IV

LAW AS MUTUAL OBLIGATION

If, from the point of view of jurisprudence, there exists in human society no unlimited right of legislation, either by the prince or by the people, it is necessary to determine where the proper limit of legislative authority is to be found.

Without doubt, the State, in order to realize the purpose for which it exists— namely, to establish order, and to afford security to the rights of the individuals who compose it-must possess some power of restraint; that is, it must be, in some sense, sovereign. The legitimate source of this sovereignty, in the light of what has been said, is evident. It is the same as that from which all individual rights are derived-the

mutual obligations of the individuals who compose the community.

It is essential at this point to comprehend the significance of this statement. What is the precise meaning of a “right?" What do we have in mind when we speak of a right as “inherent,” and “inalienable”?

There are those who would reply that these terms "inherent" and "inalienable" are, in fact, meaningless. There are in the

, real world, they contend, only concrete forces and their relations. When men have obtained possession of certain material things, or control certain forces, or have established certain social conditions which they can maintain, they may be said to have certain "rights”; that is, "rights” are only such relations between persons as, if questioned, can be maintained by force. The rules of action which grow out of such enforced relations constitute the law.

This theory of “rights” is, in truth, a

denial of all essential rightfulness; and is only another way of declaring that; in the last analysis, might is right. If it were correct, we might with propriety eliminate the word right and its equivalents from our vocabulary, and confine ourselves to the categories of success and failure. There would then be for jurisprudence no place in the realm of thought. We should be compelled to confess that force is the legitimate ruler of the world, and that right is a mere fiction of the mind.

THE INTUITION OF OBLIGATION

If the conception of “rights” as inherent and inalienable were a merely personal and transient phase of thought, it might be necessary to accept this conclusion, and to speak of so-called “inherent rights” as mere individual aspirations. In view of the whole history of thought, however, we cannot admit that position. Whatever the changing dispositions of force may have been, the idea that human personality, as such, is entitled to some consideration is as universal as human consciousness. Various as may be the personal estimates of what is intrinsically right or wrong in human relations, there has never existed a tribe of savages so low in intelligence as not to recognize the existence of some rights and duties, entirely apart from every form of physical compulsion. Not only so, but if there be any standard by which degrees of superiority in human intelligence can be determined, it is to be found precisely in the development of the faculty which distinguishes between what “ought” and what “ought not” to be done, or to be endured.

It is, then, from this intuition of mutual obligation that, under the guidance of reason, all human authority is to be derived; and, per contra, it cannot possibly exceed

the limits of the source from which it springs.

It is true, that such an intuition, giving rise to the idea of “rights” on the one hand and of "duties" on the other—the essential correlates of the idea of obligation—is merely a form of intelligence, without concrete content, until it is applied to the materials of experience. It is analogous to the mathematical intuitions which furnish the regulative norms of all exact science.

What is here most important to consider is, that in such an intuition there is no element of will, or interest, or sensibility. There is in it no element of personal determination. Its whole purport is, that something is seen to be true, namely, that in any organized community of men there must be mutuality of obligation. Each has his sphere of private interests which all others are in justice bound to respect. If they do respect them, that is right; if they do not