Society And its Purpose
Book 2 - The End of Society
CHAPTER 12
Possible collisions among human rights
221. The question now arises `Can the equally supreme right of two persons to their own final contentment collide? If so, who must give place?’ If such an extraordinary collision happened, neither one nor the other ought to or could give way; the encounter would mean an intrinsically evil surrender repugnant to nature. However, a collision of this kind, which would contradict the wisdom and holiness of the Creator, is by the very nature of things impossible. It is not a question, we must note, of a collision between the rights of many people to the means of happiness, but between the rights to happiness itself. The happiness we are discussing, posited in a human being, does not, and never can obstruct the happiness of others. Possession of happiness, although common to all, is not diminished for anyone.
222. Among these means, we must distinguish those that are absolutely necessary to human happiness from those simply useful and helpful. The former include none that, possessed by one human being, cannot be possessed by all others. The task of human contentment and happiness is accomplished in the secret of the spirit, where human moral value and the bliss of virtuous contentment are located. On the other hand, all external, limited things, which can be possessed exclusively, may in some way help the production of interior contentmnet and, by removing obstacles, the production of interior virtue. However, they are never absolutely necessary. Consequently, at least in the case of Christianity, virtue is exercised and contentment enjoyed as much in a fetid dungeon as on the most exalted throne, thanks to the wonderful power of free action by which the Christian, devoid of all subjection, adheres to immutable things and finds beatitude in them.
Nevertheless we also said that there are means which, although not of absolute necessity to the perfection and virtuous contentment of the human spirit, dispose us for the acquisition of this good by removing the obstacles that lie in our way. Hence we must ask the following important question in philosophical Right: `To what extent do the individuals who compose civil society retain the right to the means which contribute to their moral perfection and happiness, and how limited is government in using those means?’
223. The question has two parts. The first asks, `What is the limit of the individual’s right to the means which can contribute to his happiness?’; the second, `What is the limit of government authority in making use of the very means that contribute to the happiness of the members?’
I answer the first part by saying that `the principal limit to the individual’s right to means which contribute, or are thought by him to contribute to his happiness, is the right of ownership. In striving for happiness, each must limit himself to the use of his own things and of his free actions’. The limit could be more generally presented by saying that `the limit of our right to use the means for our happiness is determined by the equal right of all others’, because our own right must not obstruct the coexistence of the same right in all others. In a very general way we could say that the limit is rooted in reciprocity: we must all limit ourselves. However, if nearly everybody transgresses this duty of self-limitation, it would cease to be a duty for the one or the few who were ready to practise it faithfully.
224. The reply to the second part must be deduced from the three supreme moral duties to which, as we have said, every social government is obligated.(69) The first of these great duties of social governments mentioned by us is negative, that is, `not to place before the members of society any obstacle to their acquisition of virtue and moral contentment’. Hence, this first duty means that `all those enactments which limit the use of every human being’s right to use the best and most perfect means for obtaining virtue and moral contentment for himself are illicit and unjust.’
225. Every social administration must carefully reflect therefore that individual happiness is not, properly speaking, its task but only and always the task of individuals themselves.(70) Government can only safeguard this task: it can and must defend the free effort continually made by every member of society to attain so great an end; it can and must remove any obstacles and help each individual. But because government cannot do more than this, its action must be mostly negative, and its treatment of the members very cautious and reserved — more supervisory than directly involved. It must fear its own actions and take care that its enactments do not impede the task of happiness pursued by individuals in their private or hidden life; it must not fetter them, hold them back and weaken the effort to which nature, reason and the supreme being call them.
226. Here we must note that the means for moral contentment which are not absolutely necessary, speculatively considered, can be relatively necessary. The power of human freedom, considered generally and in itself, seems naturally greater than any temptation whatsoever against virtue, but this is not the case if we consider the power as it really is in each of us — our individual freedom is more or less limited and weak.(71) This explains why in the great Code common to all civilis4ed nations (I mean the Gospel) we find that `he whose eye causes him to sin, let him pluck it out and throw it away, and he whose foot causes him to sin, let him cut it off’(72) We should prefer a virtuous, happy person without eyes and feet rather than an evil, unhappy person with eyes and feet. These generous words of the author of the Gospel, which places true human good before every other good, presuppose the limitation of human freedom which cannot always prevent eye, foot or any other good, whatever value we give it, from causing sin and obstructing our end. Hence, granted this limitation of free activity, we see that the means by which we rid ourselves of objects good in themselves but harmful relative to us become necessary although they are not theoretically and absolutely necessary for our supreme end.
227. The publicist who attempts to indicate the just limits of governmental power and determine the moral duties which bind this power, must not limit himself to the theoretical consideration of the absolute necessity of the means conducive to human perfection. Theoretically, it is certain that no external means is absolutely necessary. This would easily lead to the false conclusion that means of this kind do not form the matter of inalienable rights relative to individuals, and that all means are therefore equally within governmental power; consequently government can dispose of them as it thinks fit. Certainly, publicists have till now considered the means necessary for virtue and individual perfection in this theoretical way, and as a result erroneously deduced many so-called powers and rights of social administration. On the contrary, it is most important to pay close attention to the relative necessity of these means. This necessity is not revealed simply by ideal speculations but by study of the facts and by careful observation of the different states and conditions of individual freedom as it is variously limited in different individuals.
Clearly, therefore, the means which are relatively necessary for the individual’s moral perfection constitute a right as inalienable as his right to be virtuous and happy.
