Chapter VIII: Part 8

122. But if the law which regulates private relations and its administration are so equally applied to all, that all who are capable of a common interest are prompted by that interest to conform to the law, the result is still only the loyal subject as distinct from the intelligent patriot, i.e. as distinct from the man who so appreciates the good which in common with others he derives from the state--from the nation organised in the form of a self-governing community to which he belongs--as to have a passion for serving it, whether in the way of defending it from external attack, or developing it from within. The citizens of the Roman empire were loyal subjects; the admirable maintenance of private rights made them that; but they were not intelligent patriots, and chiefly because they were not, the empire fell. That active interest in the service of the state, which makes patriotism in the better sense, can hardly arise while the individual's relation to the state is that of a passive recipient of protection in the exercise of his rights of person and property. While this is the case, he will give the state no thanks for the protection which he will come to take as a matter of course, and will only be conscious of it when it descends upon him with some unusual demand for service or payment, and then he will be conscious of it in the way of resentment. If he is to have a higher feeling of political duty, he must take part in the work of the state. He must have a share, direct or indirect, by himself acting as a member or by voting for the members of supreme or provincial assemblies, in making and maintaining the laws which he obeys. Only thus will he learn to regard the work of the state as a whole, and to transfer to the whole the interest which otherwise his particular experience would lead him to feel only in that part of its work that goes to the maintenance of his own and his neighbour's rights.

123. Even then his patriotism will hardly be the passion which it needs to be, unless his judgment of what he owes to the state is quickened by a feeling of which the 'patria,' the fatherland, the seat of one's home, is the natural object; and of this feeling the state becomes the object only so far as it is an organisation of a people to whom the individual feels himself bound by ties analogous to those which bind him to his family, ties derived from a common dwelling-place with its associations, from common memories, traditions and customs, and from the common ways of feeling and thinking which a common language and still more a common literature embodies. Such an organisation of an homogeneous people the modern state in most cases is (the two Austrian states being the most conspicuous exceptions), and such the Roman state emphatically was not.

124. But, it will be said, we are here again falling back on our unproved assumption that the state is an institution for the promotion of a common good. This granted, it is not difficult to make out that in most men at any rate there is a sufficient interest in some form of social well-being, sufficient understanding of the community between their own well-being and that of their neighbours, to make them loyal to such an institution. But the question is, whether the promotion of a common good, at any rate in any sense appreciable by the multitude, is any necessary characteristic of a state. It is admitted that the outward visible sign of a state is the presence of a supreme or independent coercive power, to which, habitual obedience is rendered by a certain multitude of people, and that this power may often be exercised in a manner apparently detrimental to the general well-being. It may be the case, as we have tried to show that it is, that a power which is in the main so exercised, and is generally felt to be so, is not likely long to maintain its supremacy; but this does not show that a state cannot exist without the promotion of the common good of its subjects, or that (in any intelligible way) the promotion of such good belongs to the idea of a state. A short-lived state is not therefore not a state, and if it were, it is rather the active interference with the subject's well-being, than a failure to promote it, that is fatal to the long life of a state. How, finally, can the state be said to exist for the sake of an end, or to fulfil an idea, the contemplation of which, it is admitted, has had little to do with the actions which have had most to do with bringing states into existence?

125. The last question is a crucial one, which must be met at the outset. It must be noticed that the ordinary conception of organisation, as we apply it in the interpretation of nature, implies that agents may be instrumental in the attainment of an end or the fulfilment of an idea of which there is no consciousness on the part of the organic agents themselves. If it is true on the one hand that the interpretation of nature by the supposition of ends external to it, with reference to which its processes are directed, has been discarded, and that its rejection has been the condition of growth in an exact knowledge of nature, on the other hand the recognition of ends immanent in nature, of ideas realised within it, is the basis of a scientific explanation of life. The phaenomena of life are not ideal, in the sense in which the ideal is opposed to that which is sensibly verifiable, but they are related to the processes of material change which are their conditions, as ideas or ideal ends which those processes contribute to realise, because, while they determine the processes (while the processes would not be what they are but for relation to them), yet they are not those processes, not identical with any one or number of them, or all of them together. Life does not reside in any of the organs of life, or in any or all of the processes of material change through which these pass. Analyse or combine these as you will, you do not detect it as the result of the analysis or combination. It is a function or end which they realise according to a plan or idea which determines their existence before they exist and survives their disappearance. If it were held, then, that the state were an organised community in the same sense in which a living body is, of which the members at once contribute to the function called life, and are made what they are by that function, according to an idea of which there is no consciousness on their part, we should only be following the analogy of the established method of interpreting nature.

