Common Sense and Common Law

"Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher. Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer." -- Thomas Paine, from Common Sense, (1776)

• Paine further explored the relationship between society and state in Rights of Man, Part the Second.

"Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished...

All the great laws of society are laws of nature. Those of trade and commerce, whether with respect to the intercourse of individuals or of nations, are laws of mutual and reciprocal interest. They are followed and obeyed, because it is the interest of the parties so to do, and not on account of any formal laws their governments may impose or interpose.

But how often is the natural propensity to society disturbed or destroyed by the operations of government! When the latter, instead of being ingrafted on the principles of the former, assumes to exist for itself, and acts by partialities of favour and oppression, it becomes the cause of the mischiefs it ought to prevent."

• But how may we know which functions are fit for the management by the individual members of Society, and which by the State. Paine explores which Natural Rights are fit to exchange for Civil Rights in this excerpt from a letter to Thomas Jefferson.

Suppose 20 persons, strangers to each other, to meet in a Country not before inhabited. Each would be a Sovereign in his own Natural right. His will would be his Law, but his power, in many cases, inadequate to his right and the consequences would be that each might be exposed, not only to each other, but to the other nineteen. It would then occur to them that their condition would be much improved, if a way could be Devised to exchange that quantity of Danger into so much protection, so that each individual Should possess the strength of the whole Number.

As all their rights, in the first case, are natural rights, and the exercise of these rights supported only by their own natural individual power, they would begin by distinguishing between those rights they could individually exercise fully and perfectly and those they could not.
Of the first kind are the rights of thinking, speaking, forming and giving opinions, and perhaps all those which can be fully exercised by the individual without the aid of exterior assistance or in other words, rights of personal competency.

Of the second kind are those of personal protection, of acquiring and possessing property, in the exercise of which the individual natural power is less than the natural right. Having drawn this line they agree to retain individually the first Class of Rights or those of personal Competency; and to detach from their personal possession the second Class, or those of defective power and to accept in lieu thereof a right to the whole power produced by a condensation of all the parts.
These I conceive to be civil rights or rights of Compact, and see distinguishable from Natural rights, because in the one we act wholly in our own person, in the other we agree not to do so, but are under the guarantee of society...

But it does not follow that the more natural rights of every kind we resign the more security we possess, -- because if we resign those of the first class we may suffer much by the exchange, for where the right and the power are equal with each other in the individual naturally they ought to rest there."