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CHAPTER II: Of the Nature of Rights, and Their Several Divisions. - Francis Hutcheson, Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy [1747]

Edition used:

Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy, edited and with an Introduction by Luigi Turco (Indianapolis: Liberty Fund, 2007).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER II

Of the Nature of Rights, and Their Several Divisions.

I. Since it is manifestly necessary to the common interest of all that large numbers of men should be joined together in amicable societies, and as this is the sum of all our duties toward men that we promote their happiness {as we have opportunity}; it must follow that all actions by which any one procures to himself or his friends any advantage, while he obstructs no advantage of others, must be lawful: since he who profits one part without hurting any other plainly profits the whole. Now since there are many enjoyments and advantages naturally desired by all, which <in safe circumstances> one may procure to himself, his family or friends, without hurting others, and which ’tis plainly the interest of society that each one should be allowed to procure, without any obstruction from others, (since otherways no friendly, peaceable society could be maintained:) [since it is relevant to the preservation of a friendly society as well as to the happiness of individuals] we therefor deem that each man has a right to procure and obtain {for himself or his friends} such advantages and enjoyments; which Right is plainly established and secured to him by the second general precept above mentioned, enjoining and confirming whatever tends to the general good of all, or to the good of any part without detriment to the rest. In all such cases therefor men are said to act according to their right.1 And then, as the several offices due to others are <also> recommended to us by the sense of our own hearts [by our higher senses]; so others in a social life have a claim to them, and both desire, and naturally or justly expect them from us, as some way due to them: in consequence of this it must appear, that the several rules of duty, or special laws of nature [or laws of nature called special], <or natural jurisprudence>, cannot be delivered in a more easy manner than by considering all the several claims or rights competent either to individuals, to societies, or to mankind in general as a great body or society; all which are the matter of [deemed granted by] some special laws.

The several rights of mankind are therefor first made known, by the natural feelings of their hearts, and their natural desires, pursuing such things as tend to the good of each individual or those dependent on him: and recommending to all certain virtuous offices. But all such inclinations or desires are to be regulated by right reason, with a view to the general good of all <so that nothing is allowed or claimed against the common interest>.

Thus we have the notion of rights as [This is another notion of right besides the one just explained referred to the collection of laws, usually meaning some] moral qualities, or faculties, granted by the law of nature to certain persons.2 We have already sufficiently explained how these notions of our rights arise from that moral sense of right and wrong, natural to us previous to any consideration of law or command.<* > But when we have ascended to the notion of a {divine} natural law, {requiring whatever tends to the general good, and} containing all these <precepts or> practical dictates of right reason, our definitions of moral qualities may be abridged by referring them to a law; and yet they will be of the same import; if we still remember that the grand aim of the law of nature is the general good of all, and of every part as far as the general interest allows it.

A Right therefor may be defined “a faculty {or claim} established by law to act, or possess, or obtain something from others”; tho’<, as we explained before,> the primary notion of right [is prior to that of a law, nor does it always include a reference to the most extensive interest of the whole of mankind][has a reference to a law granting it or to the common interest coming forth from this right]. For by our natural sense of right and wrong, and our sympathy with others, we immediately approve any persons procuring to himself or his friends any advantages which are not hurtful to others, without any thought either about a law or the general interest of all. For as the general happiness is the result of the happiness of individuals; and God has for the benefit of each individual, and of families, implanted in each one his private appetites and desires, with some tender natural affections in these narrower systems: actions flowing from them are therefor naturally approved, or at least deemed innocent, and that immediately for themselves, unless they should appear hurtful to others, or opposite to some nobler affection. Hence every one is conceived to have a right to act or claim whatever does no hurt to others, and naturally tends to his own advantage, or to that of persons dear to him.

And yet this we must still maintain, that no private right <to act, possess, or demand from others> can hold against the general interest of all. For a regard to the most extensive advantage of the whole system ought to controll and limit all the rights of individuals or of particular societies.

II. Now since a friendly society with others, and a mutual intercourse of offices, and the joint aids of many, are absolutely necessary not only to the pleasure and convenience of human life, but even to the preservation of it; which is so obvious{* } that we need not reason upon it. Whatever appears necessary for preserving an amicable society among men must necessarily be enjoined by the Law of Nature. And in whatever circumstances the maintaining of peace in society requires, that certain actions, possessions, or claims should be left free and undisturbed to any one, he is justly deemed to have a right so to act, possess, or claim from others.3 As some law answers to each right <establishing and enforcing it>, so does an obligation. {This word has two senses,} 1. We are said to be obliged to act, or perform to others, “when the inward sense {and conscience} of each one must approve such action or performance, and must condemn the contrary as vitious and base”: in like manner we conceive an obligation to omit or abstain. This sort of obligation is conceived previous to any thought of the injunction of a law. 2. Obligation is sometimes taken for “a motive of interest superior to all motives on the other side, proposed to induce us to certain actions or performances, or omissions of action.” Such motives indeed must arise from the laws of an omnipotent Being.4 This latter meaning seems chiefly intended in these metaphorical definitions of great authors, who would have all obligation to arise from the law {of a superior},{* } “a bond of right binding us by a necessityof acting or abstaining” or an “absolute necessity imposed upon a man, to act in certain manner.”5

III. Rights according as they are more or less necessary to the preservation of a social life are divided into perfect and imperfect. Perfect rights are of such necessity that a general allowing them to be <disregarded or> violated must entirely destroy all society <and union>: and therefor such rights ought to be maintained <and preserved> to all even by violence: and the severest punishments inflicted upon the violation of them.6

Imperfect rights {or claims} are sometimes indeed of the greatest consequence to the happiness and ornament of society, and our obligation to maintain them, and to perform to others what they thus claim, may be very sacred: yet they are of such a nature that greater evils would ensue in society from making them matters of compulsion, than from leaving them free to each one’s honour and conscience to comply with them or not.7 ’Tis by a conscientious regard to these imperfect rights or claims of others, {which are not matters of compulsion,} that virtuous men have an occasion of displaying their virtues, and obtaining the esteem and love of others.

