Justice Secured?
Natural Rights as the Source
of Just Socio-Political Arrangements
PART ONE
Edward J. Dodson
[An Examination of the Principles Underlying the Founding of the
American Republic and System of Representative Government / 1994]
PART 1: The Makings of a Just Society
Citizens of the newly-formed United States(1)
of America found themselves with an opportunity unique in
the history of mankind to essentially restructure an entire system
of positive law and, by definition, steer a course very different
from that of any society before or since. An appropriate question,
then, is just how close the early statesmen and public officials --
in concert with the general citizenry -- came to creating a society
the laws of which meet an objective test of justice. If it can be
shown that the nation's initial body of positive law was based on
just principles, it then remains for us to evaluate subsequent
changes to that system measured against the original standard. In so
doing, we are then able to explore the areas where the
socio-political system structurally advanced or thwarted the
principles of justice and the effects this has had on the
development of the nation.
For such an analysis to yield important insights, however, one
must be able to objectively identify a just standard of
socio-political arrangements against which to evaluate the
accomplishments of our forefathers. This effort requires the
application of reason, a reliance on our moral sense of right and
wrong, as well as a scientific study of human behavior. History
records that those involved in our nation's founding and the framing
of our government not only provided the moral and political sparks
in resistance to external domination but also gave considerable
thought to the principles on which self-government ought to be
based. They often acted instinctively in the acceptance or rejection
of certain socio-political arrangements, engaged in prolonged
discussion and compromise and looked for guidance to both principle
and tradition.
From the beginning of European colonization, the experience of
life in North America under British rule was quite unique. Although
subjects of the crown, the colonials were for long periods very much
isolated from the long arm of central authority. Many of the
earliest communities were organized under communitarian principles
of voluntary association. Rules of conduct might be strict and
toleration of freedoms of conscience or action minimal, but the
sense of oneness with each other had far more in common with
indigenous tribal groups than with Old World societies. The gradual
increase in population, particularly where this occurred by the
arrival of people of different ethnic, religious or cultural
heritages, placed as great deal of stress on these established
communities. Moreover, as population increased and the land yielded
sufficient production to support a lively exchange, a propertied
class emerged in each colony consisting of a small number of
landowning families. These same families dominated local governing
bodies. Many sent their sons home to Britain or to the
European continent for their formal education. Over time, the
colonial elite also helped to found colleges on the American
continent.
Another important distinction between Britain and its North
American colonials was the birth of religious pluralism. In the
practice of religion more than in any other socio-political dynamic,
the independence from government intrusion over several generations
fostered an ingrained respect for freedom of conscience as a
fundamental human right. As a consequence, many of those who would
eventually assume leading roles in the struggle for independence
from Britain combined the very real experience of self-government
with a socio-political philosophy that began to champion the rights
of the individual. From the writings of Hobbes, Locke, Harrington,
Turgot, Smith, Rousseau and others, the colonial elite acquired a
philosophical frame of reference against which they compared their
experiences of building a new society out of a virgin frontier. The
result was an increasingly outspoken commitment to individualistic
values. A dialogue spread throughout the colonies on the legitimacy
and merits of self-government, on the constitutional basis for civil
rights and, finally, on the nature of the colonials' relationship
with the British crown.
After the defeat of French forces in North America, Britain's
conservative leaders decided it was time to levy taxes on the
colonials in proportion to the cost of their defense. Debate raged
on both sides of the Atlantic over the rights of the Crown and
Parliament to not only tax the colonials but to legislate for them
as well. Although these debates became increasingly emotional and
clouded (on both sides) by vested interest and a defense of the
status quo, the use of printed circulars and the press by all
factions attracted widespread citizen interest and involvement.
Leading spokespersons in the colonies and in Britain traded
arguments and exposed one another's views to challenges on the basis
of fundamental principles attached to the rights of the individual
in society. Many were well practiced in the art of rhetoric and used
their talents to maximum advantage.
