Page:American Journal of Sociology Volume 5.djvu/564

 548 THE AMERICAN JOURNAL OF SOCIOLOGY

they become " legal rights." Here the coercive element has been definitely extracted from the inchoate mingling of coer- cion and persuasion characteristic of popular rights, and has been given a clear and definite statement, on which the people can depend. The state thereby further emerges and differen- tiates from the other institutions of society, and the added powers in the hands of its certain and determinate agents con- stitute positive law and legal rights.

The confusion in meaning of moral right, on the one hand, and popular and legal right, on the other, is based on the deep conviction or feeling that legal rights should be backed by moral right. This conviction is expressed in the terms " divine rights" and " natural rights." Properly speaking, these terms do not apply to substantive rights. They do not indicate primarily a social relation, but an opinion as to what ivoidd be a right social relation, i. e., a riglit right. They belong to moral right and not to substantive rights. They are simply a dogmatic way of asserting that one's own opinion of what ought to be a legal right is above question. It is to be noted that these terms do not appear until society has entered the reflective stage. In the empiric stage social relations are determined by religion and custom. These are above inquiry and criticism. They are not thought of as either right or wrong, but as commanded by the gods. But in the reflective stage, with its tyrants, tribunes, and absolute monarchs, whose personal wills emerge as sanctioning or even overruling custom, and whose commands become laws in the Austinian sense, then appeal must be made to the con- sciences of those who are called upon to obey. This was done first under the claim of the "divine right" of kings, then the "natural right" of kings, and finally, with the rise of transfer- able property, the doctrine of natural right was appropriated by the capitalist class in their demand for equal privileges with king and lords. Throughout all these controversies the terms " divine " and " natural" right signified merely that those who laid claim to the coercive power of the newly emerging state in the asser- tion of legal rights were morally justified in the action they took. It was their only way of appealing to the powerful