AFTER I got home, being alone and wanting amusement I sat
down to explain to myself (for there is such a thing) my Ideas of natural and
civil rights and the distinction between them— I send them to you to see how
nearly we agree.
Thus there was and still remains a distinction. Herein Paine
describes Natural Rights, those stated expressly in part in the Bill of Rights,
and enshrined in the Constitution. Yet which of the Rights in the Bill of
Rights are Natural or civil?
Suppose 20 persons, strangers to each other, to meet in a
country not before inhabited. Each would be a Sovereign in his own natural
right.
Now this pre-dates Rawls and in a sense exceeds the
complexity of Rawls and the development of the inhibiting construct of Social
Justice.
His will would be his Law, but his power, in many cases,
inadequate to his right, and the consequence would be that each might be
exposed, not only to each other, but to the other nineteen. It would then occur
to them that their condition would be much improved, if a way could be devised
to exchange that quantity of danger into so much protection, so that each
individual should possess the strength of the whole number.
Note, Paine comes back to the singular entity of the
individual, the basis of any and all Natural Rights.
As all their rights, in the first case, are natural
rights, and the exercise of those rights supposed only by their own natural
individual power, they would begin by distinguishing between those rights they
could individually exercise fully and perfectly and those they could not.
Here he comes and reflects on the Natural Rights and what
limits if any could be imposed as a result of entering into some form of
compact. I would argue that in Rawls discussion, the assembly is formed by
individuals without any rights, Natural or Civil, and in such a de novo
situation the outcome is skewed. However Paine foresaw the problem that Rawls
was blind to, namely the inherent rights of the individual, the Natural Rights.
Of the first kind are the rights of thinking, speaking,
forming and giving opinions, and perhaps all those which can be fully exercised
by the individual without the aid of exterior assistance— or in other words,
rights of personal competency.—
Here Paine attempts to law forth the Natural Rights. These
rights were well understood by 18th Century people, they were the
basis for our own Bill of Rights.
Of the second kind are those of personal protection, or
acquiring and possessing property, in the exercise of which the individual
natural power is less than the natural right.
It is interesting to see Paine place property rights as
being a lesser than a Natural Right. For it was in the writings of Ockham that
we first see individual rights and amongst them the right to property. The
right to own, to use, to transfer property, a right resulting from the work of
the individual and a construct handed down to Locke. As for personal
protection, one would assume self defense is a prime Natural Right, it is a corollary
of self-defense, of self-survival.
Having drawn this line they agree to retain individually
the first Class of Rights, or those of personal competency; and so detach from
their personal possession the second class, or those of defective power and to
accept in lieu thereof a right to the whole power produced by a condensation of
all the parts. These I conceive to be civil rights or rights of Compact, and
are distinguishable from Natural rights, because in the one we act wholly in
our own person, in the other we agree not to do so, but act under the guarantee
of society.
Rights of Compact or civil rights are those which we as a
society would agree to assert and enforce. The Natural Right as Paine asserts
is the right to act in one's own person. Then is not self-preservation such a
right? For Paine perhaps not because it asserts an act upon another. What os
the Natural Right of Free Speech, again Paine may argue it impacts another.
Paradoxically many of what we assert are Natural act upon another. Why do we
need a guarantee of society to worship as we so choose, to have property, to
speak, to have a free press?
It therefore follows that the more of those imperfect
natural rights, or rights of imperfect power we give up and thus exchange the
more security we possess, and as the word liberty is often mistakenly put for
security Mr. Wilson has confused his argument by confounding his terms.
Here is the essence, the battle between liberty and
security.
But it does not follow that the more natural rights of
every kind we resign the more security we possess, because if we resign those
of the first class we may suffer much by the exchange, for where the right and
the power are equal with each other in the individual naturally they ought to
rest there.
The statement is quite powerful. If we give up our natural
rights we do not gain security! The individual suffers. We must assert and
sustain our natural rights, and the security that is sought is done so only at
the peril of the mob. Those who assert that society as a whole can be more
secure, say in health care or environmental concerns, do so at the diminution
of the primal individual or Natural Rights. As Paine notes they do so at their
peril.
Mr. Wilson must have some allusion to this Distinction or
his position would be subject to the inference you draw from it. I consider the
individual sovereignty of the states retained under the Act of Confederation to
be the second Class of rights. It becomes dangerous because it is defective in
the power necessary to support it. It answers the pride and purpose of a few men
in each state— but the State collectively is injured by it.
Where Paine failed in regards to the French Revolution was
understanding the power of the mob, of Robespierre and of Danton, of the many
who used the Revolution to assert their power. One need just look back to the 14th
Century in France and England and the mobs in both. In France it was the Jacquerie
who roamed about slaughtering at will, the power of the mob, while in 1381 we
have the Peasants Revolt in England the confronting of the King. Chaucer may
have been fearful but not the King. The result was no slaughtering but the
evolution of the law.
By the time of the 18th Century we again see the
brutality of the French Revolution as compared to the rather
"gentler" American Revolution. The French tend to show the impact of
the mob. That should be a warning for any who seek the libertine stands of the
Social Justice warriors.
[1] Paine,
Thomas; Mark Philp. Rights of Man, Common Sense, and Other Political Writings
(Oxford World's Classics) (Kindle Locations 1615-1622). OUP Oxford. Kindle Edition.
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