formal principle of rightness, viz., a desire to do right because it is right. This view pushed to its logical conclusion makes the positive content of morality unimportant. I may commit murder or suicide from a desire to do right as such; and my act will be not only praiseworthy but right. On the other hand I may relieve the miserable and comfort the afflicted, and my act be of no higher moral worth than the act of the burglar and the hired assassin. But these conclusions are revolting to common sense as well as moral feeling. We cannot help assuming a certain objectivity in our moral ideas, as well as in our æsthetic ideas. The music of the savages who beat tom-toms gives them as much pleasure as a symphony of Beethoven gives us, and much more than such a symphony would give them; but we do not allow that the two performances are equally beautiful, or even equally pleasurable. We are obliged to allow that pleasure is the main determining factor in our judgment of æsthetic effects. But we refuse to allow that the pleasure of the savage is of equal æsthetic validity with our own. In the same way, we allow that moral effort is of primary importance in the production of a really moral act; but we do not allow that every act which is done from a pure sense of duty is equally good and right. We cannot help assuming that there is some objective standard. A king of Dahomey, who, actuated by a conscious desire to act justly and properly, tortures to death the requisite number of victims on the grave of his predecessor, is no doubt, from the subjective

E

of

and formal point of view, superior to a king who from mere laziness fails to do so. But we cannot bring ourselves to leave out of account the " content the act; and to put this case on the same level as if the matter in which he excelled had been the erection of a hospital to assist the injured and suffering.

§ 3. Rights.

The word right is used substantively as well as adjectivally. A right is a legal, or quasi-legal, term, correlative to an obligation. A right to do this vested in me, is simply an obligation on the part of others not to interfere with me while I do it. This right, and the correlative obligation, are the creation of law, and imply the existence of law. If we extend the idea of law into the realm of ethics, and look at moral truths under the aspect of laws, we may metaphorically speak of a moral right and a moral obligation.1

A

The legal and the ethical sense have not been kept apart, and have reacted on each other. Writers have not sufficiently realized that such terms as "natural rights" have a purely metaphorical meaning. right is a creation of law, and has no meaning apart from law. But by a natural extension of meaning it connotes a liberty which is the correlative of some obligation not actually imposed by law, but supposed to be imposed by God's law, i.e., the metaphysical God of ideal morality.

1 See Austin, "Lect. on Jurisprudence," vol. i., p. 354; also p. 293, note. See Raleigh's "Elementary Politics," pp. 68, seq.

The natural rights are those supposed to be conferred apart from and prior to any actual human law, i.e., those belonging to man as man. This of course carries us back to the theories of the Greek philosophers and Roman lawyers which still maintain a halfvitalized sort of existence in the minds of plain men.1

Such rights and obligations are said to be imperfect, because they cannot be enforced judicially. Strictly speaking they are not rights at all, in the sense in which legal rights are such. They are not "conferred by commands issuing from the sovereign." But the metaphorical use, understood as such, is a very convenient one, and may very properly be retained.

Yet we must be careful to remember that a natural right is something very different from a legal right. What the ideal law of nature orders cannot be determined precisely, because there is no such thing as a law of nature in this sense of the term. It means such a law as would exist in an ideal society, where everybody did his duty, and where actual law was not obliged to limp a long way after morality. A natural right to property or to freedom is an ethical or political fiction.

§ 4. Jus Naturale.

By Natural Law or Law of Nature in the ethical or quasi-legal sense we mean something quite different from a scientific law. A law of nature in the scientific

sense is a highly general uniformity which has been observed to occur among phenomena; e.g., the law of gravitation. The only link of meaning between such laws and political laws lies (1) in their generality— they apply to everything of the same kind—and (2) in the implicit assumption that they are given as commands by the Creator. This latter suggestion is obviously extremely inaccurate; since matter is not intelligent and self-directive and cannot in any exact sense be said to obey, or even to receive commands. The relation between God and the created universe can only by the roughest figurative language be likened to the relation between a sovereign law-giver and his subjects.

The Stoics, whose teaching approached more nearly that of the early church than did the teaching of any other philosophical sect then existing, taught a sort of pantheism. The energy which lies behind phenomena is God; in a very real sense the world is a manifestation of God. Each of us is a part of this ordered universe, and to live according to nature meant to live in agreement with the nature of God as exhibited in the external universe and in the mind of man. The Roman moralists were nearly all Stoics, and Stoical elements. were worked into the tissue of the new Roman law.1 The magistrates who had been forming a working code for intercourse between Roman citizens and foreigners by selecting the rules of law common to Rome and to

1 Maine, "Ancient Law," chap. iii. See below, chap. v., § 8.

the different Italian communities, called it the jus gentium. "The jus naturale is simply the jus gentium seen in the light of a particular theory," viz., the Stoic theory of the divine origin of nature and of law. "After Nature had become a household word in the mouths of the Romans, the belief gradually prevailed among the Roman lawyers that the old Jus Gentium was in fact the lost code of Nature, and that the Prætor in framing an edictal jurisprudence on the principles of the Jus Gentium was gradually restoring a type from which law had only departed to deteriorate." This conception of an ideal law, antecedent and superior to the positive law, universally valid and binding on everybody even when free from the restrictions of positive law, has given us the great system of Roman Law, the modern codes built on it, and the system of International Law; and it is the basis of the ethical intuitionism of Butler and Kant, and of the revolutionary morality of Rousseau. To Rousseau, again, may be traced the crude political theories of modern democracy. The doctrine of the "rights of man" given and guaranteed by Nature is the central dogma of Liberalism.

§ 5. Obligation.

The idea of obligation involves the subjection of our wills to a law. It further suggests that there is some possible conflict between our motives, though this is no necessary part of the meaning.

The jurisprudential school of utilitarians, such as