Thursday, February 2, 2012

Liberty, Part XVI

From William Blackstone, from his Commentaries on the Laws of England:

“And, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution. This liberty, rightly understood, consists in the power of doing whatever the laws permit; which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest.”


“By the absolute rights of individuals we mean those which are in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) then they become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.”


“For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights if individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.”


“The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the laws of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free-will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontroled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.”

I think that Nathaniel Chipman's comments on this last paragraph are helpful -- a person in society (or, more accurately, under a government) does lose a part of that complete freedom of action, but the right to take every conceivable action never belonged to him, because he was obligated as a matter of right to respect the equal rights of other people.  It is unnecessary for him to surrender his rightful liberty in order to establish government and cause the boundaries between the equal rights of each person to be ascertained, marked, and guarded.

There are a few (of what might be called) exceptions to this, but they develop the principle more than they constitute exceptions to it.  Automobile traffic is a good model to show how there are times when positive law can actually improve upon parts of natural law.  In the first place, it would be fair to say that the first rule of the road is to avoid running into other cars.  That rule does not need to be established by law (which is not to say that it should not be) in order to exist, because everyone knows that it is important to avoid running into other cars, and everyone wants to avoid running into other cars, anyway.  Though some people apparently like to test the limits of what they can do without running into other cars (and, of course, some collisions do happen), everyone tries to maneuver and negotiate in their own action and movement so as to avoid colliding with others.  In some ways, however, positive law assists this "natural law" of the road, in addition to holding those responsible for collisions civilly liable.  At intersections, the first rule of the road still applies, but it provides no preference for the flow of traffic on major thoroughfares, or stoplights, or stop or yield signs.  Without the assistance of positive rules, I assume that all intersections would be a more confusing and dangerous version of a four-way stop.  The establishment of uniform rules for various types of intersections may limit motorists' discretion somewhat, but it assists them in what they were already trying to do, and what they were already obligated to do by the "natural law" of the road.  (I do not mean to suggest that the kind of discretion that governments have with respect to these rules would exist even on private property, however -- actually, most of the situations in which governments could rightly impose these kinds of rules concern public property or resources, or other collisions of right, which governments ought to prevent from turning into collisions of people.)  The other major exception is that there is a duty to support the essential functions of the government, given that it is necessary, as a matter of justice, and that those who benefit from its operation ought to pay for it.  This, of course, is not to say that a person could be justly forced to pay for anything the government does, regardless of how extravagant or unjustified it is.

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