126. The objection to such a view would be that it represents the state as a purely natural, not at all as a moral, organism. Moral agency is not merely an agency by which an end is attained, or an idea realised, or a function fulfilled, but an agency determined by an idea on the part of the agent, by his conception of an end or function; and the state would be brought into being and sustained by merely natural, as opposed to moral, agency, unless there were a consciousness of ends--and of ends the same in principle with that served by the state itself--on the part of those by whom it is brought into being, and sustained. I say 'ends the same in principle with that served by the state itself,' because, if the state arose out of the action of men determined, indeed, by the consciousness of ends, but ends wholly heterogeneous to that realised by the state, it would not be a moral institution, would not stand in any moral relation to men. Now among the influences that have operated in the formation of states, a large part, it must be admitted, are simply natural. Such are the influences of climate, of distribution of mountain and plain, land and water, &c, of all physical demarcations and means of communication. But these, it is clear, are only organic to the formation of states so far as, so to speak, they take a character, which does not belong to them as merely natural, from agencies distinctively human.

127. 'Human, if you like,' it may be replied, 'but not moral, if a moral agency implies any reference to a social or human good, to a good which the individual desires because it is good for others, or for mankind, as well as himself. In the earth--hunger of conquering hordes, in the passions of military despots, in the pride or avarice or vindictiveness which moved such men as Louis XI or Henry VIII to override the semi-anarchy of feudalism with a real sovereignty, what is there of reference to such good? Yet if we suppose the influence of such motives as these, together with the natural influences just spoken of, to be erased from the history of the formation of states, its distinguishing features are gone.'

128. The selfish motives described must not, any more than the natural influences, be regarded in abstraction, if we would understand their true place in the formation of states. The pure desire for social good does not indeed operate in human affairs unalloyed by egotistic motives, but on the other hand what we call egotistic motives do not act without direction from an involuntary reference to social good,--'involuntary' in the sense that it is so much a matter of course that the individual does not distinguish it from his ordinary state of mind. The most conspicuous modern instance of a man who was instrumental in working great and in some ways beneficial changes in the political order of Europe, from what we should be apt to call the most purely selfish motives, is Napoleon. Without pretending to analyse these motives precisely, we may say that a leading one was the passion for glory; but if there is to be truth in the statement that this passion governed Napoleon, it must be qualified by the farther statement that the passion was itself governed by social influences, operative on him, from which it derived its particular direction. With all his egotism, his individuality was so far governed by the action of the national spirit in and upon him, that he could only glorify himself in the greatness of France; and though the national spirit expressed itself in an effort after greatness which was in many ways of a mischievous and delusive kind, yet it again had so much of what may be called the spirit of humanity in it, that it required satisfaction in the belief that it was serving mankind. Hence the aggrandisement of France, in which Napoleon's passion for glory satisfied itself, had to take at least the semblance of a deliverance of oppressed peoples, and in taking the semblance it to a great extent performed the reality; at any rate in western Germany and northern Italy, wherever the Code Napoléon was introduced.

