Rights Natural, Relative, and Social

“It appears… that there is a closer coincidence between those rights which have been denominated natural, civil, and political, than writers on law and government have generally been disposed to allow… That man, on entering into civil society sacrifices a part of his natural liberty, has been very generally asserted, or taken for granted… This notion of sacrifice must have been adopted from a very indefinite and, indeed, very absurd notion of natural liberty…”

-Nathaniel Chipman, Sketches of Principles of Government: A Treatise on Free Institutions (1833).

I spent the better part of my Saturday listening to the Hillsdale course on “The Real American Founding” with David Azerrad and Tom West, immediately on the heels of watching Azerrad on Tucker Carlson Today. Both are well worth your while. I found much to agree with, and some things, to be sure, to disagree with, in both instances. At one point, West provides his favorite “second tier” founders, Theophilus Parsons and Zephaniah Swift. A noble selection, though I would take issue with the label “second tier,” as West himself might—I am not sure. This, primarily, because I do not think the standard of “influence” at during the founding period has been sufficiently delineated. That is to say, I do not think any living historian has demonstrated that they have sufficiently entered the political milieu of the period to discern who was actually influential at the time. This is, admittedly, a very difficult thing to apprehend and more difficult still to show.

That said, I wholeheartedly endorse West’s platforming of Parsons and Swift, specifically the latter, for reasons I will briefly outline.

For his part, Swift (1759-1823) was, in my view, a preeminent jurist of the period—along with James Wilson, Joseph Story, William Cushing, and Nathaniel Chipman, to whom I will shortly return. (Cushing might be the most scandalously neglected.) He served in the Connecticut General Assembly, the national House, and Connecticut’s Supreme Court and was a delegate to the Harford Convention that transitioned, for better or worse, his state from its colonial charter to a new constitution. Relevant to our purposes, he published the first legal text in America, a commentary on the laws of Connecticut. (It’s readily available online.)

Listening to West and Azerrad, who both maintain a more absolute or concrete definition of “rights” vis a vis the “founding” than myself, I recalled a passage from Swift in his commentary.

Having discussed at some length the formation of civil society—a typical exercise—Swift recognizes the sociability of man insofar as his “happiness” depends upon his “connexion [sic] and union with [his] fellow creatures.” It is not good that man should be alone. Such that, “We must eradicate from the human heart, the desire of happiness before man will cease to adhere to the community.” Autonoumous individualism’s hardest hit, as they say on twitter dot com.

What of “rights,” then?

Swift points out that some “political writers” entertain the idea that when men enter a “state of society,” thereby departing a “state of nature,” they sacrifice either in part or in full their “natural rights” in order to gain protection or security. Swift is dissatisfied with this explanation. As a corrective, he appeals to Nathaniel Chipman’s (1752-1843) alternative featured in his Principles of Government.

Chipman is as underappreciated as Swift. He served in the Continental Army after graduating from yale, was an architect of Vermont’s statehood, and was Washington’s appointee to the federal District Court there. Thereafter he was a professor at Middlebury College and was chief justice of Vermont’s state supreme court. He resigned from all offices in 1793 to write the book referenced by Swift.

In Swift’s System, he refers to Chipman as “a late writer on government whose talents command our respect, and whose exertions to communicate just sentiments respecting government, merit our approbation.” Quite laudatory remarks.

The quote in focus from Chipman insists that,

“the rights of man are relative to his social nature, and that they exist only in coincidence with the rights of the whole, in a well ordered state of society, and civil government.”

(This is from the end of Chipman’s first chapter.) Swift summarizes the import of Chipman’s opinion as “that man makes no sacrifice when he enters into the social state, and that it is congenial to his nature.” (Chipman claims that Montesquieu is on his side.)

To return to and complete the introductory quote (from Chipman),

“For a moral being to forbear the performance of any action, that is forbidden by the laws of moral and social nature, can never be deemed a sacrifice, and is no more a duty in civil society than out of it.”

Chipman is drawing attention to the fact that strict state of nature theorists, if you will, maintained that in the hypothetical pre-societal state, man was still bound by the law of nature (i.e., pre-positive, human law).

The logic here is simple. If man in a pre-societal state is bound by the law of nature, and if his nature indicates that he is sociable, “gregarious,” and bound for society, then the law of nature indicates that there is no scenario wherein man has non-social “rights.” In other words, man’s natural rights are always cognizant of and conditioned by his sociability (ingrained in his nature) such that “man, sociable by the laws of his nature, has no right to pursue his own interest or happiness, to the exclusion of that of his fellow men.” This because of “reciprocal relations of social beings,” and “this is the true principle of all commerce amongst men.”

The “so called” state of nature is a fantasy, only useful for determining the nature of rights in context vis a vis authority. God created man to live with others and, therefore, he has no cognizable existence in isolation, apart from others. And so, his “rights” must always be considered not in the absolute, isolated sense, but in terms of his corresponding social duties because he is, indeed a political, social animal. In a sense, there is no non-or-pre-political human existence such that there are no pre-political “rights.”

And so “rights” are only ascertainable in a concrete political context, which is not to imply that man qua man (as described above) has no natural immunities from tyranny. Hence, Commonwealth v. Alger, the 1851 Massachusetts case which held that rights of property, “like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment” as shall prevent them from being “injurious” to the common good. (This will be most offensive to libertarians and other rights absolutists.)

Men do not “sacrifice” but rather fulfill their nature by coalescing with others; that’s the point. Insofar as the natural law comprehends true anthropology it cannot contradict man’s socio-political orientation and, therefore, cannot provide him non-social, purely individualistic rights. This is not to deny the individual as such, but rather to situate him within the proper context of his nature and telos. Nor is this post intended to comment on the proper and lawful scope of government action.