Yet the boundaries between perfect and imperfect rights are not always easily seen. There is a sort of scale or gradual ascent, through several almost insensible steps,8 from the lowest and weakest claims of humanity to those of higher and more sacred obligation, {till we arrive at some imperfect rights so strong that they can scarce be distinguished from the perfect,} according to the variety of bonds among mankind, and the various degrees of merit, and claims upon each other. Any innocent person<, even a stranger> may have some claim upon us for certain offices of humanity. But our fellow-citizen or neighbour would have a stronger claim in the like case. A friend, a benefactor, a brother, or a parent would have still a stronger claim, even in these things which we reckon matters of imperfect obligation.

There’s also a third kind of Right, or rather an external shew of it, which some call an external right: when some more remote considerations of distant utility require that men should not be restrained in certain actions, enjoyments; or demands upon others, which yet are not consistent with a good conscience, or good moral dispositions.9 These external shews of Right, which will never satisfy a good man as a foundation of conduct, often arise from imprudent contracts {rashly entered into by one of the parties}, and often even from the wisest Civil Laws.

’Tis plain here, that there can be no opposition either between two perfect rights or two imperfect ones. But imperfect rights may be contrary to these called external. Since however the imperfect rights are not matters of just force or compulsion; wars, which are violent prosecutions or defences of some alleged rights, cannot be just on both sides.

IV. Rights are also divided into the alienable, and such as cannot be alienated or transferred. These are alienable, where the transfer can actually be made, and where some interest of society may often require that they should be transferred from one to another.10 Unless both these qualities concurr, the Right is to be deemed unalienable. ’Tis plain therefor, for instance, that for defect of both these qualities, our opinions in matters of Religion <and worship> are unalienable; and so are our internal affections of devotion; and therefor neither of them can be matters of {commerce,} contract, or human laws. No man can avoid judging according to the evidence which appears to him; nor can any interest of society require one to profess hypocritically contrary to his inward sentiments; or to join in any external worship which he judges foolish or impious{, and without the suitable affections}.

From the general account given of the nature of Right, these must be the two fundamental precepts of a social life; first, that “no man hurt another” or occasion any loss or pain to another which is neither necessary nor subservient to any superior interest of society. The second is “that each one on his part, as he has opportunity, should contribute toward the general interest of society”; at least by contributing toward the interest of his friends or family. And he who innocently profits a Part, contributes also in fact to the good of the whole.

[1. ]Not a new paragraph in the Institutio.

[2. ]See System 2.3.1, vol. I, p. 253.

[* ]<Book I. Chap. 1.12. and previous chap., book II.> [This note is left out by the translator, perhaps with good reason: neither the previous chapter, nor Book I, chap. I, sect. xii, explains why our notions of rights arise from moral sense.]

[* ]{See Cicero’s Offices, B. ii. 3, 4, 5, &c.}

[3. ]A new paragraph in the Institutio.

[4. ]Literally: “According to another meaning, obligation has always a reference to a law and, particularly, to a divine law, denoting ‘a solemn inducement imposed upon men, for reason of its utility, to perform or to omit certain actions.’ Such inducements can be brought about especially by divine laws.” See System 2.3.6, vol. I, p. 264.

[* ]{These are the definitions of Puffendorf, and of Barbeyrac in his notes on Grotius, as also in his animadversions on a Censure upon Puffendorf, ascribed commonly to Mr. Leibnitz, published with the French Translation of the book de Officio Hominis et Civis.} [The translator rightly refers to Samuel Pufendorf, De iure nat. libri octo, Lund, 1672, I.1.21 and I.6.5, Hugo Grotius, Les Droit de la guerre et de la paix, trans. Jean Barbeyrac, 2 vols., Amsterdam, 1724, I.1.9–10 and notes by Barbeyrac, p. 47, note 5 and pp. 48–49, note 4, and Pufendorf’s Les Devoirs de l’homme, et du citoien, ed. J. Barbeyrac, Amsterdam, 1718, published with [Gottfried Wilhelm von Leibniz’s] Jugement d’un anonyme sur l’orginal de cet abrégé [De officio]: avec des réflexions du Traducteur [Barbeyrac], pp. 429–95. Hutcheson has likely in mind also Richard Cumberland, De legibus naturae disquisitio philosophica, London, 1672, V, 11, for Cumberland criticizes the metaphorical [i.e., circular] use of the word vinculum (bond) in the common definition of the obligation drawn from Justinian’s Institutes, III, XIV, quoted by Pufendorf as well as by Hutcheson here.]

[5. ]For a parallel but shorter, and in some details different, account of obligation, see System 2.3.6, vol. I, p. 264: referring the reader to “Leibnitz’s censure on Puffendorf and Barbeyraque’s defence of him,” Hutcheson says that “ingenious men have contradicted each other with keenness; some asserting an obligation antecedent to all view of interest, or laws; others deriving the original source of obligation from the law or will of an omnipotent Being.” See the introduction, pp. xiv–xvi.

[6. ]See System 2.3.3, vol. I, p. 257.

[7. ]See System 2.3.3, vol. I, p. 258.

[8. ]See, System 2.3.5, vol. I, p. 262.

[9. ]See, System 2.3.3, vol. I, p. 259. On rights perfect, imperfect, and external see also, Inquiry, II.7.6, pp. 278–81.

[10. ]See, System 2.3.4, vol. I, p. 261.