Freeman

ARTICLE

On the Origin and Character of Rights

MARCH 01, 1981 by WILLIAM BLACKSTONE

Sir William Blackstone [1723-1780], born in Cheapside, England, trained in the law, taught, practiced law, and served for many years as a Member of Parliament. His four-volume Commentaries became the most famous exposition of English law. Had he designed to do so, he could not have timed its publication for greater impact on America. Published in the 1760s, it served Americans not only in its statement of the natural law doctrine with which to challenge English control but also for many years after the Revolution as the main authority on the common law. Selection extracted from Commentaries on the Laws of England, vol. I (Philadelphia: J. B. Lippincott, 1891), pp. 122-26.

By the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it . . . . Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

For the principal aim of society is to protect in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows that the first and primary end of human law is to maintain and regulate these absolute rights of individuals . . . .

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will.

But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. for no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to the individuals in any of enjoyments of life.

Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick. Hence we may collect [conclude] that the law, which re strains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny; nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty; whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our generalfreedom in others of more importance; by supporting that state, of society, which alone can secure our independence . . . .

So that laws when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr. Locke has well observed) where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

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March 1981

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