It is only later, after the progressive enlargement of stronger communities at the expense of weaker; still later, when man commenced to comprehend the sufferings for the community which result from the autocracy and pa.s.sion for unlimited pleasure of a few persons; finally, when he discovered the narrow limits of the earth, that notions of humanity and humanitarianism, that is to say the sentiment of human solidarity, were able to develop in the general conscience.

It was, however, one of the ancients who said "I am a man and nothing human can be strange to me." But in his time, as in that of Jesus Christ, civilization was already far advanced and influenced by the wide humanitarian ideas, more ancient still, of the a.s.syrians and the Buddhists.

Every one who reflects will understand that the relativity of the rights of groups in man and that of the duties which correspond to them, must in time expand and be applied, little by little, to all the human inhabitants of the earth. What is more difficult is the definition of what should be understood under the term of humanity, capable of being socialized and cultivated.

No doubt, the gap which exists between the lowest living human race and the highest ape is considerable and without direct transition.

However, we gradually begin to recognize, on the one hand, that we have certain duties toward animals, at least toward those which serve us, and, on the other hand, we know that certain of the lower human races, such as the pigmies, the Veddas and even the Negroes, are inaccessible to a higher civilization, and especially incapable by themselves of maintaining what a number of their individuals learn by training when they live among us. We shall, therefore, have to choose finally between the gradual extinction of these races or that of our own.

It is not my business to deal with this question here, to trace the limits of civilizable humanity, or to examine the rights and duties of civilized men to each other relatively to the rest of the living world; or, in other words, to what extent civilized man should have the relative right of subjecting other living beings, exploiting them in his own interests, nourishing them, or eventually exterminating them for the safety of his own existence.

As regards the animal and vegetable kingdoms, from the amoeba to the orang-utan, the question is simple enough and settled. It is much more difficult to decide for men and for peoples separated from us by great racial differences. I must emphasize the profoundness of this difference. It is evident that the higher cultivated races, or rather blends of races, which live to-day will do better to live in peace than to mutually exterminate each other.

It is necessary to discuss these questions at the risk of hurting the feelings of sentimental persons. But what is the use of being blind to such patent facts? It is not too soon to look closely into the future, and it is only thus that we can arrive at any useful result. The natural rights of man should evolve more and more from a complex of social rights and duties toward a single great group, which we may call _civilized humanity_, the relative limits of which can only be traced by repeated trials and by practical experience. The instincts of the wild beast are still so deeply rooted, even in civilized men, that they can only be adapted gradually and even painfully to a natural right thus understood and limited. We must honestly admit that such a right only merits very relatively the denomination of _natural rights_. In fact, social rights are necessarily artificial in man. A few elementary rights and duties only are quite natural, especially in the s.e.xual domain. We are concerned here with adaptations in the form of instincts which serve for the support and development of the family, as well as for the protection of the individual. Among these we may mention the right to life, the duty of labor and the right to labor, the right of the infant to be nourished by its mother and to be cared for and protected by its parents, the duty of parents to nourish their children, the duty of the husband to protect his wife, the right to obtain nourishment from the animal and vegetable kingdoms, the right to satisfy the s.e.xual appet.i.te, etc.

There exists, however, a series of other rights and duties, which are so necessary that they may be termed natural. Such are the right to possess a dwelling place; to defend one's life against attack; to think and believe what one wishes so long as one does not impose one's ideas and faith on others; the duty to respect the life and property of one's neighbor; the duty to give a healthy and sufficient education to youth, both in body and mind, etc.

If we regard the matter without prejudice, certain rights and duties which have been hitherto considered as natural and self-evident, become very doubtful. Such are ecclesiastical and religious rights and duties, patriotic and national duties, the rights and duties of war, the rights of privileged cla.s.ses, the rights of property, etc. It is clear, from an unprejudiced examination of the development of humanity, that these so-called rights and duties are only the historic legacies of mysticism or of limited human groupings, and in great part artificial. The rights and duties of members of the groups in question consisted in mutually protecting their opinions and their national and religious interests, etc., and in subjecting or even trampling under foot those of other human groups. These lead us quite naturally to the second category of general notions of rights.

=Conventional Rights.=--To speak correctly, conventional rights are not rights. They are simply a dogmatic sanction applied to all kinds of customs and abuses that men have appropriated, according to local circ.u.mstances and their fortuitous conquests or acquisitions. Here, the consequences of the natural rights of the stronger, religious mysticisms and all sorts of human pa.s.sions, the s.e.xual appet.i.te especially, play a very varied and complex role.

