Every thing which the legislator is called upon to distribute among the members of the 'Community, may be reduced to two classes:
Rights are in themselves advantages; benefits for him who enjoys them: obligations, on the other hand, are duties; burthensome charges for him who has to fulfil them.
Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence. According to the nature of things, the law cannot grant a benefit to any, without, at the same time, imposing a burthen on some one else; or, in other words, a right cannot be created in favour of any one, without imposing a corresponding obligation on another. In what manner is a right of property in land conferred on me? By imposing upon every body, except myself the obligation not to touch its produce. How is the right of commanding conferred on me? By imposing upon a district, or a number of persons, the obligation to obey me.
The legislator ought to confer rights with pleasure, since they are in themselves a benefit; he ought to impose obligations with repugnance, since they are in themselves an evil. In accordance with the principle of utility, he ought never to impose a burthen but that.he may confer a benefit of a greater value.
In the same proportion as it creates obligations, the law curtails liberty: it converts into offences, acts which would otherwise be permitted and unpunishable. The law creates an offence, either by a positive commandment or by a prohibition.
These curtailments of liberty are inevitable. It is impossible to create rights, to impose obligations, to protect the person, life, reputation, property, subsistence, or liberty itself, but at the expense of liberty.
But every restraint imposed upon liberty is liable to be followed by a natural feeling of pain, more or less great, independent of an infinite variety of inconveniences and sufferings which may result from the particular mode of this restraint. It follows, therefore, that no restraint should be imposed, no power conferred, no coercive law sanctioned, with out a specific and satisfactory reason. There is always one reason against every coercive law, and one reason which, were there no other, would be sufficient by itself: it is, that such a law is restrictive of liberty. Whoever proposes a coercive law, ought to be ready to prove, not only that there is a specific reason in favour of this law, but also that this reason is more weighty than the general reason against every law.
The proposition, although almost self-evident, that every law is contrary to liberty, is not generally recognised: on the contrary, the zealots of liberty, more ardent than enlightened, have made a conscience of combating it. And how have they done it? They have perverted the language, and will not employ this word in its common acceptation. They speak a language that belongs to no one: they say, Liberty consists in the power of doing every thing which does not hurt another. But is this the ordinary meaning of this word? The liberty of doing evil, is it not liberty? If it is not liberty, what is it then? and what word should we make use of in speaking of it? Do we not say that liberty should be taken away from fools, and wicked persons, because they abuse it?
According to this definition, then, I do not know if I have the liberty of doing or not doing any action, until I have examined all its consequences? If it appear to me hurtful to a single individual, whether the law permit, or even command it, I have not liberty to do it! An officer of justice would not have liberty to punish a thief, unless he was sure such punishment would not hurt such thief! Such are the absurdities implied in this definition.
What says unsophisticated reason? Let us seek from thence for true propositions.
The sole object of government ought to be the greatest happiness of the greatest possible number of the community.
The happiness of an individual is greater, in proportion as his sufferings are lighter and fewer in number, and as his enjoyments are greater and larger in number.
The care of providing for his enjoyments ought to be left almost entirely to each individual; the principal function of government being to protect him from sufferings.
It fulfils this office by creating rights which it confers upon individuals: rights of personal security; rights of protection for honour; rights of property; rights of receiving assistance in case of need. To these rights, correspond offences of all classes. The law cannot create rights without creating the corresponding obligations. It cannot create rights and obligations without creating offences. It can neither command nor prohibit, without restraining the liberty of individuals.
The citizen, therefore, cannot acquire any right without the sacrifice of a part of his liberty. Even under a bad government, there is no proportion between the sacrifice and the acquisition. Governments approach to perfection, in proportion as the acquisition is greater, and the sacrifice less.[Back to:]