129. It is thus that actions of men, whom in themselves we reckon bad, are 'overruled' for good. There is nothing mysterious or unintelligible in such 'overruling.' There is nothing in the effect which we ascribe to the 'overruling,' any more than in any effect belonging to the ordinary course of nature, which there was not in the cause as it really was and as we should see it to be if we fully understood it. The appearance to the contrary arises from our taking too partial and abstract a view of the cause. We look at the action e.g. of Napoleon with reference merely to the selfishness of his motives. We forget how far his motives, in respect of their concrete reality, in respect of the actual nature of the ends pursued as distinct from the particular relation in which those ends stood to his personality, were made for him by influences with which his selfishness had nothing to do. It was not his selfishness that made France a nation, or presented to him continuously an end consisting in the national aggrandisement of France, or at particular periods such ends as the expulsion of the Austrians from Italy, the establishment of a centralised political order in France on the basis of social equality, the promulgation of the civil code, the maintenance of the French system along the Rhine. His selfishness gave a particular character to his pursuit of these ends, and (so far as it did so) did so for evil. Finally it led him into a train of action altogether mischievous. But at each stage of his career, if we would understand what his particular agency really was, we must take account of his ends in their full character, as determined by influences with, which, his passion for glory no doubt co-operated, but which, did not originate with it or with him, and in some measure represented the struggle of mankind towards perfection.

130. And not only must we thus correct our too abstract views of the particular agency of such a man as Napoleon. If we would understand the apparent results of his action, we must bear in mind how much besides his particular agency has really gone to produce them, so far as they were good; how much of unnoticed effort on the part of men obscure because unselfish, how much of silent process in the general heart of man. Napoleon was called the 'armed soldier of revolution,' and it was in that character that he rendered what service he did to men; but the revolution was not the making of him or his likes. Caesar again we have learnt to regard as a benefactor of mankind, but it was not Caesar that made the Roman law, through which chiefly or solely the Roman empire became a blessing. The idiosyncrasy, then, of the men who have been most conspicuous in the production of great changes in the condition of mankind, though it has been an essential element in their production, has been so only so far as it has been overborne by influences and directed to ends, which were indeed not external to the men in question--which on the contrary helped to make them inwardly and spiritually what they really were--but which formed no part of their distinguishing idiosyncrasy. If that idiosyncrasy was conspicuously selfish, it was still not through their selfishness that such men contributed to mould the institutions by which nations have been civilised and developed, but through their fitness to act as organs of impulses and ideas which had previously gained a hold on some society of men, and for the realisation of which the means and conditions had been preparing quite apart from the action of those who became the most noticeable instruments of their realisation.

131. The assertion, then, that an idea of social good is represented by, or realised in, the formation of states, is not to be met by pointing to the selfishness and bad passions of men who have been instrumental in forming them, if there is reason to think that the influences, under the direction of which these passions became thus instrumental, are due to the action of such an idea. And when we speak thus we do not refer to any action of the idea otherwise than in the consciousness of men. It may be legitimate, as we have seen, to consider ideas as existing and acting otherwise, and perhaps, on thinking the matter out, we should find ourselves compelled to regard the idea of social good as a communication to the human consciousness, a consciousness developing itself in time, from an eternally complete consciousness. But here we are considering it as a source of the moral action of men, and therefore necessarily as having its seat in their consciousness, and the proposition advanced is that such an idea is a determining element in the consciousness of the most selfish men who have been instrumental in the formation or maintenance of states; that only through its influence in directing and controlling their actions could they be so instrumental; and that, though its active presence in their consciousness is due to the institutions, the organisation of life, under which they are born and bred, the existence of these institutions is in turn due to the action, under other conditions, of the same idea in the minds of men.