The absurdity and injustice of conventional rights is shown by the difference, often even the absolute contrast, of the corresponding conception of rights among different peoples. In one, polygamy is a right and even a divine inst.i.tution; in another, it is a crime.

Individual murder is generally considered as criminal, but in warfare the slaughter of ma.s.ses becomes a duty and even a virtue. Theft and rapine are regarded in times of peace as crimes, but in time of war, under the form of annexation and plunder they are the uncontested rights of the victor. In a kingdom, the monarch is looked upon as a holy person and offense to his majesty as a crime; in a democracy, it is individual domination which is regarded as criminal.

Falsehood and mental restriction are, in certain cases at least, the rights or even the duty of the Catholic, who is only forbidden to swear falsely in the name of G.o.d and religion, while others consider all falsehood more or less unjustifiable; others again regard every oath as sinful.

The contradictions, inconsistencies, unnatural prescripts and tyrannies of what is called conventional rights in different peoples are innumerable, and the notions of our rights which we have inherited from the Romans are not much better.

=Retaliation.=--In historical epochs, we see the rights of the stronger succeeded by certain notions of rights which may still be considered as primordial; such is the law of retaliation or lynch law, based on the natural sentiment of vengeance, which is itself derived from anger, jealousy and pride, and says "An eye for an eye and a tooth for a tooth." The law of retaliation is very natural and very human. Although of savage origin, it has at least the merit of recognizing in men an equal right in retaliation for injury caused in a brutal fashion, without considering inner motives.

=Expiation.=--We also find in the old law another notion derived partly from the preceding, but chiefly from religious mysticism--the notion of expiation. After constructing in his own image a divinity blinded by human pa.s.sions, man attributed to him, from fear of vengeance, sentiments of anger and indignation regarding his baseness and malice toward his neighbor. He then conciliated the divinity and appeased his wrath by making sacrifices, human or otherwise.

At first, sacrifices were not made of criminals or guilty persons, but of innocent lambs, men or beasts, sometimes with all kinds of torture, to appease the supposed wrath of the G.o.ds. Gradually, however, these customs became more humane and were changed to the notions of expiation which we still have. Whosoever has committed a crime should expiate it by some kind of pain, eventually by death. In our modern penal law, notions of expiation and retaliation are blended, and when we study its roots in ethnology we are not surprised to see the expiation and punishment of so-called crimes against G.o.d or religion.

We find in this fact a singular mixture of religious and judicial notions. A curious way of appeasing the divinity is the sacrifice of animals and other offerings which ancient and savage peoples made and still make, in returning thanks for victory or some other good fortune, or to appease supposed wrath.

=Themis.=--In spite of all these errors, ancient civilization represented as the ideal of right a G.o.ddess of justice, _Themis_, with eyes blindfolded and holding scales in her hands. The scales signified that right and wrong should be carefully weighed against each other; the bandage, that the judge should p.r.o.nounce his verdict without regard to persons, and be inaccessible to all outside influence. For the limited ideas of that period, little removed from retaliation and expiation, this blind woman with her scales was a sufficient representation of justice. She had no need to trouble about the psychology of human nature, mental disorders, diminished responsibility or ideal social improvement.

=Themis Unblindfolded. Fallacy of Free-will.=--Nowadays the task of our G.o.ddess is not so simple, for the progress of humanity and science, especially of psychology and psychiatry, oblige her whether she wishes or not, to completely remove her bandage, so as to see clearly into the human brain.

It is not simply a question of knowing whether an accused person has or has not committed the act which he is accused of, but also whether he knew what he was doing, what were the motives which urged him, and who is the real instigator of the misdeed. Alcohol, mental anomalies and diseases, suggestions, pa.s.sions, etc., concur in influencing the human brain so that it is hardly responsible for its acts.

Again, on further examination, we find that the accepted and historical notion of free-will, that is to say the absolute liberty of man's will, which const.i.tutes the very existence of our old penal law, becomes not only more problematical, but may even be considered as a purely human illusion, resting on the fact that the indirect and remote motives of our actions are mainly subconscious.

The great philosopher, Spinoza, has already demonstrated this truth in a masterly manner, and modern science confirms it in all respects.