As events moved toward conflict and then crisis, history was
repeated, as those who challenged the authority of the British
constitution were condemned as radicals by those most
threatened in Britain. Within the colonies, the debate soon moved
well beyond concerns over British policies; with the talk of
independence also came a prolonged debate over what form of
government ought to be constituted once the colonies were free of
the empire.
This was not an endeavor undertaken without serious personal risk
to those involved. Men of radical ideas in both the New and
Old Worlds lived under threat that the police powers of the State
might be invoked against them should their writings or activities
too seriously attack those in power. Freedom of expression was not a
right protected by government. Although this right remains
incompletely defined and imperfectly secured (even with the world's
social-democracies), a determined resistance to oppression by a
significant transnational community has made possible the open
search for truth without having to be fearful of what objective
investigation and the application of reason might yield. In this
sense, freedom of expression presents the greatest challenge to
entrenched privilege and oppression available to those dedicated to
constructing just socio-political arrangements and institutions.
Where a society's socio-political arrangements and institutions
are the subject of investigation, the challenge for social
scientists is to identify an objective set of principles by which to
measure the character of any society as just or unjust. And, as all
societies are comprised of individuals formed into various
sub-groups, these first principles are established by
defining which actions taken by the individual fall legitimately
within the constraints of justice, and which exceed those
constraints. From this perspective, we must identify what
responsibilities, if any, we have to one another as members of the
same society and species.
OUR MORAL SENSE
To a very large extent, we are directed by what is a combination
of an instinctive and nurtured moral sense of right and
wrong where issues of justice are concerned. Such general feelings
are made more concrete by reason and an objective evaluation of the
consequences of various types of behavior. Common to our actions is
the instinctive connection made between cooperation and survival.
Infants survive and reach maturity, for example, only when
adequately nurtured and protected. There is, in this relationship of
dependency, a responsibility imposed by nature on the competent
members of the group to nurture and protect those who are
incompetent. Cooperation is, in this way, directly connected to the
long-term survival of the group. Behavior that diminishes the
prospects for survival of the individual is, at best, unwise, and,
in circumstances that affect anyone other than the acting
individual, unjust. From this observation there arises a clear
societal responsibility to impose constraints on individual behavior
that threatens others. To guide us more specifically, informal and
formal codes have evolved that distinguish sanctioned behavior from
what reason and our moral sense reveal to be violations of that
which is just.
Philosophers have long dwelled on the questions of justice raised
by the formation of hierarchical leadership structures in virtually
every society. For the most part, however, philosophers from
antiquity on expended most of their effort in rationalizing and
defending socio-political arrangements constructed to advance the
survival of the few at the expense of the many. We can trace our
modern concern for linking the rights of individuals within society
to our natural rights as members of the same species to the
ground breaking work of John Locke, who attempted to distinguish
between the actions of man that were inherently just (and, thereby,
within the scope of liberty) and those which were not (and,
thereby, within the scope of license). A small and rather
elite group of philosophers and political activists of the
eighteenth century then employed themselves in the formation of a
new, practical philosophy that debated in great depth the rights and
duties of the individual in a society organized for the protection
of such rights. In North America, we celebrate the contributions of
Benjamin Franklin, John Adams, Thomas Jefferson, Thomas Paine,
Alexander Hamilton and a cadre of other original thinkers who
dominated the last half of the eighteenth century. Across the
Atlantic the dialogue was carried forward by the likes of Smith,
Turgot, Du Pont de Nemours, and Rousseau. Although there have been
many important contributions made by others along the way, there is
one individual, in particular, who has provided us with a valuable
synthesis of the principles that reason and scientific investigation
have yielded. That person is philosopher Mortimer J. Adler.
