Friday, March 9, 2012

Edmund Burke, on the Right to Defend 2

Burke: “One of the first motives to civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause. By this each person has at once divested himself of the first fundamental right of uncovenanted man, that is, to judge for himself, and to assert his own cause. He abdicates all right to be his own governor. He inclusively, in a great measure, abandons the right of self-defence, the first law of nature. Men cannot enjoy the rights of an uncivil and of a civil state together. That he may obtain justice he gives up his right of determining what it is in points the most essential to him. That he may secure some liberty, he makes a surrender in trust of the whole of it.”

That may seem to support the Barnes court’s point of view, but it doesn’t.  Burke is clearly talking about a couple of things that, in the “state of nature,” would be considered a part of the right to self-defense: 1st, revenge and punishment, and 2nd, obtaining justice in cases where the state, if it existed, could have obtained it for him.  He is not saying that damages are the equivalent of a constitutional or proto-constitutional right, and that people in society may not repel a present attack with reasonable force, where government is not defending them and where government itself is the attacker, just because they can attempt to sue for damages, later.

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