Every effect has its cause, and all our resolutions are the result of the activities of our brain, in their turn determined or influenced by hereditary engrams (instincts and dispositions) or acquired (memories), which are their internal causes, and combine with causes acting from without. Let us admit freely the fallacy of the old axiom of human free-will and endeavor to understand that what we consider as free will is nothing else than the very variable faculty of our brain, more or less developed in different individuals, of adapting its activity to that of its environment, and especially to that of other men. Also let us endeavor to take into account that our will and all our actions are, consciously or unconsciously, determined by a complex of energies or hereditary engrams (character), combined with those which have acted upon us from without during our life, as well as with emotional or intellectual sensory impressions.

Our whole conception of rights, and especially of penal law, should then change. We should entirely do away with _retaliation_, a barbarous relic of a more or less animal sentiment of our ancestors, and _expiation_, the relic of a superannuated and superst.i.tious mysticism. Modern and truly scientific reformers of penal law have already taken account of this necessity. But, in spite of the complete inefficacy of the old penal system as regards the diminution of crime, they have so far only put into practice few of their ideas.

=Justification of Rights and Laws.=--After what we have just said, there only remain, two reasons to justify the existence of rights and laws:

(1). To protect human society against criminals, and in general to inst.i.tute ideas and laws with a view to regulate the mutual interests of men, in such a way as to result in natural conditions of existence as advantageous as possible, both for the individual and for society:

(2). To study the causes of crimes, social conflicts, imperfections and inequalities, so as to obtain, by contending against these causes, an improvement in men and their social condition. It is true that what we demand here means a complete transformation of the notions of conventional right, not only in our old penal law, but also to a great extent in civil law; but this transformation is inevitable and has even already commenced. Its object is to liberate right from the grasp of an old metaphysico-religious dogmatism, and from crystalized doctrines derived from superannuated custom and abuse, and to found itself on the applied and social natural history of man, who then only will merit the name of _h.o.m.o sapiens_ which was given to him by Linnaeus, the great nomenclator of living beings.

Jurists have already too long based metaphysics on old barbarous customs and superst.i.tious mysticism, transformed into dogmas. It is time that Themis removed her bandage, studied psychology, psychopathology and science, and submitted the impartial handling of her scales to the influence of truer and juster human factors, even if her work thereby becomes more difficult and more complicated.

=s.e.xual Rights.=--While s.e.xual sentiments form part of the most sacred and intimate conditions of individual happiness, they are also closely and indissolubly connected with the social welfare of humanity. In no domain is it more difficult to combine harmoniously the welfare of the community with that of the individual, and this is why questions of right in s.e.xual matters are among the most difficult to solve.

The satisfaction of the s.e.xual appet.i.te in man is part of his natural rights. Natural science compels us to formulate this principle; yet it is a dogma the consequences of which may become very grave and even fatal; for the satisfaction of a man's s.e.xual appet.i.te implies, not only the direct partic.i.p.ation of one or more human beings in a common act, but also that of a much greater number in its indirect effects; and it may occasion, according to circ.u.mstances, more harm than good.

If the question of reproduction did not exist, it would be more easy to put individualism in more or less harmonious accord with socialism. It is thus the s.e.xual relations which present the greatest difficulties in the social domain.

In spite of the considerable progress which has been accomplished, our modern law is still based to a great extent on the barbarous principle of the legal inequality of the s.e.xes. The mind of man and that of woman are no doubt of different quality; nevertheless, in a society which does not possess as.e.xual individuals like that of the ants and bees, and in which the two s.e.xes are compelled to work together harmoniously for the social welfare, there is no reason to subordinate one s.e.x to the other. Man may have 130 or 150 grammes more brain tissue than woman and be superior to her in his faculty of combination and invention, but this is no reason why we should only accord his wife and mother inferior social rights to his own. His bodily strength will always protect him against the possible encroachments of woman.

A first postulate is, therefore, the equality of the two s.e.xes before the law. A second postulate consists in the emanc.i.p.ation of infancy, in the sense that it should never be considered as an object of possession or of exploitation, as was and is still so often the case.

These are the fundamental principles of a normal s.e.xual law. In no animal do we find the abuses which man is permitted to practice toward his wife and children. Let us now pa.s.s on to special questions.