One of Adler's great contributions to socio-political thought is
his refinement of the Lockeian treatment of natural rights. In
response to those who have taken the more extreme (i.e.,
anarchistic) stand in defense of individual freedom, Adler counters
that "[u]nlimited freedom -- freedom unrestrained by
justice -- cannot be maximized for all."(2) Therein lies
the inherent injustice of unlimited freedom and, conversely, the
need for government as a vehicle for assigning to those employed by
the nation the means with which to secure justice and protect
liberty. Our legitimate concern is with liberty, which can only be
achieved, writes Adler, "within the framework of the de
jure state and government,"(3) which by definition means
that "government must itself be rectified of all of the
injustices that it has so far historically exhibited and must become
perfectly or completely just."(4) Application of the
principle upon which justice is based requires, however, a clear
understanding of what distinguishes liberty from license:
Liberty is freedom exercised under the restraints of justice so
that its exercise results in injury to no one. In contrast license
is freedom exempt from the restraints of justice and, therefore,
injurious to others in infringing their freedom as well as violating
other rights.(5)
The "other rights" Adler alludes to are what we
generally include in the list of natural or human rights. The source
of these rights is our "common humanity;" that is,
our sharing of the "same species-specific powers or
properties."(6) Although our abilities and attributes as
individuals might differ by degree, we are of the same kind (i.e.,
species). By virtue thereof, we are also possessed of the same
rights within the society of mankind. These are principles that
transcend time and place and cannot be set aside even by an absolute
majority guided by democratic institutions.
Government is necessary because individuals (alone or
collectively) tend to exercise license in their behavior at the
expense of the human rights of others. Where reason and our moral
sense tell us that certain types of actions (e.g., murder, rape,
assault, destruction or theft of property) are inherently unjust,
the individual must be constrained from exercising such license or,
in a manner determined by consensus, penalized upon discovery. These
are the responsibilities to be carried out by de jure
government. Where the State sanctions license, the body of positive
law permitting such actions to occur is inconsistent with just
principles and must be amended or replaced.
LICENSE JUXTAPOSED AGAINST LIBERTY
What has proven difficult for even those of us directed by the
best of intentions is distinguishing clearly between liberty and
license under positive law. An effort to reach universal agreement
on the identification of privileges has not been systematically
pursued. By virtue of the colonial rebellion against Britain, the
system of hereditary privilege associated with monarchy and
aristocracy was denounced and discarded. In Common Sense and
The Rights Of Man, Thomas Paine moved into the vanguard of
transnational thought by vigorously attacking the vested interests
that for so long had denied mankind the benefits of representative
government subject to the constraints of a written constitution.
More than this, however, he attacked as privilege, as license, the
system of titleholdings in nature that permitted the landowning
class to confiscate as rent an ever larger share of production while
evicting millions of peasant farmers from the land in order to raise
sheep and cattle. Paine saw this as an Old World injustice and did
not, for the same reasons as Jefferson, envision similar
consequences eventually arising in North America. Very few
constitutional scholars, legal theorists, socio-political
philosophers or social scientists of the nineteenth or twentieth
centuries have recognized as did Paine that titleholdings in nature
are, indeed, privileges that yield to the recipient an undeserved
economic benefit.
When a landless (and, propertyless) class finally appeared and
grew in North America, the circumstances seemed on the surface to be
quite different from those of the Old World. A written constitution
and representative form of government safeguarded what most citizens
of the eighteenth century had understood to be the essential
elements of liberty. Only as the nineteenth century progressed did
it become evident that these institutions were unable to prevent the
concentrated control of the nation's land and natural resources.
Jefferson's hope for a society dominated by yeoman farmers was
disappearing, and even he eventually recognized the benefits of
encouraging manufacturing and commerce. What his generation did not
anticipate was the rapid pace of change from an agrarian to an
industrially-centered and urban-dominated society. The nineteenth
century was also characterized by a rapid increase in population and
settlement of the continent under a system of positive law that not
merely sanctioned but encouraged distribution of the public domain
(i.e., our common birthright) to a small number of corporations and
individuals. Natural resources were not consumed; they were
devoured. Millions of acres of land and control over the natural
resources they contained were, in practical terms, fenced off and
the majority of the population required to pay the titleholders for
access, or were denied access altogether.
The one individual who, more than any other, then brought renewed
attention to the injustice associated with the nation's land tenure
system, was the newspaper editor, social reformer and political
economist, Henry George.
