The Man Versus the State [53]
underlies the entire fabric of political convictions formed, and more especially those convictions which concern the proper sphere of government. Here, then, I propose to revive a dormant controversy, with the expectation of reaching a different conclusion from that which is fashionable.
Says Professor Jevons, in his work, The State in Relation to Labour "The first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights." Of like character is the belief expressed by Mr Matthew Arnold, in his article on copyright: -- "An author has no natural right to a property in his production. But then neither has he a natural right to anything whatever which he may produce or acquire."(5*) So, too, I recently read in a weekly journal of high repute, that "to explain once more that there is no such thing as 'natural right' would be a waste of philosophy." And the view expressed in these extracts is commonly uttered by statesmen and lawyers in a way implying that only the unthinking masses hold any other. One might have expected that utterances to this effect would have been rendered less dogmatic by the knowledge that a whole school of legalists on the Continent, maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-recht is the root-idea of German jurisprudence. Now whatever may be the opinion held respecting German philosophy at large, it cannot be characterized as shallow. A doctrine current among a people distinguished above all others as laborious inquirers, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, however, by the way. Along with the proposition denied in the above quotations, there goes a counter-proposition affirmed. Let us see what it is; and what results when we go behind it and seek its warrant. On reverting to Bentham, we find this counter-proposition overtly expressed. He tells us that government fulfils its office "by creating rights which it confers upon individuals: rights of personal security; rights of protection for honour; rights of property;" etc.(6*) Were this doctrine asserted as following from the divine right of kings, there would be nothing in it manifestly incongruous. Did it come to us from ancient Peru, where the Ynca "was the source from which evening flowed";(7*) or from Shoa (Abyssinia), where "of their persons and worldly substance he [the king] is absolute master";(8*) or from Dahome, where "all men are slaves to the king";(9*) it would be consistent enough. But Bentham, far from being an absolutist like Hobbes, wrote in the interests of popular rule. In his Constitutional Code(10*) he fixes the sovereignty in the whole people; arguing that it is best "to give the sovereign power to the largest possible portion of those whose greatest happiness is the proper and chosen object," because "this proportion is more apt than any other that can be proposed" for achievement of that object. Mark, now, what happens when we put these two doctrines together. The sovereign people jointly appoint representatives, and so create a government; the government thus created, creates rights; and then, having created rights, it confers them on the separate members of the sovereign people by which it was itself created. Here is a marvellous piece of political legerdemain! Mr Matthew Arnold, contending, in the article above quoted, that "property is the creation of law," tells us to beware of the "metaphysical phantom of property in itself." Surely, among metaphysical phantoms the most shadowy is this which supposes a thing to be obtained by creating an agent, which creates the thing, and then confers the thing on its own creator.! From whatever point of view we consider it, Bentham's proposition proves to be unthinkable. Government, he says, fulfils its office "by creating rights." Two meanings may be given to the word "creating." It may be supposed to mean the production of something out of nothing;
Says Professor Jevons, in his work, The State in Relation to Labour "The first step must be to rid our minds of the idea that there are any such things in social matters as abstract rights." Of like character is the belief expressed by Mr Matthew Arnold, in his article on copyright: -- "An author has no natural right to a property in his production. But then neither has he a natural right to anything whatever which he may produce or acquire."(5*) So, too, I recently read in a weekly journal of high repute, that "to explain once more that there is no such thing as 'natural right' would be a waste of philosophy." And the view expressed in these extracts is commonly uttered by statesmen and lawyers in a way implying that only the unthinking masses hold any other. One might have expected that utterances to this effect would have been rendered less dogmatic by the knowledge that a whole school of legalists on the Continent, maintains a belief diametrically opposed to that maintained by the English school. The idea of Natur-recht is the root-idea of German jurisprudence. Now whatever may be the opinion held respecting German philosophy at large, it cannot be characterized as shallow. A doctrine current among a people distinguished above all others as laborious inquirers, and certainly not to be classed with superficial thinkers, should not be dismissed as though it were nothing more than a popular delusion. This, however, by the way. Along with the proposition denied in the above quotations, there goes a counter-proposition affirmed. Let us see what it is; and what results when we go behind it and seek its warrant. On reverting to Bentham, we find this counter-proposition overtly expressed. He tells us that government fulfils its office "by creating rights which it confers upon individuals: rights of personal security; rights of protection for honour; rights of property;" etc.(6*) Were this doctrine asserted as following from the divine right of kings, there would be nothing in it manifestly incongruous. Did it come to us from ancient Peru, where the Ynca "was the source from which evening flowed";(7*) or from Shoa (Abyssinia), where "of their persons and worldly substance he [the king] is absolute master";(8*) or from Dahome, where "all men are slaves to the king";(9*) it would be consistent enough. But Bentham, far from being an absolutist like Hobbes, wrote in the interests of popular rule. In his Constitutional Code(10*) he fixes the sovereignty in the whole people; arguing that it is best "to give the sovereign power to the largest possible portion of those whose greatest happiness is the proper and chosen object," because "this proportion is more apt than any other that can be proposed" for achievement of that object. Mark, now, what happens when we put these two doctrines together. The sovereign people jointly appoint representatives, and so create a government; the government thus created, creates rights; and then, having created rights, it confers them on the separate members of the sovereign people by which it was itself created. Here is a marvellous piece of political legerdemain! Mr Matthew Arnold, contending, in the article above quoted, that "property is the creation of law," tells us to beware of the "metaphysical phantom of property in itself." Surely, among metaphysical phantoms the most shadowy is this which supposes a thing to be obtained by creating an agent, which creates the thing, and then confers the thing on its own creator.! From whatever point of view we consider it, Bentham's proposition proves to be unthinkable. Government, he says, fulfils its office "by creating rights." Two meanings may be given to the word "creating." It may be supposed to mean the production of something out of nothing;