CIVIL LAW

The object of civil law is to regulate the relations of men to each ether. Properly speaking it does not punish, that is to say, it requires no expiation and is not concerned with crime. It seeks to improve the social basis for mutual obligations and contracts.

Nevertheless, it borders on penal law as regards the question of damages which one individual must pay another whom he has injured even involuntarily, as well as by the coercive measures, both administrative and operative, which it employs.

Although resting on a natural basis better adapted to the social welfare than penal law, civil law still contains the traditions of religious mysticism and the abuse of conventional right.

I shall here a.n.a.lyze in a few words what concerns our subject in actual civil law, and shall point out the modifications which appear to me desirable. It is, however, impossible for me to enter into the details of codes, owing to absence of special knowledge. Moreover, this would lead us too far from our subject.

=Marriage and s.e.xual Relations in General.=--The coitus of two individuals, performed with mutual deliberation and causing no harm to a third person, should be considered as a private affair, and should have no connection with either civil or penal law.

However great may be the necessary restrictions of this general axiom, it must be recognized as valid in principle. Society has no right to restrict the liberty of individuals so long as it, or one of its members, is not injured by these individuals. So long as coitus is freely performed by adult and responsible persons, has no indirect consequences, and does not cause fecundation, neither society nor any one is injured.

In the practice of law this axiom is not yet generally accepted. Many laws, especially among the Germanic peoples, punish concubinage, or extra-nuptial coitus. Even when concubinage is tolerated, it is considered illegitimate, so that the woman who gives herself to it and the children who result from it, have much to suffer. Although they const.i.tute simple religious precepts, the ordinances of Liguori and others concerning coitus influence in a high degree s.e.xual relations in Catholic countries.

As a rule, coitus is only legally recognized as licit in marriage. But we have seen in Chapter VI how elastic is the term marriage, which varies from polygamy and monogamy to polyandry, and from marriage for short periods to indissoluble marriage, to say nothing of the cases where women are sacrificed on their husbands' tombs. We have seen that religious traditions, arising themselves from barbarous customs, play a great part in conjugal law. It is only by infinite trouble that the principle of civil marriage has made its way in modern civilized states. Even to-day, religious marriage is in some countries only form of union which is legally recognized. These simple facts show to what extent we are still hidebound by tradition.

The idea that marriage is a divine inst.i.tution and that man has the right to contract, but not to dissolve it, is still a widespread belief, however bizarre it may be. We shall not enter here into the detail of the religious forms of marriage, which is referred to in Chapters VI and XII.

It is evident, from our modern and scientific point of view, which is purely human and social, that civil law only can be recognized as valid. Religious forms and ceremonies must be considered as belonging to a private domain. For this reason they concern neither the State nor society, and should be refused all legal character; for it is our duty to strive and liberate humanity from the tyranny of all imposed creeds, as we should combat all so-called State religion.

=Civil Marriage.=--What then is civil marriage, and what ought it to be? Our actual civil marriage is the result of trials and compromises which require improvement. It is a contract between two persons of opposite s.e.x whose mutual object is the reproduction of the human species. In this contract the law is unfortunately too much concerned with the personal relations of the two contracting parties, and too little with the interests of their eventual posterity, which necessitates care and attention on the part of the social legislator.

Moreover, the traditional conception of the dependence of woman disturbs the purity and justice of civil marriage.

In my opinion, the first fundamental principles of civil marriage should be absolute legal equality of the two conjoints and complete separation of property. The momentary amorous intoxication of a woman should not allow a man to appropriate her property in whole or in part; only truly barbarous laws could permit such iniquity, and they should be banished from all the codes of civilized countries.

Moreover, in countries where woman enjoys important rights, the community of property furnishes those who are unscrupulous with the means of completely despoiling their husbands.

Further, in common conjugal life, the domestic work of the wife should not be considered as obligatory and requiring no special remuneration. Her work has as much right to be considered as that of the husband, and should be entered to the wife as an a.s.set.

Community of property is so immoral that it should be considered invalid in case of ulterior dispute, when it has been inst.i.tuted by private contract. It is the business of the conjoints to put it in practice if they wish, so long as they are of one mind. But when dissensions or divorce take place, it only injures the one who has remained honest, and at the same time the children.

This is why such contracts ought never be definitely binding to the conjoints. Even if the marriage is not unhappy, the extravagances or blunders of one of the conjoints may ruin the whole family, in the case of common property.