132. It is the necessity of a supreme coercive power to the existence of a state that gives plausibility to the view that the action of merely selfish passions may lead to the formation of states. They have been motive causes, it would seem, in the processes by which this 'imperium' has been established; as, e.g., the acquisition of military power by a tribal chieftain, the conquest of one tribe by another, the supersession of the independent prerogatives of families by a tyrant which was the antecedent condition of the formation of states in the ancient world, the supersession of feudal prerogatives by the royal authority which served the same purpose in modern Europe. It is not, however, supreme coercive power, simply as such, but supreme coercive power exercised in a certain way and for certain ends, that makes a state; viz. exercised according to law, written or customary, and for the maintenance of rights. The abstract consideration of sovereignty has led to these qualifications being overlooked. Sovereignty = supreme coercive power, indeed, but such power as exercised in and over a state, which means with the qualifications specified; but the mischief of beginning with an inquiry into sovereignty before the idea of a state has been investigated, is that it leads us to adopt this abstract notion of sovereignty, as merely supreme coercive power, and then, when we come to think of the state as distinguished by sovereignty, makes us suppose that supreme coercive power is all that is essential to a state, forgetting that it is rather the state that makes the sovereign, than the sovereign that makes the state. Supposing one man had been master of all the slaves in one of the states of the American Union, there would have been a multitude of men under one supreme coercive power, but the slaves and the master would have formed no state, because there would have been no recognised rights of slave against slave enforced by the master, nor would dealings between master and slaves have been regulated by any law. The fact that sovereign power, as implied in the fact of its supremacy, can alter any laws, is apt to make us overlook the necessity of conformity to law on the part of the sovereign, if he is to be the sovereign of a state. A power that altered laws otherwise than according to law, according to a constitution, written or unwritten, would be incompatible with the existence of a state, which is a body of persons, recognised by each other as having rights, and possessing certain institutions for the maintenance of those rights. The office of the sovereign, as an institution of such a society, is to protect those rights from invasion, either from without, from foreign nations, or from within, from members of the society who cease to behave as such. Its supremacy is the society's independence of such attacks from without or within. It is an agency of the society, or the society itself acting for this end. If the power, existing for this end, is used on the whole otherwise than in conformity either with a formal constitution or with customs which virtually serve the purpose of a constitution, it is no longer an institution for the maintenance of rights and ceases to be the agent of a state. We only count Russia a state by a sort of courtesy on the supposition that the power of the Czar, though subject to no constitutional control, is so far exercised in accordance with a recognised tradition of what the public good requires as to be on the whole a sustainer of rights.

It is true that, just as in a state, all law being derived from the sovereign, there is a sense in which the sovereign is not bound by any law, so there is a sense in which all rights are derived from the sovereign, and no power which the sovereign refuses to allow can be a right; but it is only in the sense that, the sovereign being the state acting in a certain capacity, and the state being an institution for the more complete and harmonious maintenance of the rights of its members, a power, claimed as a right, but which the state or sovereign refuses to allow, cannot be really compatible with the general system of rights. In other words, it is true only on the supposition that a state is made a state by the functions which it fulfils of maintaining the rights of its members as a whole or a system, in such a way that none gains at the expense of another (no one has any power guaranteed to him through another's being deprived of that power). Thus the state, or the sovereign as a characteristic institution of the state, does not create rights, but gives fuller reality to rights already existing. It secures and extends the exercise of powers, which men, influenced in dealing with each other by an idea of common good, had recognised in each other as being capable of direction to that common good, and had already in a certain measure secured to each other in consequence of chat recognition. It is not a state unless it does so.

133. It may be said that this is an arbitrary restriction of the term 'state.' If any other word, indeed, can be found to express the same thing, by all means let it be used instead. But some word is wanted for the purpose, because as a matter of fact societies of men, already possessing rights, and whose dealings with each other have been regulated by customs conformable to those rights, but not existing in the form to which the term 'state' has just been applied (i.e. not having a systematic law in which the rights recognised are harmonised, and which is enforced by a power strong enough at once to protect a society against disturbance within and aggression from without), have come to take on that form. A word is needed to express that form of society, both according to the idea of it which has been operative in the minds of the members of the societies which have undergone the change described (an idea only gradually taking shape as the change proceeded), and according to the more explicit and distinct idea of it which we form in reflecting on the process. The word 'state' is the one naturally used for the purpose. The exact degree to which the process must have been carried before the term 'state' can be applied to the people in which it has gone on, cannot be precisely determined, but as a matter of fact we never apply it except in cases where it has gone some way, and we are justified in speaking of the state according to its idea as the society in which it is completed.

