Manning, Bayless

English

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REVIEWS
THE RIGHT TO LIFE. By A. Delafield Smith. Chapel Hill: The University
of North Carolina Press, 1955. Pp. ix, 204. $3.50.
"EUGE ! Belle! Dear Mr. Smith !" So wrote Hume in congratulation to a
certain Mr. Smith on the publication of his book, The Wealth of Nations. I
fear he could not have written with the same enthusiasm to the Mr. Smith
who has authored The Right to Life.
The jacket announces formidably that "The Right to Life is the distillation
of a philosophy worked out during a long career of private work and public
service [in the law]."1 But one is hardly prepared for the sheer novelty of
the dialectic.
Mr. Smith's central position is that society has an ethical, indeed religious,
duty to support and maintain each of its members and that the individual's
corresponding moral "right to life" should be translated by law into an enforce-
able legal right.2 According to his analysis, "Nature" provides of its riches
without stint to "life" and to man in his precivilization state; its resources are
there for all who will take. The essence of "Nature's laws" is that "Nature"
has no "power whatsoever to oppose at will the demands of life upon its re-
sources." 3 Man, during the "uncounted centuries throughout which he lived
in an environment that he himself could, with the aid of its laws, dominate"4
developed self-reliance and independence. But as society developed in complexity
each man became dependent upon other men rather than directly upon
"Nature." A major consequence of this process was that man's independence,
freedom, self-reliance and moral stability were destroyed as modem society
substituted for his "right to life" the hazard of being cut off without resources
or with, at best, only the degradation of charity. As Mr. Smith sees it, this
regrettable state of affairs can be corrected only by having society assume the
same responsibility for "life" that the Creator originally assigned to "Nature."
He would accomplish this result by law-but by law ethically constructed.
He complains that law is generally misunderstood to involve the exercise of
authority. Properly viewed, however, law is, as in "Nature," the operation
1. The author was a practicing lawyer from 1916 until 1937 when he joined the legal
staff of the Social Security Board. His career and interest have since centered upon the
field of social welfare legislation and administration.
2. But four of the thirteen chapters represent something of an unrelated detour,
three presenting the author's view that delinquent or neglected children should be placed in
the custody of individual guardians and one urging that social service work be handled
on a "professional" basis. Chapters 9-12.
3. P.17. One recalls the rather more pungent "Der Herr Gott ist raffiniert aber boshaft
ist Er nicht" attributed to Einstein. ("God may he subtle but he isn't plain mean" is
Wiener's translation, though better German scholars than I have suggested that "wily"
might be an improvement over "subtle.") The Einstein quotation denies the classic Mani-
chaean position: in physics at least, Nature has no feedback; once the right stops are
found the organ will always play the same way. WIENER, THE HMfAN USE op HUMAN
BIINGS 188 (1954).
4. P. 25.
19561
THE YALE LAW JOURNAL
of inexorable rules which merely state the consequences of alternative action.
Since the only ethical action is voluntary action of man's "will" uncompelled
by authority, the only ethical law is nonauthoritative, stating in advance the
consequences of alternative courses of action and leaving to each man the volun-
tary choice of his own route through his own "will." Thus the responsible,
free and ethical man can exist only where (1) society offers its resources on
the basis of need as a matter of legal right, (2) the law is a nonauthoritative,
clear statement of the consequences of alternative action, and (3) the individual
is left to make his own choice through his own will and to pay his own piper.
Mr. Smith catalogs the specific elements of the "right to life" which he con-
siders the individual should be able to enforce against society by law. They
include a job, wage insurance, food, shelter, clothes, remedial health service,
education up to the peak capacity of the individual to absorb it, vocational
training, rehabilitation, and as society's capacity grows, additions such as raised
minimum shelter standards.
Mr. Smith does not unduly burden his book with consideration of the means
or mechanics of his program. Financial, administrative and political implica-
tions are ignored except for a passing observation that taxes should be based
upon capacity to pay. Mr. Smith enthusiastically joins the deplorers of "so-
cialism," of whatever gait, on the ground that government interference with
the productive system involves government agencies in "authoritative methods,"
and "such dictatorial methods as price-fixing and other restraints upon human
initiative." 5 He is "greatly troubled to hear the word 'socialism' applied" to
his own program; in fact there is nothing socialistic about it because
"the mere introduction of a need factor into our distributive process and
the interposition of controls in that process essential to see that basic needs
of individuals-are met, can be achieved without the exercise of productive
management or direct participation in industrial enterprise."6
Moreover he is at some pains to point out that the life obligation he would
assure by law is not an obligation of the "state" but of "society"-an asserted
distinction which he leaves unelaborated.
He has rather more to say of his views on the legal tools to be used. The
"tax power" of the government rather than the "police power" is the proper
vehicle, for police power is "authoritative" and has no place in social legisla-
tion or in the development of ethical man. And most carefully preserved must
be that "most significant of all constitutional safeguards . . . the division of
powers-legislative, executive and judicial."' 7 He has concluded too that law
should be dear, certain and detailed so that administration may concern itself
