty of the human species, how will he handle this new element which is so inconvenient for the natural right he has imagined? He extricates himself by denouncing this element as an intrusion (he lacks the courage to destroy it); in an extraordinary contradiction he describes, and judicially condemns `perfectibility’ as the author and source of every degradation of the human race to which it belongs. The multiple consequences of this absurd assertion are only too clear to him. Smoothly and eloquently he admits them, and pours out his sympathy on the human race so that the reader, if not convinced by the light of truth, is seduced by the height of feeling, and swallows them whole.
| It is indeed sad to be forced to agree that this distinctive and almost unlimited faculty (of human perfectibility) is the source of all human troubles, and that in the course of time it draws human beings away from their original condition of peace and innocence. As the centuries go by, its enlightenment and errors, its vices and virtues increase; in the long run it becomes the tyrant of both itself and nature. It is indeed frightful to have to honour as beneficient that which had first taught the Orinoco River dwellers to attach pieces of wood to the temples of their children as a guarantee of part of their imbecility and their original happiness!(22) |
87. Finally, this philosopher whose unfortunate observations we have recalled was in fact aware that the exclusion of reason would eliminate every duty or right because nothing reasonable remains. He made this point himself in the form of an objection:
| At first sight, it would seem that human beings in this state would have no kind of moral relationship between themselves nor any known duties; they could not be good or bad, nor possess vices or virtues — unless, of course, we take these words in a physical sense and call `vices’ the qualities which can harm an individual’s own preservation, and `virtues’ those which can aid it. In this case, the most virtuous individual would be the one who least resisted the simple impulses of nature.(23) |
88. This is his sole solution to the difficulty, which at one blow shatters the whole of natural right that he attempted to establish at such length:
| If we do not wish to depart from the ordinary sense of words, we must suspend our judgment on such a position, and be wary of our prejudices before going on to see whether virtue is greater than vice among civilised people, or whether their virtues do more good than their vices do harm.(24) |
89. That is all I want. These words allow me to agree fully that in Rousseau’s state of nature there are neither vices nor moral virtues. I also agree that even if such a state devoid of morality were preferable to a social state in which vices exceed virtues, it could never give us any idea of law or of right, precisely because it never gives us any idea of virtue, vice or even reason. Finally, I agree with the necessary consequences of all this, namely, it is vain and insane to have recourse to this state in order to discover the norms of natural right; we would be positing a condition of things where even the smallest vestige of natural right is lacking. Any miserable pretext would serve for denying the existence of natural right or for changing moral laws into physical laws or vice versa. These considerations show how strange it is to imagine we can draw natural right solely from human physical elements; it is simply an effective way of annihilating natural right, not establishing it.
90. Finally, nothing J. J. Rousseau has published about natural right is to be taken as serious philosophical work; it is simply an elegy on the social corruption in which the unfortunate man had to live. And his eloquent declamation was understood neither by his followers nor his opponents. Instead of seeing him as an angry man venting his feelings, an orator given to exaggeration, a sophist showing off his intelligence or a poet weeping, people thought they saw a philosopher reasoning. This was as damaging to the times whose corruption he was lamenting as it was to his reputation.
Notes
(15) This definition of natural right has clearly been taken from stoic philosophy. Cujas believes he explains it when he says: `That which brutes do by natural incitement, human beings do by natural right' (Not. prov. ad I Inst. Tit. II). But in my opinion it would be better and more upright to acknowledge such a definition as defective and abandon it.
(16) Instinct can partly supply the matter of right, but not the form. Before Ulpian, Zeno and Thales, Hesiod said more soundly:
Great Jupiter with law
The human race endows.
Wild beasts and fish and birds are found.
Devoid of right they stalk,
While we with justice, highest good,
Rejoice in mutual care. …(Op. et D., bk. 1, v. 276).
(17) Understood in this sense,
natural right has two parts:
1.human relationships and bonds with all that can be used as means, whether
thing (bond of ownership) or person (bond of dominion);
2.relationships and bonds arising from bilateral contracts, in which human
beings do not associate with other human beings but treat them as equals, that
is, according to the relationship of end to end.
(18) Legists have added, `according to their kind' to the definition, `Natural right is that which nature has taught all animals.' This explains and clarifies the definition.
(19) Discours sur l'origine et les fondements de l'inégalité parmi les hommes.
(20) Ibid.
(21) Ibid.
(22) Ibid.
(23) Ibid.
(24) Ibid.