134. It is a mistake then to think of the state as an aggregation of individuals under a sovereign; equally so whether we suppose the individuals as such, or apart from what they derive from society, to possess natural rights, or suppose them to depend on the sovereign for the possession of rights. A state presupposes other forms of community, with the rights that arise out of them, and only exists as sustaining, securing, and completing them. In order to make a state there must have been families of which the members recognised rights in each other (recognised in each other powers capable of direction by reference to a common good); there must further have been intercourse between families, or between tribes that have grown out of families, of which each in the same sense recognised rights in the other. The recognition of a right being very short of its definition, the admission of a right in each other by two parties, whether individuals, families, or tribes, being very different from agreement as to what the right consists in, what it is a right to do or acquire, the rights recognised need definition and reconciliation in a general law. When such a general law has been arrived at, regulating the position of members of a family towards each other and the dealings of families or tribes with each other; when it is voluntarily recognised by a community of families or tribes, and maintained by a power strong enough at once to enforce it within the community and to defend the integrity of the community against attacks from without, then the elementary state has been formed.

135. That, however, is the beginning, not the end, of the state. When once it has come into being, new rights arise in it (1) through the claim for recognition on the part of families and tribes living on the same territory with those which in community form the state, but living at first in some relation of subjection to them. A common humanity, of which language is the expression, necessarily leads to the recognition of some good as common to these families with those which form the state. This is in principle the recognition of rights on their part; and the consequent embodiment of this recognition in the laws of the state is their admission as members of it. (Instances of this process are found in the states of Greece and the early history of Rome.) (2) The same thing may happen in regard to external communities ('external' territorially), whether these have been already formed into states or no. It may happen through the conquest of one by another, through their submission to a common conqueror, as under the Roman empire, or through voluntary combination, as with the Swiss cantons and the United States of America. However the combination may arise, it results in new rights as between the combined communities within the system of a single state. (3) The extended intercourse between individuals, which the formation of the state renders possible, leads to new complications in their dealings with each other, and with it to new forms of right, especially in regard to property; rights as far removed from any obvious foundation on the _suum cuique_ principle as the right of a college to the great tithes of a parish for which it does nothing. (4) The administration of the state gives rise to rights, to the establishment of powers necessary for its administration. (5) New situations of life may arise out of the extended dealings of man with man which the state renders possible (e.g. through the crowding of population in certain localities) which make new modes of protecting the people a matter virtually of right. And, as new rights arise in the state once formed, so further purposes are served. It leads to a development and moralisation of man beyond the stage which they must have reached before it could be possible.

136. On this I shall dwell more in my next course of lectures. What I am now concerned to point out is that, however necessary a factor force may have been in the process by which states have been formed and transformed, it has only been such a factor as co-operating with those ideas without which rights could not exist. I say 'could not _exist_,' not 'could not be recognised,' because rights are made by recognition. There is no right 'but thinking makes it so'; none that is not derived from some idea that men have about each other. Nothing is more real than a right, yet its existence is purely ideal, if by 'ideal' is meant that which is not dependent on anything material but has its being solely in consciousness. It is to these ideal realities that force is subordinate in the creation and development of states. The force of conquest from without, the force exercised within communities by such agents as the early Greek tyrants or the royal suppressors of feudalism in modern Europe, has only contributed to the formation of states in so far as its effects have taken a character which did not belong to them as effects of force; a character due to their operation in a moral world, in which rights already existed, resting on the recognition by men of each other as determined, or capable of being determined, by the conception of a common good. It is not indeed true that only a state can produce a state, though modern history might seem to favour that notion. As a matter of fact, the formation of modern states through feudalism out of an earlier tribal system has been dependent on ideas derived from the Roman state, if not on institutions actually handed down from it; and the improvement and development of the state-system which has taken place since the French Revolution has been through agencies which all presuppose and are determined by the previous existence of states. But the Greek states, so far as we know, were a first institution of the kind, not a result of propagation from previously existing states. But the action which brought them into being was only effectual for its purpose, because the idea of right, though only in the form of family or tribal right, was already in operation.

