Contemporary theories of rights.

• Author: Rehnquist, William H.

PREFACE CHAPTER I. THE GENERAL CONCEPT OF RIGHTS CHAPTER II. THE FUNCTIONAL BASIS OF RIGHTS CHAPTER III. INSTRUMENTALISM AND FUNCTIONALISM EXAMINED CHAPTER IV. THE MORAL BASIS OF INDIVIDUAL RIGHTS CHAPTER V. WHAT RIGHTS SHOULD THE STATE RECOGNIZE? CHAPTER VI. CONCLUSION BIBLIOGRAPHY [*i] PREFACE

We often experience disappointment upon reaching the conclusion of a treatise on political philosophy. Too frequently the vigorous, forthright style and logic which an author employs during the first chapters in criticizing the "fatal errors" of preceding doctrines on his subject give way in the conclusion of the book to exactly the same type of errors when he attempts to build, however eclectically, a theory of his own. If the author has honestly attempted to meet his problem, we may well find that his approach, in attempting to be fair and to accord with common sense as well as logic, loses its vigor and becomes mincing and apologetic. On the other hand, if the author has made no attempt to carry over his ideas into the realm of actualities, we may feel that a tenable approach to the problems of morals and politics has been sacrificed to a too rigid exercise in logic.

It is between this Scylla and Charybdis that even such an elementary study as the present one must steer. It is apparent upon a cursory examination of the history of philosophy that in order to set forth any startlingly new doctrine, we must risk shipwreck on one or the other; we must resort either to a logical tour de force or to a formless theory which can be all things to all men. For the great middle channel, which avoids both of these extremes, has been thoroughly explored by the great minds which have addressed themselves to the [*ii] subject. The reconciliation of liberty with authority, which is the most vital problem in political theory, and its corollary questions of the purpose of the state and the nature of political obligation, admit of but few practical solutions which avoid both extremes. It can be truthfully said that the great answers to these questions have differed in degree of shading rather than in fundamentally opposed precepts.

Viewing these problems in historical retrospect, one cannot but ask himself if any solution is possible, or even if lasting progress has been made since men first perplexed themselves with the political phase of their existence. There are few ideas in political theory or in philosophy as a whole which cannot be traced back in some form to Plato, Aristotle, and their amazingly fertile period of Greek speculative thought. Indeed, there are those who think that the philosophical efforts of the ancient Greeks rank far above contemporary works on the subject. At any rate, when one considers the enduring quality of ancient political thought, lasting in spite of the entirely different concrete political situation with which they dealt, one must look askance at those who proclaim that the only thing permanent is change. History and psychology demonstrate that though political systems and political institutions rise and fall, the qualities in man which make him a social animal and constantly spur him on in his search for peace, liberty, and security remain relatively constant.

The inherent demand of the mind for unity and [*iii] relatedness among the various branches of knowledge and thought cautions us that a series of logical propositions may entirely fail to relate the questions of political theory to the totality of human experience under which they must be subsumed. Underlying any system of politics, morals, or social values there must be a theory of human nature; in this regard it must be conceded that there is some validity to Bergson's anti-rational contention that this basic principle, this inner reality of human nature must be intuited as a living entity rather than dissected with words. Even if we are unwilling to follow Bergson all the way, no one would deny that it is political theory which must adapt itself to human nature and not vice versa. Testimony to the truth of this proposition is the enduring quality of the famous apothegms of poets and philosophers, which live in the world of action as well as that of ideas because they reached in and grasped, if only momentarily, the essence of the problems with which they were dealing. As examples, we might cite Plato's famous phrase, that cities will never have rest from their evils "until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy," or Alexander Pope's couplet, "Let fools for forms of government contest, whate'er is best administered is best." These are household expressions, whereas many much longer and more elaborately reasoned attempts have "fallen dead-born from the press."

When we compare the emotional dynamism of the vast [*iv] written literature on the subjects of philosophy and politics with that of the great tragedies in the field of drama, with the masterworks of art, and with the finest efforts of the great musical composers, we may well have misgivings as to whether the logical treatise method which has characterized almost all of philosophy since its inception can ever sufficiently grasp the human reality which is the nexus of the problems which it seeks to solve. It may well be replied that the purpose of political philosophy is not the same as that of art or even literature, and that it cannot be measured by the same standards. Political philosophy need not, nay, should not have an emotional content.

There is undoubtedly substance to this contention, but in my opinion it is to a certain degree superficial. Admittedly philosophical treatises are not intended to have the same emotional appeal as dramatic tragedy or great music. But nevertheless, I believe that insofar as political philosophy neglects the emotional side of human nature in deference to academic standards of tempered rationality, it loses one of the principal forces which project it from the library into the market place. If we write only for the edification of academicians like ourselves, this will not concern us; but anyone who hopes that someday his words will become the thoughts of others in a search for some more suitable form of political society cannot overlook it.

With these considerations in mind, we are less [*v] surprised that definitive solutions to the questions posed by political theory have not yet been reached. Even the efforts of those who were the greatest thinkers of their day have been discarded by succeeding generations insofar as they claimed to be unified answers to the basic questions, though frequently their observations on certain issues, the truths of a fundamental nature which they pointed out, have remained to give immortality to their names.

To undertake an unpretentious study such as the present one with any hope of making a lasting contribution in the field would be sheer folly. The most that can be hoped for is that the author has succeeded in organizing the material in some such slightly different way that the reader may find it easier to formulate for himself the answers to the questions which the subject has always presented.

My obvious indebtedness to the many authors upon whose ideas I have drawn, both consciously and unconsciously, can only be recorded here; the magnitude of the obligation will become apparent in the succeeding pages. To Dr. Frederick Anderson of the Romanic Languages Department at Stanford University I am indebted for his generous help on the question of the development of natural law and natural rights from the thought of the Stoics. I wish to thank also Dr. Kurt Reinhardt of the Germanic Languages Department at Stanford University for his help in the treatment of St. Thomas Aquinas. [*vi]

Above all, I wish to express my gratitude to Dr. Arnaud B. Leavelle, of the Political Science Department at Stanford University, whose supervision of this work at every stage passed beyond the realm of academic duty into that of personal friendship.

William H. Rehnquist

Stanford University

July, 1948 [*1]

CHAPTER I. THE GENERAL CONCEPT OF RIGHTS

The problem of rights cannot be considered independently of its relationship to the structure of political theory as a whole. While it would be clearly undesirable to broaden the scope of this paper by treating other questions at great length, it is nevertheless incumbent upon us to refer cursorily to our reasons for examining this particular problem, and to its relationship to the central questions of political theory--the reconciliation of liberty with authority, and the determination of the ends of the state.

To do otherwise would be to adopt an unnecessarily dogmatic attitude. We cannot arbitrarily set forth a theory of natural rights or a theory of functional rights until we know to what kind of a state we are referring, and the ends that it is to achieve.

When it is declared that the state ought to recognize certain rights, the natural retort is, "Why should it?" The contract school of political philosophers said that the state should recognize certain rights because such recognition was the object which people desired to attain by entering into the contract which established the government. Even though it is very probable that these thinkers did not mean to imply that states actually were formed by members gathering on a great plain to sign the contractual document, the fact that Maine and [*2] others have cogently refuted the historical accuracy of the contract, and the fact that German idealism has caused many thinkers to reject even the "fiction" of the contract, would seem to urge upon us an alternative basis for considering a doctrine of rights.

This basis can be found in the idea of political obligation as such. Without referring to the violation of any "original contract" we may nevertheless reasonably ask ourselves, "Do I have any obligation to obey a state which fails to recognize certain claims on it by...