The Gazette 1971

been built a value system expressing the people's view as to the dominant values inherent in their concept of an order of Justice. It expresses the principles which direct law in action, and adopts as the ultimate criterion of Justice the rendering to each what is his own and his due because of his own very nature as man from which all values derive. Inscribed over the Harvard Law School Library are the words of Justinian "The precepts of the Law are to live honourably, not to injure another and to render each his due". Obligation to Render Each His Due The obligation to render each his due is but a legalistic emphasis given to the most fundamental principle of all living "Love thy neighbour as thyself". It has often surprised me how so little attention has been given to the qualification "as thyself". Love as an active and creative relatedness of man to man is equated with that of man to himself. The key to all is man's attitude towards himself and unless he has inherent in him and by his own very nature that which commands his own respect for himself the equation has no mean- ing. In an illuminating metaphor a social psychologist has described the point at which the human animal achieves a soul as be : ng the point when man calls upon himself and finds somebody at home. If we revert for a moment to the theories of law to which I referred earlier, we will see that it is this "insight" provided by our Constitution which supplies the "core of validity", the "beneficent and cohesive" element which they lack. Objections to Positivism and to Social Engineering Conformity with whatever happens to be the Law associates Justice with obedience. The Positivist's call that lawyers should insulate themselves from moral purposes is not only unreal but myopic. "Social- engineering", whilst purporting to promote the social good, leaves Justice to be determined in terms of what that good is conceived to be on a purely pragmatic basis. It ends inevitably in secular utilitarianism where ideas survive competition. It promotes the drawing-off of all spiritual implications into purely secular or prudential calculus of material advantage or dis- advantage. Like the onion it is scentful but centreless. The dangers of Bureaucracy and of the "Law and Order" Theory One of the greatest dangers to society is paternal bureaucracy which tends to regard the rights of human beings as something not to be considered outside the prerogative of government and to treat the under- standing of human rights as a governmental concept. We listen also today to strident pleas for Law and Order, pleas choosing a concept of order as the highest good yet omitting to lay stress upon the dignity of the individual human being who is more important than any order which does not base its claim upon that dignity as its primary, indeed its only, justification for survival. We must resist all attempts to conduct human affairs in the light of no other end than the pursuit of gain. Soc : ety is not an economic mechanism. The instru- mental character of economic activity must be empha- sised by subordination to the social purpose for which it is carried on. When profane incentives are substituted for morals, when the admiration of society is directed towards those who get rather than those who give, and if material gain is elevated to the standard by which all other activities are judged, something fundamental to our society will cease to exist.

(c) The purpose of this objective is the assurance of the dignity and freedom of the individual and the attainment of true social order. The Preamble thus declares the common good to be the directive rule and the norm of the acts of the sovereign power and identifies the end of law with the common good. The preamble, however, goes a step further and proclaims that the attainment of the common good is to be the means of assuring the dignity and freedom of The dignity and freedom of the individual is his status as an individual rational being seeking to live, in accordance with the self-determined use of his natural inclinations and faculties, a successful human life. Man's natural inclinations or basic drives demand certain faculties for their fulfilment. Men must live, their race must continue; they must own things; they must direct themselves. To these ends man has a natural title. Because of this title, he has a claim to the means for fulfilment; they are his by virtue of his own very nature; they inhere in him as a person. He has an inalienable title to them. As such, they constitute moral powers and specify the fundamental norms of what should be promoted and protected by the legal structure. These faculties are traditionally known as Natural Rights. This expression conveys the fact that they are natural to man and inseparable from him, springing from his nature as a human person. Their description in modern times is "Fundamental or Human Rights". The emphasis on their nature as moral powers stresses their positive purpose as a means of satisfying man's temporal and spiritual needs in order to attain the end appointed for him. They are natural because they are founded on a demand of nature and a natural title. These fundamental rights are recognised by the Constitution. They are, however, what a man is entitled to, not what society is willing to let him have. They are rooted in the nature of man. They owe nothing to their recognition in the Constitution. Their enactment is not one of determination but of discovery and declaration. They are "implicit in the concept of ordered society" (Justice Cardozo). The unwritten Constitution of Rights "There is, as it were, at the back of the written Constitution, an unwritten Constitution, if I may use the expression, which guarantees and well protects all the absolute rights of the people. The government can exercise no power to impair or deny them. . . . It (the Constitution) grants no rights to the people, but is the creature of their power—the instrument of their con- venience. esigned for their protection in the enjoyment of the rights and powers which they possessed before the Constitution was made, it is but the framework of the political government, and necessarily based upon pre- existing condition of laws, rights, habits and modes of thought" (Hanson v. Vernon, 27 Stiles 28, 73/4— Iowa, 1875). "As in our intercourse with our fellow men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all actions, and upon a recognition of them alone can free institutions be main- tained" (Butcher's Union Co. v. Crescent City Co., I l l U.S. 746. 756-1884). The Constitution is the ground-work of the legal structure of the State. It is the basis for government by law. It provides an outl'ne specification into which has the individual. Natural Rights

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