H. _HAS THE CITIZEN RIGHTS AGAINST THE STATE?_

137. I propose to pursue the inquiry, begun in my last course, into the nature and functions of the state. In the last course we were chiefly occupied with criticism. We have seen that no true conception of the rights of individuals against each other or against the state, or of the rights of the state over individuals, can be arrived at, while we look upon the state merely as an aggregation of individuals under a sovereign power that is able to compel their obedience, and consider this power of compelling a general obedience to be the characteristic thing in a state. So long as this view is retained, no satisfactory answer can be given to the question, by what right the sovereign compels the obedience of individuals. It can only be met either by some device for representing the individuals as so consenting to the exercise of sovereign power over them that it is no violation of their individual rights, or by representing the rights of individuals as derived from the sovereign and thus as having no existence against it. But it is obviously very often against the will of individuals that the sovereign power is exercised over them; indeed if it were not so, its characteristic as a power of compulsion would be lost; it would not be a sovereign power; and the fact that the majority of a given multitude may consent to its exercise over an unconsenting minority, is no justification for its exercise over that minority, if its justification is founded on consent; the representation that the minority virtually consent to be bound by the will of the majority being an obvious fiction. On the other hand, the theory that all right is derived from a sovereign, that it is a power of which the sovereign secures the exercise to the individual, and that therefore there can be no right against the sovereign, conflicts with the primary demands of human consciousness. It implies the identification of 'I ought' with 'I am forced to.' Reducing the 'right' of the sovereign simply to a power, it makes it unintelligible that this power should yet represent itself as a right, and claim obedience to itself as such. No such theory indeed admits of consistent statement. To say (with Hobbes) that a law may be inequitable or pernicious, though it cannot be unjust, is to admit a criticism of laws, a distinction between those enactments of the sovereign which are what they should be and those which are not. And this is to recognise the individual's demand for a justification of the laws which he obeys; to admit in effect that there is some rule of right, of which the individual is conscious, and to which law ought to conform.

138. It is equally impossible, then, to hold that the right of the sovereign power in a state over its members is dependent on their consent, and, on the other hand, that these members have no rights except such as are constituted and conferred upon them by the sovereign. The sovereign, and the state itself as distinguished by the existence of a sovereign power, presupposes rights and is an institution for their maintenance. But these rights do not belong to individuals as they might be in a state of nature, or as they might be if each acted irrespectively of the others. They belong to them as members of a society in which each recognises the other as an originator of action in the same sense in which he is conscious of being so himself (as an 'ego,' as himself the object which determines the action), and thus regards the free exercise of his own powers as dependent upon his allowing an equally free exercise of his powers to every other member of the society. There is no harm in saying that they belong to individuals as such, if we understand what we mean by 'individual,' and if we mean by it a self-determining subject, conscious of itself as one among other such subjects, and of its relation to them as making it what it is; for then there is no opposition between the attachment of rights to the individuals as such and their derivation from society. They attach to the individual, but only as a member of a society of free agents, as recognising himself and recognised by others to be such a member, as doing and done by accordingly. A right, then, to act unsocially,--to act otherwise than as belonging to a society of which each member keeps the exercise of his powers within the limits necessary to the like exercise by all the other members,--is a contradiction. No one can say that, unless he has consented to such a limitation of his powers, he has a right to resist it. The fact of his not consenting would be an extinction of all right on his part.

139. The state then presupposes rights, and rights of individuals. It is a form which society takes in order to maintain them. But rights have no being except in a society of men recognising each other as ἴσοι καὶ ὅμοιοι. [1] They are constituted by that mutual recognition. In analysing the nature of any right, we may conveniently look at it on two sides, and consider it as on the one hand a claim of the individual, arising out of his rational nature, to the free exercise of some faculty; on the other, as a concession of that claim by society, a power given by it to the individual of putting the claim in force. But we must be on our guard against supposing that these distinguishable sides have any really separate existence. It is only a man's consciousness of having an object in common with others, a well-being which is consciously his in being theirs and theirs in being his,--only the fact that they are recognised by him and he by them as having this object,--that gives him the claim described. There can be no reciprocal claim on the part of a man and an animal each to exercise his powers unimpeded by the other, because there is no consciousness common to them. But a claim founded on such a common consciousness is already a claim conceded; already a claim to which reality is given by social recognition, and thus implicitly a right.

