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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..246c3c1 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #61889 (https://www.gutenberg.org/ebooks/61889) diff --git a/old/61889-0.txt b/old/61889-0.txt deleted file mode 100644 index b07d16b..0000000 --- a/old/61889-0.txt +++ /dev/null @@ -1,11037 +0,0 @@ -The Project Gutenberg EBook of Lectures on the Principles of Political -Obligation, by Thomas Hill Green and Bernard Bosanquet - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: Lectures on the Principles of Political Obligation - Reprinted from Green's Philosophical Works, vol II with - Preface by Bernard Bosanquet - -Author: Thomas Hill Green - Bernard Bosanquet - -Editor: Richard Lewis Nettleship - -Release Date: April 22, 2020 [EBook #61889] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK PRINCIPLES OF POLITICAL OBLIGATION *** - - - - -Produced by GDurb - - - - -LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION - -BY - -THOMAS HILL GREEN LATE FELLOW OF BALLIOL COLLEGE AND WHYTE'S -PROFESSOR OF MORAL PHILOSOPHY IN THE UNIVERSITY OF OXFORD - -REPRINTED FROM GREEN'S PHILOSOPHICAL WORKS, VOL II. WITH PREFACE BY -BERNARD BOSANQUET - -NEW IMPRESSION - -LONGMANS, GREEN AND CO LTD 39 PATERNOSTER ROW, LONDON NEW YORK, -BOMBAY, AND CALCUTTA - -1911 - -All rights reserved - -PREFACE. - -The present volume consists of the late Professor Green's lectures -on the 'Principles of Political Obligation,' together with a chapter -on the different senses of the term 'Freedom,' taken from a course -directly connected with the former. The work thus re-issued is a -reprint of pp. 307-553 of Vol. II. of Professor Green's Philosophical -Works, with the addition of a brief supplement (p. 248) furnished -by the present writer, consisting of English renderings for some -quotations which appear in the text (pp. 49-59). - -The reason for this re-issue is as follows. The course of lectures in -question has long been known to teachers as a most valuable text-book -for students of political theory. But as a portion of a large and -expensive volume, which is itself part of a set of collected works, -it naturally was not accessible to members of popular audiences. -In discussing the selection of a text-book for a projected course -of instruction on political theory, to be given in London, it was -suggested that a separate volume, containing the 'Principles of -Political Obligation' would be the best conceivable book for the -purpose. No other recent writer, it was felt, has the classical -strength and sanity of Professor Green, who was never more thorough -and more at home then when dealing with those questions affecting -citizenship in and for which, it may be said, he lived. Many of the -troubles of today reflect the distraction of minds to which a sane -and balanced view of society has never been adequately presented; -and the importance of the service which might be rendered to general -education by the re-issue of these lectures in a convenient form -appeared to justify an application to those who had the power of -carrying out the suggestion which had been made. - -The friends of genuine political philosophy will have good cause, it -is hoped, to be grateful to Mrs T.H. Green for her cordial assent -to the proposed republication, as also to Messrs. Longman for their -promptitude in agreeing to undertake it. The elaborate table of -contents, reprinted from the Philosophical Works, was compiled by -their editor, the late Mr. Lewis Nettleship. It adds very greatly to -the value of the book. - -BERNARD BOSANQUET - -Transcriber's Note: each of Green's footnotes has been placed after -the paragraph to which it refers, and renumbered accordingly. -The footnotes added by R.L. Nettleship are treated the same way, -remain in the square brackets with which he distinguished them, -and are marked 'RLN'. The transcriber has added a few footnotes, -mainly explaining Greek words in the text. These are also in square -brackets, marked 'Tr'. - -CONTENTS - -ON THE DIFFERENT SENSES OF 'FREEDOM' AS APPLIED TO WILL AND TO THE -MORAL PROGRESS OF MAN. - -1. In one sense (as being search for _self_-satisfaction) _all_ will -is free; in another (as the satisfaction sought is or is not real) it -may or may not be free - -2. As applied to the inner life 'freedom' always implies a metaphor. -Senses of this metaphor in Plato, the Stoics, St. Paul - -3. St. Paul and Kant. It would seem that with Kant 'freedom' means -merely consciousness of the _possibility_ of it, ('knowledge of sin') - -4. Hegel's conception of freedom as objectively realised in the state - -5. It is true in so far as society does supply to the individual -concrete interests which tend to satisfy the desire for perfection - -6. Though (like the corresponding conception in St. Paul) it is not -and could