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(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 individual.
Natural Rights
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
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.
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