[1] [Greek ἴσοι καὶ ὅμοιοι (isoi kai homoioi) = equals and alike, plural Tr]

140. It is in this sense that a slave has 'natural rights' They are 'natural' in the sense of being independent of, and in conflict with, the laws of the state in which he lives, but they are not independent of social relations. They arise out of the fact that there is a consciousness of objects common to the slave with those among whom he lives,--whether other slaves or the family of his owner,--and that this consciousness constitutes at once a claim on the part of each of those who share it to exercise a free activity conditionally upon his allowing a like activity in the others, and a recognition of this claim by the others through which it is realised. The slave thus derives from his social relations a real right which the law of the state refuses to admit. The law cannot prevent him from acting and being treated, within certain limits, as a member of a society of persons freely seeking a common good. Now that capability of living in a certain limited community with a certain limited number of human beings, which the slave cannot be prevented from exhibiting, is in principle a capability of living in community with any other human beings, supposing the necessary training to be allowed; and as every such capability constitutes a right, we are entitled to say that the slave has a right to citizenship, to a recognised equality of freedom with any and every one with whom he has to do, and that in refusing him not only citizenship but the means of training his capability of citizenship, the state is violating a right founded on that common human consciousness which is evinced both by the language which the slave speaks, and by actual social relations subsisting between him and others. And on the same principle upon which a state is violating natural rights in maintaining slavery, it does the same in using force, except under the necessity of self-defence, against members of another community. Membership of any community is so far, in principle, membership of all communities as to constitute a right to be treated as a freeman by all other men, to be exempt from subjection to force except for prevention of force.

141. A man may thus have rights as a member of a family or of human society in any other form, without being a member of a state at all,--rights which remain rights though any particular state or all states refuse to recognise them; and a member of a state, on the ground of that capability of living as a freeman among freemen which is implied in his being a member of a state, has rights as against all other states and their members. These latter rights are in fact during peace recognised by all civilised states. It is the object of 'private international law' to reduce them to a system. But though it follows from this that the state does not create rights, it may be still true to say that the members of a state derive their rights from the state and have no rights against it. We have already seen that a right against society, as such, is an impossibility; that every right is derived from some social relation: that a right against any group of associated men depends on association, as ἴσος καὶ ὅμοιος [1], with them and with some other men. Now for the member of a state to say that his rights are derived from his social relations, and to say that they are derived from his position as member of a state, are the same thing. The state is for him the complex of those social relations out of which rights arise, so far as those rights have come to be regulated and harmonised according to a general law, which is recognised by a certain multitude of persons, and which there is sufficient power to secure against violation from without and from within. The other forms of community which precede and are independent of the formation of the state, do not continue to exist outside it, nor yet are they superseded by it. They are carried on into it. They become its organic members, supporting its life and in turn maintained by it in a new harmony with each other. Thus the citizen's rights, e.g. as a husband or head of a family or a holder of property, though such rights, arising out of other social relations than that of citizen to citizen, existed when as yet there was no state, are yet to the citizen derived from the state, from that more highly developed form of society in which the association of the family and that of possessors who respect each other's possessions are included as in a fuller whole; which secures to the citizen his family rights and his rights as a holder of property, but under conditions and limitations which the membership of the fuller whole--the reconciliation of rights arising out of one sort of social capability with those arising out of another--renders necessary. Nor can the citizen have any right against the state, in the sense of a right to act otherwise than as a member of some society, the state being for its members the society of societies, the society in which all their claims upon each other are mutually adjusted.

[1] [Greek ἴσος καὶ ὅμοιος (isos kai homoios) = equal and alike, singular Tr.]