228. We now see how the power of social government is limited, which to some extent explains and determines more precisely what we indicated earlier: `The power of social government must be exercised in such a way that its enactments do not prevent any individual from using those means which, relative to him, are necessary for the acquisition of his own moral contentment.’
This limit, although clear and true, is very delicate and easily exceeded. The government of any society whatsoever normally applies general enactments, and in most cases cannot do otherwise. — But this is precisely why they can easily err.
When a government draws up a general law or enactment, it believes it need consider only the general effects of the law or enactment, without descending to the anomalies of particular individuals. The intended law and the human nature to which the law is applied are considered solely in the abstract. This is not sufficient. Human nature, considered abstractly, is one and unique but, considered in individuals, it varies according to innumerable accidents. Often, these accidents contain the foundation of true natural rights in the individuals. Consequently, if the wisdom and justice of the governor or legislator has not foreseen that the proposed law or enactment can violate the individuals’ rights under discussion, the rights are unjustly sacrificed to the inexorable generality of law(73) formed without any attention to the important accidents of human nature and to the inviolable rights proceeding from it.
229. We have seen that contentment is not created in human beings simply by an act of freedom, as the Stoics claimed; a real good, granted to human beings independently of their free power, is also necessary.(74) Nevertheless the teachings holding sway in public right presuppose the stoic principle. The authors on public right, although professing other teachings which appear strangely at odds with this principle, seem to follow the stoic opinion on contentment when they come to determine governmental powers. They abstract entirely from the consideration that some means of contentment can be necessary relative to individuals. Instead, they suppose that these means are not at all necessary, but totally indifferent and never suitable for constituting titles to inalienable rights for individuals — this of course would be true if human contentment depended solely on a free human act. According to them therefore all those means remain in governmental power. Hence the government, disposing of them with imprudent prescriptions, very frequently violates the right we have both to our own contentment and to the means absolutely or relatively necessary for procuring it.
230. We must now deal with those means of virtue and individual contentment which, although neither absolutely nor relatively necessary, are absolutely or relatively useful for the same end. Do these form natural rights for members of society? The question was answered when we stated that `those enactments are illicit and unjust which limit the use of the right of all human beings to use the best and most perfect means to procure virtue and moral contentment for themselves.’(75)
231. Our initial solution deserves further clarification. We did not mean that the individual has the right to all those means which according to him possess the aptitude mentioned above. This would destroy social administration or make it impossible. We are talking only about those means which are actually best and most perfect. Consequently, if the means under consideration are not such, our principle cannot be applied. It is true that an individual’s real or apparent judgment about the suitability of these means can easily collide with that of the government. We will discuss later these collisions of judgment, which are often inevitable and constitute, as it were, a casus belli war between the administration and the individual member. We shall also indicate the way to reduce as much as possible, if not entirely avoid, the serious consequences arising from them.
232. Furthermore, when we affirm that an administration `cannot licitly or justly limit the use of the right of the individual to use the best means for procuring virtue and moral contentment for himself’, we simply mean that it is illicit for a government to do so without moral necessity. Such a necessity would result from the government’s obligation to defend an equal right in all individuals by preventing a particular individual from using his right to obstruct an equal use of the right in others. We have said that every individual is limited in the use of these means by the two moral duties of respect for others’ ownership and reciprocity.(76)
The government is the natural judge and defender of all these limits (this is the second of its principal moral duties towards the members of the society it governs)(77) which therefore constitute an unrestricted sphere of power. However, enactments of the government within this sphere do not restrict in any way the use of the individual’s right under discussion. On the contrary, they extend it first by removing the obstacles which individuals can cause each other when they abuse their rights, and then by protecting and defending each individual’s part. No one, I repeat, has the right to abuse his own right.
233. It remains true therefore that the use of the right which individuals have to use the best means for virtue and their own contentment can only be restricted by government in the case of the individual who abuses the right by exceeding these limits and thus harms the right of others.
234. Our right to use the best means for our moral contentment can be considered as a very general right from which we can deduce many special rights naturally possessed by each individual and to be respected by every wise and just government. I will comment on only one, because the purpose of this work is not to discuss public right but to indicate those parts of it which are necessary for the correct understanding of the nature of society and of the important teaching about its end.
All members of society have a special right, which must always remain intact, `to choose that way of life which they judge will contribute better to their procurement of moral good, that is, of the most perfect virtue and of moral contentment of spirit.’ The use of such an important right cannot be restricted in any way by the arbitrary will of government; it can only receive moral limits arising from particular duties. Hence, the way of life which we can choose by right, must
1. be licit in all respects,
2. not offend positive obligations already undertaken, and among these
obligations
3. must not in any way offend the obligation of social contribution, either by
personal endeavour or external goods.
Government can and must be vigilant so that all these limitations of the right of individuals under discussion are carefully observed.
Notes
(69) Chap. 10.
(70) This is a consequence of the principle that `happiness depends, as on an essential element, on the free judgment each person makes about his own eudaimonological state'.
(71) The various limitations of human freedom in different individuals have been dealt with at length in AMS, 567–763. — What I have said there shows the necessity of such a teaching on human freedom for anyone who wants to establish a truly practical and complete public right.
(72) Mt 18: [8–9].
(73) We must distinguish between the equality of a law and the generality of its conception. The former is an endowment necessary for the law to be just; the latter is a defect which often renders the law unjust.
(74) Chap. 4.
(75) Chap. 10.
(76) Chap. 12.
(77) Chap. 10.