3. PERSONALITY 23

How shall we arrive at the interests of personality which the law ought to secure? To put it as the question would have been put formerly, How shall we construct a scheme of natural rights of personality? It has been said that the usual method has been to deduce them from the qualities of man in the abstract or from some supposed formula of right and justice. The latter was the method of the nineteenth century. A sketch of what may be taken as a fair example of a nineteenth-century scheme of natural rights will illustrate this method. The scheme in question is to be found in Spencer's Justice. Although it purports to be based upon principles of evolution, it starts from what is essentially Kant's formula of right, taken as a formula of justice,24 and from this formula deduces seven rights.25 Each right is then confirmed by seeking to show that in the evolution of society and of law it has been recognized in continually increasing measure, and that the tendency is to recognize it to the full extent of the principle reached by deduction. Although the terminology is positivist, the mode of procedure is in substance a combination of the metaphysical and the historical methods as theretofore employed. First the right is deduced from the principle. The scheme of rights is shown to be a logical development of the formula of justice. Then it is shown that the rights recognized among civilized peoples represent an unfolding of the same principle in the same way in human experience. Considering simply the philosophical side, the scheme of seven natural rights is as follows:

(1) The right to physical integrity. Spencer deduces this from his definition of justice in this way: If the actions of one person are carried so far as directly to inflict physical injury upon another, they go beyond the limitation of his liberty by the like

23 Gareis, Science of Law (Kocourek's trans.), 122-135; Adler, Die Persönlichkeitsrechte im allgemeinen bürgerlichen Gesetzbuch, Festschrift zur Jahrhundertsfeier des allgemeinen bürgerlichen Gesetzbuches; Geyer, Geschichte und System der Rechtsphilosophie, 137-142; Stahl, Philosophie des Rechts, 5 ed., 312-350. 24 See Maitland, Collected Essays, II, 274-284; Spencer, Justice, app. A.

25 Spencer, Justice, chs. 9-18. I have abridged the scheme somewhat by putting the ten rights which Spencer enumerates into seven, without, however, altering the substance, as he himself states that some of the rights he discusses are but phases of others.

liberties of all; they are, therefore, unjust and may be the subject of legal interference. It should be noted that in his view this interference with the individual has to be justified because it is interference with a fundamental natural right. It is held to be justified in this case by consideration of the like natural rights of other individuals. In this way Spencer deduces the natural right of each individual to have his physical integrity respected by his fellows.

(2) The right to free motion and locomotion, or, as it is usually called by writers on the common law, the right of personal liberty. Here, it is said, an obvious deduction from the formula of justice, -"the liberty of each limited only by the like liberties of all," — requires that each individual be at liberty to make free use of his limbs and to move about freely from place to place, except as by such conduct he interferes with like action on the part of his fellow men or with some other natural right of his fellow men.

(3) The right to the use of natural media. This is deduced as follows: If one individual interferes with the relations of another to the physical environment upon which the latter's life depends, he infringes the like liberties of others by which his own are measured. This so-called natural right to the use of natural media is a curious example of the extreme individualism of nineteenthcentury philosophical jurisprudence. It is true that in all systems of law some things are held to be incapable of ownership by individuals. It is usually said of such things in the law books that they are "common to all mankind" and that their appropriation by individuals is forbidden by natural law. Thus, the Institutes of Justinian say:

"By the law of nature . . . the following things are common to all men: air, running water, the sea, and consequently the shore of the sea." 26

Again, an eighteenth-century writer says:

"Some things are by nature incapable of appropriation, so that they cannot be brought under the power of any one. These got the name of res communes by the Roman law and were defined things the property of which belongs to no person but the use to all. Thus the light, the air, running water, and so forth are so adapted to the common use

26 Inst. II, 1, § I

of mankind that no individual can acquire a property in them or deprive others of their use." 27

It will be observed that down to the nineteenth century, jurists had said that natural law decreed a common interest in natural media and forbade any separate individual interest. Here, however, we find a philosopher in the nineteenth century insisting on an individual natural right to the use of these media which precludes individual ownership. It is interesting to note that recently a third doctrine has grown up, namely, that there is a public interest in these natural media so that they are not res communes but res publicæ.28 Perhaps nothing could illustrate more clearly the purely personal character of all such schemes of natural rights.2

29

(4) The right of property. The mode in which this is deduced must be considered more fully elsewhere.30 Under this right

27 Erskine, Institute of the Law of Scotland, I, 146. 28 See the statutes in Wiel, Water Rights, 3 ed., I, §§ 6, 120; Ex parte Bailey, 155 Cal. 472, 101 Pac. 401 (1909); Geer v. Connecticut, 161 U. S. 519 (1896).