142. But what exactly is meant by the citizen's acting 'as a member of his state'? What does the assertion that he can have no right to act otherwise than as a member of his state amount to? Does it mean that he has no right to disobey the law of the state to which he belongs, whatever that law may be? that he is not entitled to exercise his power in any way that the law forbids and to refuse to exercise them in any way that it commands? This question was virtually dealt with before [1] in considering the justifiability of resistance to an ostensible sovereign. The only unqualified answer that can be given to it is one that may seem too general to be of much practical use, viz. that so far as the laws anywhere or at any time in force fulfil the idea of a state, there can be no right to disobey them; or, that there can be no right to disobey the law of the state except in the interest of the state; i.e. for the purpose of making the state in respect of its actual laws more completely correspond to what it is in tendency or idea, viz. the reconciler and sustainer of the rights that arise out of the social relations of men. On this principle there can be no right to disobey or evade any particular law on the ground that it interferes with any freedom of action, any right of managing his children or 'doing what he will with his own,' which but for that law the individual would possess. Any power which has been allowed to the individual up to a certain time, he is apt to regard as permanently his right. It has, indeed, been so far his right, if the exercise of that power has been allowed with any reference to social good, but it does not, as he is apt to think, remain his right when a law has been enacted that interferes with it. A man e.g. has been allowed to drive at any pace he likes through the streets, to build houses without any reference to sanitary conditions, to keep his children at home or send them to work 'analphabetic,' to buy or sell alcoholic drinks at his pleasure. If laws are passed interfering with any or all of these powers, he says that his rights are being violated. But he only possessed these powers as rights through membership of a society which secured them to him, and of which the only permanent bond consists in the reference to the well-being of its members as a whole. It has been the social recognition grounded on that reference that has rendered certain of his powers rights. If upon new conditions arising, or upon elements of social good being taken account of which had been overlooked before, or upon persons being taken into the reckoning as capable of participation in the social well-being who had previously been treated merely as means to its attainment,--if in any of these ways or otherwise the reference to social well-being suggest the necessity of some further regulation of the individual's liberty to do as he pleases, he can plead no right against this regulation, for every right that he has possessed has been dependent on that social judgment of its compatibility with general well-being which in respect to the liberties in question is now reversed.

[1] [Above, sections 100, 101. RLN]

143. 'Is then,' it may be asked, 'the general judgment as to the requirements of social well-being so absolutely authoritative that no individual right can exist against it? What if according to this judgment the institution of slavery is so necessary that citizens are prohibited by law from teaching slaves to read and from harbouring runaways? or if according to it the maintenance of a certain form of worship is so necessary that no other worship can be allowed and no opinion expressed antagonistic to it? Has the individual no rights against enactments founded on such accepted views of social well-being?' We may answer: A right against society as such, a right to act without reference to the needs or good of society, is an impossibility, since every right depends on some social relation, and a right against any group of associated men depends upon association on some footing of equality with them or with some other men. We saw how the right of the slave really rested on this basis, on a social capacity shown in the footing on which he actually lives with other men. On this principle it would follow, if we regard the state as the sustainer and harmoniser of social relations, that the individual can have no right against the state; that its law must be to him of absolute authority. But in fact, as actual states at best fulfil but partially their ideal function, we cannot apply this rule to practice. 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. The fact that the individual would like to exercise the power claimed as a right does not render the exercise of it a right, nor does the fact that he has been hitherto allowed to exercise it render it a right, if social requirements have arisen under changed conditions, or have newly come to be recognised, with which its exercise is incompatible. 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. It is not a question whether or no it ought to be claimed as a right; it simply cannot be claimed except on this condition. It would have been impossible, e.g., in an ancient state, where the symbol of social union was some local worship, for a monotheistic reformer to claim a right to attempt the subversion of that worship. If a duty to do so had suggested itself, consciousness of the duty could never have expressed itself in the form of a claim of right, in the absence of any possible sense of a public interest in the religious revolution to which the claim could be addressed. Thus, just as it is not the exercise of every power, properly claimable as a right, that is a right in the full or explicit sense of being legally established, so it is not every power, of which the exercise would be desirable in an ideal state of things, that is properly claimable as a right. The condition of its being so claimable is that its exercise should be contributory to some social good which the public conscience is capable of appreciating, not necessarily one which in the existing prevalence of private interests can obtain due acknowledgment, but still one of which men in their actions and language show themselves to be aware.