After reading this article you will learn about the functions of government and rights of persons.
It is easy, and perhaps even natural, to oppose the functions and powers of government to the rights and liberties of persons, as if they were mutually exclusive and each of them began at the point where the other ended. They may, indeed, be distinguished in thought, but they are inseparable in operation.
Functions of government cannot be separated from rights of persons, except in the sense in which the reverse of a coin can be distinguished from the obverse. On the one hand, the functions of government are a condition of the rights of persons, because they are necessary to the enjoyment of those rights and because they exist in order to secure them.
On the other hand, the rights of persons are a condition of the functions of government, because they are the source and the cause of the existence and action of government. To claim, for example, a right to the enjoyment of personal security is also to claim a right to protection against any invasion of that security; to claim that right to protection is also to claim the exercise of a function of giving protection; and to claim the exercise of that function is also to claim an organ, possessing power or authority, by means of which it is exercised.
We may accordingly say that government is a service on behalf of rights, and not a power outside their range: ‘servitium propter jura, non potestas praeter jura’. We may add that the service rendered by government to rights is both a consequence and a part of the general rights of persons. I have a right to the service, and the service is thus a part of my rights, because, and as a consequence, of the other and general rights belonging to me as a person.
The same view of the relation between functions of government and rights of persons may equally be attained if we follow another line of reflection. The State is, in its essence, a legal association. The mode of its action is law. The function of its organs of government is the declaration and enforcement of law.
What, then, is the nature of the relation of law to rights? Does it abridge them, or does it contain them? The answer, is that law contains rights, and indeed is rights. Law and rights are simply two aspects of something which is essentially one: law is its ‘objective’ aspect, or the thing as regarded from outside, and rights are its ‘subjective’ aspect, or the thing as regarded from inside, that is to say from the point of view of the ‘subject’ or person concerned.
If we look at a sum or system of rights objectively, and regard it accordingly as an object projected outside ourselves or a fact confronting us, we think of it primarily as law; but we also think of it as apportioning both the rights which we ourselves own as persons and the consequent duties which we owe to others, as similar persons, in order that they may own similar rights.
Conversely, if we look at the same sum or system subjectively, and regard it accordingly as existing in us and ourselves as participating in it, we shall think of it primarily as rights; but we shall also think of these rights, with their consequent and correlative duties, as parts and portions of a sum or system which in the gross is law.
If law is thus rights, and rights are thus law, a conclusion necessarily follows in regard to the functions of government. The function of the organs of government, in declaring and enforcing law, is also and equally a function of recognizing and guaranteeing the rights of persons. To declare and enforce law is also, and indeed is the same as, to recognize and guarantee rights. We are thus led once more to the conclusion that the function of government is the service of rights.
There is a corollary to this conclusion. If we think in terms of ownership, we shall say that the members of a political community are the owners of rights. We may also say, in addition, that along with their rights, and as a consequence and a part of those rights, they own the services required by their rights, and are therefore the owners of the functions of government which serve and secure the actual enjoyment of the rights which they own.
The question may then be asked, ‘What do the governors own, in their capacity of governors?’ Shall we say that they own authority—the authority of declaring, interpreting, and enforcing the law? It is impossible to use such language. The members of the governing organs (legislative, judicial, and executive) certainly exercise authority; but they do not own what they exercise.
They exercise authority as the appointees, direct or indirect, of the community which owns it, and which owns it as a consequence and part of its general ownership of rights. Authority in the sense of a function of government (or rather the sum of its functions) is not something owned by governing persons, but something which they owe, in virtue of their appointment, as a mode of service of rights.
We may therefore conclude that governing persons own nothing as such (though as members of the political community they own rights equally and in common with other members): they owe rather than own. They owe the exercise of the authority which is necessary for the secure enjoyment of the rights of persons: they owe the service, remunerated by pay or prestige or both, of declaring, interpreting, and enforcing the law which is the objective side of rights of persons: we may even say, if we look only at immediate sovereignty, that they owe the service of sovereignty, in the sense of declaring, in the last resort, what the law is and is henceforth to be. All authority, and all the functions of government, including the function of immediate sovereignty, are services owed to rights.