HENRY GEORGE AND THE TWILIGHT OF POLITICAL ECONOMY
What Henry George brought to the transnational quest for justice
in our socio-political arrangements and institutions was the
combination of an inquiring mind and the experience of trying to
earn a living in a land of supposed unparalleled opportunity, but
where millions of people suffered from an inability to find
employment for their labor. Like Paine, George attacked
institutionalized privilege on both practical and philosophical
grounds. He used the power of the press to push for reforms and
acquired the analytical skills of the political economist to present
his findings in a scientific framework. More than this, however, he
pushed his adopted scientific discipline to new heights of
explanation and prediction.
What George discovered and attempted to prove is that the
operation of markets is a driven by human behavior. Socio-political
arrangements and institutions (i.e., systems of positive law and the
operation of government) are externalities to the fundamental ways
in which individuals interact. George learned from his study of
history and from observation that at the very foundation of human
behavior is an important constant; namely, that man seeks to
satisfy desires with the least exertion. In effect, this
constant serves as a first principle upon which to build the study
of human behavior and social organization. History and observation
also reveal a tendency in man to be monopolistic under conditions of
unlimited freedom. Reason, then, directs society -- through
government -- to institute protections against monopolistic
behavior.
Paine, more than any other writer of his era, had argued on the
basis of reason that among the equal rights of man, the right of
access to the earth was paramount to survival. Positive law that
sanctioned individual titleholdings in nature involved, therefore,
creation of an unnatural form of property in nature. The remedy he
offered was rough in design and went largely unnoticed by a
population of yeoman farmers secure in their own property. Only
after the War Between The States and the final settlement of the
frontier did Henry George and other concerned participants see the
connection between land monopoly and mass poverty. For George, the
evidence of present everywhere he traveled. Rapid population growth
and the virtual consumption of the frontier had brought on the very
conditions the founding fathers thought would take hundreds of years
to appear. What made Henry George memorable as an historical figure
was not merely his keen insights but his remarkable success in
stimulating a populist movement the objective of which was to
eliminate the causes of the nations' social and economic problems
while retaining the Constitution's legitimate protections of
individual liberty. George's message was inflammatory but not
anarchistic. He began as a voice in the wilderness, but others
listened as he called out a warning in the name of liberty and
republican democracy:
[A]bsolute political equality does not in itself prevent the
tendency to inequality involved in the private ownership of land;
and it is further evident that political equality, coexisting with
an increasing tendency to the unequal distribution of wealth, must
ultimately beget either the despotism of organized tyranny or the
worse despotism of anarchy.(7)
And, as did Paine, George concluded that justice could be served
by requiring titleholders to compensate the rest of society for this
privilege by paying a ground rent. Paine's insights were largely
instinctive. George had the benefit of David Ricardo's theoretical
work and used this to build an exchange theory of value that told
society just how much rent to collect. With this refinement to the
human rights doctrine presented by Mortimer Adler, we come to the
foundation of justice on which the socio-political arrangements and
institutions of eighteenth century European-Americans can be judged.
What this foundation directs us to reason is:
- That we are all equal in our humanness; and, therefore, we
possess rights necessarily associated with a truly human
existence;
- That the earth is essential as the source of goods necessary
for such an existence; and, therefore, each individual has an
equal right to access the earth and all that nature freely
provides;
- That liberty is the exercise of one's legitimate human
rights, by definition the act of which in no way infringes upon
the liberty of others;
- That license is the resort to action which restricts
the liberty of others; and, therefore, requires some type of
corrective action on the part of the State in order to preserve
justice;
- That there are two primary categories of license, the first of
which is sanctioned by positive law and creates unnatural property
(primarily, private appropriation of the value of nature but also
monopolistic sanctions granted in production and commerce); the
second of which violates moral and ethical standards of individual
behavior and must be prevented or penalized; and
- That positive (i.e., manmade) law meets the test of justice the
extent to which it is consistent with the principles of protecting
the individual's natural rights as described above and preventing
the unbridled exercise of license.