with its proper function of serving rights and not determining them.
What may be said of all this? The semanticist may be expected to raise an
eyebrow at the giddy way in which Mr. Smith shinnies up and down the
5. P. 200.
6. Pp. 199-200.
7. P. 163.
[Vol. 66
REVIEWS
abstraction ladder, casually metaphorizing "life," "Nature," "freedom" and
many more. The theologian and general philosopher will doubtless question
Mr. Smith sharply on his concepts of free "will," "Nature" and the Creator.
The student of jurisprudence will entertain reservations at the offered parallel
between the probability statements we call physical "laws" and man-made
law regulating society. The functional analyst of the legal process will harbor
a certain skepticism at the sophistication of Mr. Smith's enthusiasm for con-
ceptual distinctions between the tax power and police power, between authori-
tative law and alternative-stating law and among the functions of the legislature,
the executive, and the judiciary. The anthropologist will be surprised at the
apparent indestructability of Rousseauian notions of man in a more primitive
state; and the caveman in his slow primordial way might have wondered at
Nature's guarantee of life as he disappeared into the maw of the smilodon.
The political scientist will ponder the political power repercussions of Mr.
Smith's program, be struck by his apparent insensitivity to the problem, and
find ingenuous his handling of concepts of socialism, the state and society. The
economist will want to know something about the financing of the program, its
economic implications and will doubt the validity of Mr. Smith's estimate that
his proposal is a "mere" adjustment in the distributive process. The historian
"and sociologist will recall Fourier and Owen, New Harmony and Oneida, and
ask Mr. Smith for his data on the response of man in the mass to assured
economic security. The 1956 psychologist will be less sure than Mr. Smith
of the character building results of 100 per cent permissiveness. And the gen-
eral reader will likely think the book a strangely undisciplined potpourri of
native American radicalism, conservatism and philosophic anachronisms (meta
and pro)-all steeped in a personal religious broth and served up in a style
unlikely to dispel the generally shaky literary reputation of lawyers.8
Though I think it a fair question to ask the excellent press which published
the book why it chose to do so, I shall not here press upon Mr. Smith any of
these questions. In the first place, there are some nuggets in the pan and I
am grateful for them. It seemed to me worthwhile to be reminded that:
S. Perhaps the generally cirro-didactic impression may be caught from this paragraph:
"Actually an individual who lacks an unconditional assurance of life is like an
electric wire carrying a high voltage current without proper insulation. As the
electric carrier lacking insulation yields its strength to the atmosphere, so human
beings dissipate their energies in an environment which keeps them in subjection.
The primary difficulty is that society tends to engulf the individual. When indi-
viduals weaken, society disintegrates. The pattern of legal right and obligation
which is intended to bind society together thus proves its inadequacy. The death of
cultures is, therefore, due in my opinion to the failure of society to see that
individuals are provided with the means of retaining their independence despite
their constantly increasing dependency upon their fellow men. We need, I think,
to retain this point of view when we examine our social and economic pattern. It
should be our guide in all proposals to make that pattern more fertile and productive
in terms of human character and personality." P. 25.
1956]
THE YALE LAW JOURNAL
"At present we have full employment with only sixty-odd million employed
individuals and ninety-odd million other individuals. These latter compose
our incapacitated and unemployable groups. All of us are members of
these incapacitated and unemployable groups for a large portion, and
most of us for the major portion, of our lives .
Or, to cite an analytic shot well on target:
"An individual's rights are not conditioned, legally or ethically, upon
his assumption or performance of obligations. I am aware that this is
the reverse of what is repeatedly urged, but it is true nevertheless ...
You may insist that, taken all together, an individual's rights and obliga-
tions are mutually dependent (though even of this point I can find no
support in the Christian ethic), but individually they certainly are not.
If you come to me as a lawyer to have me help you enforce some right
that has in fact accured to you, I am not in the least concerned from that
point on about your obligations. I am concerned only with the other fel-
low's obligation on which your right is founded. You may have obligated
yourself in acquiring the right; but it is quite as likely that you did not."'"
But, more importantly, what Mr. Smith has basically done is to spread
out to public view his personal social credo-his own dream of how men
should live together under law. The rest is trimmings-and it partakes of.
captiousness to attack the trimmings and leave the core untouched. Shall his
social thesis of responsible, independent, economically secure man in an ethical
society be rejected-or his hope that the law may be shaped to achieve this
end? Surely not on grounds of Utopianism. I should have thought that no
one would ever again belittle the importance of the Utopian; indeed, one may
well argue on the historical evidence that for the long game idealism is the only
pragmatic. If this is so, whatever we may think of Mr. Smith's command of
analysis, prose, philosophy or the social sciences, we may yet respect his dream
and the rare willingness of this practicing lawyer to set himself to the agoniz-
ingly hard job of thinking through for himself his personal conception of the
relationship of ethics, society and law.
BAYLESS MANNINGt
9. Pp. 45-46.
10. P. 52.
tAssociate Professor of Law, Yale Law School.
(Vol. 66


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