29 Thus: "No court would hesitate to declare void a statute which enacted that A. and B., who were husband and wife to each other, should be so no longer, but that A. should thereafter be the husband of C. and B. the wife of D." Miller, J., in Loan Ass'n v. Topeka, 20 Wall. 655, 662 (1874). But Lord Holt, who agreed that there are limitations on legislative authority imposed by natural law says that parliament "may make the wife of A. to be the wife of B." City of London v. Wood, 12 Mod. 669 (1692). Mr. Justice Miller wrote when legislative divorce had become obsolete almost everywhere. In Lord Holt's time a divorce a vinculo could be had only in parliament. See also the statement of Curtis, J., in Scott v. Sandford, 19 How. (U. S.) 393, 626 (1856), that "all writers” agree that slavery "is created only by municipal law." But Aristotle (Politics, bk. I, ch. 5), Grotius (II, 5, 27, § 2 and 29, § 2), and Rutherforth (Natural Law, bk. I, ch. 20, § 4), who are not insignificant authorities, argue that slavery has a natural basis in some cases beyond and apart from law. Again, in Wynhamer v. People, supra, 454, Hubbard, J., said: "Liquor is not a nuisance per se, nor can it be made so by a simple legislative declaration." Since that time people have changed their minds, and we find another judge saying: "The entire scheme of prohibition as embodied in the Constitution and laws of Kansas might fail, if the right of each citizen to manufacture intoxicating liquors for his own use or as a beverage were recognized. Such a right does not inhere in citizenship.” Harlan, J., in Mugler v. Kansas, 123 U. S. 623 (1887).

"We think that, aside from the positive law, there exist only the opinions of authors, which respond more or less to the needs of society." Antoine, Introduction to Fiore, Nouveau droit international public, ii. Cf. Bentham, Principles of Morals and Legislation, 17, n. 1.

30 See Ely, Property and Contract in their Relation to the Distribution of Wealth, ch. 22.

Spencer includes (a) tangible or corporeal property; (b) incorporeal property, under which, curiously enough, he includes reputation as the result of a man's good conduct, along with patent and copyright; and (c) the right of gift and bequest, which he regards as consequences of complete ownership. The inclusion of reputation under incorporeal property appears to illustrate the effect of propinquity upon philosophical ideas. For it must be admitted that for many purposes English law does base its law of defamation on an interest of substance rather than on an interest of personality. The basis of the "right of bequest" or testamentary disposition must also be considered more fully elsewhere.31

(5) The right of free exchange and free contract. This is deduced as a sort of freedom of economic motion and locomotion in the same manner as the right of physical motion and loco

motion.

(6) The right of free industry. This is said to be a modern outgrowth of the right of free motion and locomotion, being, as it were, a right of economic motion and locomotion.

(7) The right of free belief and opinion. This also is said to be a modern development of the right of free motion and locomotion. It is deduced as a right of free mental motion, a right of exercising complete freedom in one's mental movements so far as like freedom on the part of others is not affected thereby. Two phases of this right are treated as two separate rights, namely, freedom of religious belief and opinion and freedom of political belief and opinion.

If we reject the mode of determining individual natural rights illustrated by the foregoing scheme, as I think we must, how are we to define the individual interests which the law ought to secure? The pragmatist would answer that we should take for our starting point the proposition of William James which I have discussed elsewhere in this connection,32 namely, that all demands which the individual may make are to be met so far as they are not outweighed by other demands of (a) other individuals, (b) the organized public, (c) society. The principles by which we are to 31 See Ely, Property and Contract in their Relation to the Distribution of Wealth, ch. 17.

32 The Philosophy of Law in America, Archiv für Rechts- und Wirthschaftsphilosophie, VII, 213; Legislation as a Social Function, 18 American Journal of Sociology 755.

determine how far they are so outweighed must be considered elsewhere.33 Some have preferred to say that all "reasonable demands" are to be met so far as possible.34 Reason requires limitation of the demands of each with reference to those of others and of all, and sometimes, it may be, limitation of the demands of society with reference to those of individuals. But why? Because all cannot be satisfied. If our aim is to satisfy all so far as we can, then reason is employed in the selection of those which we will satisfy and of the limits within which we shall satisfy them. Accordingly the first task is simply to ascertain what demands the individual conceivably may make as incident to personality. It will be convenient to take these up under three heads, namely, the physical person, honor (reputation), and belief and opinion.

4. THE PHYSICAL PERSON 35

Inviolability of the physical person is universally put first among the demands which the individual may make. This interest, called by Paulsen the interest in body and life,36 includes the socalled natural rights of physical integrity and of personal liberty or, as Spencer styles it, free motion and locomotion. Passing for the moment all consideration of the limits within which this interest must be confined when recognized, three questions may be taken up: (1) What is the extent of the interest as an individual interest; that is, what may the individual demand in this connection which, therefore, the law is to secure so far as may be? (2) How far has this interest been recognized by legal systems in the past and how has legal recognition of this interest developed? (3) How far is this interest protected by law to-day?

We may conceive the interest in the physical person as cover

* See my paper, Legislation as a Social Function, 18 American Journal of Sociology 755.

34 Centralization and the Law, 154. See Willoughby, Social Justice, 20 ff.

35 Green, Principles of Political Obligation, §§ 148-151; Wigmore, Summary of the Principles of Torts (Cases on Torts, II, app. A), §§ 12-26; Miller, Philosophy of Law, lect. XI; Amos, Systematic view of the Science of Jurisprudence, 287-297; Post, Ethnologische Jurisprudenz, II, § 102; Blackstone, Commentaries, II, 119–138. I am indebted to Professor E. R. Thayer for assistance and for many suggestions in connection with this section.

36 Ethics (Thilly's trans.), 633.