not be realised in any actual human society - -7. In all these uses 'freedom' means, not mere self-determination or -acting on preference, but a particular kind of this - -8. The extension of the term from the outer to the inner relations of -life, though a natural result of reflection, is apt to be misleading - -9. Thus the question, Is a man free? which may be properly asked in -regard to his _actions_, cannot be asked in the same sense in regard -to his _will_ - -10. The failure to see this has led to the errors (1) of regarding -motive as something apart from and acting on will, (2) of regarding -will as independent of motive - -11. Thus the fact that a man, _being what he is, must_ act in a -certain way, is construed into the negation of freedom - -12. And to escape this negation recourse is had to the notion of an -unmotived will, which is really no will at all - -13. The truth is that the will is the man, and that the will cannot -be rightly spoken of as 'acting on' its objects or _vice versa_, -because they are neither anything without the other - -14. If however the question be persisted in, Has a man power over his -will? the answer must be both 'yes' and 'no' - -15. 'Freedom' has been taken above (as by English psychologists -generally) as applying to will, whatever the character of the object -willed - -16. If taken (as by the Stoics, St. Paul, Kant (generally), and -Hegel) as applying only to _good_ will, it must still be recognised -that this particular sense implies the generic - -17. Whatever the propriety of the term in the particular sense, -both 'juristic' and 'spiritual' freedom spring from the same -self-asserting principle in man - -18. And though the former is only the beginning of full freedom, this -identity of source will always justify the use of the word in the -latter sense - -19. But does not the conception of 'freedom' as = the moral ideal -imply an untenable distinction like that of Kant between the 'pure' -and 'empirical' ego? - -20. The 'pure' and 'empirical' ego are one ego, regarded (1) in its -possibility, (2) as at any given time it actually is - -21. In man the self-realising principle is never realised; i.e. the -objects of reason and will only _tend_ to coincide - -22. So far as they do coincide, man may be said to be 'free' and his -will to be 'autonomous' - -23. The growing organisation of human life provides a medium for the -embodiment, and disciplines the natural impulses for the reception, -of the idea of perfection - -24. The reconciliation of reason and will takes place as the -individual more and more finds his own self-satisfaction in meeting -the requirements of established morality - -25. Until these come to be entirely superseded by the desire of -perfection for its own sake, and his will becomes really free. - -LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION - - A. _The grounds of political obligation._ - -1. Subject of the inquiry - -2. Its connection with the general theory of morals. Ideal goodness -is to do good for its own sake: but there must be acts considered -good on other grounds before they can be done for the sake of their -goodness - -3. When, however, the ideal comes to be recognised as the ideal, the -lower interests and rules must be criticised and revised by it - -4. The criticism of interests will yield a 'theory of moral -sentiments'; that of rules will relate (1) to positive law, (2) to -the law of opinion - -5. As moral interests greatly depend on recognised rules of conduct, -and those again on positive law, it is best to begin by considering -the moral value of existing civil institutions - -6. The condition of morality is the possession of will and reason, -and it is realised in a personal character in which they are -harmonised - -7. Civil institutions are valuable so far as they enable will and -reason to be exercised, and so far they answer to 'jus naturae' - -8. The essential questions as to the 'law of nature' are, (1) Are -there rights and obligations other than those actually enforced? (2) -If so, what is the criterion of them? - -9. While rejecting the theory of a 'state of nature,' we may still -use 'natural' of those rights which _ought_ to be, though they -actually are not - -10. Such 'natural law' is (as admitting _enforcement_) distinct from, -but (as implying a _duty_ to obey it) relative to, the moral law - -11. Hence two principles for the criticism of law, (1) only external -acts can be matter of obligation proper, (2) the ideal of law must be -determined by reference to the moral end which it serves - -12. Observe _(a)_ that in confining law to 'external actions,' we -mean by 'actions' _intentions_, without which there is properly no -'action' - -13. _(b)_ That by 'external' we mean that law, though it does supply -motives to action, looks merely to whether the action is done, not to -whether it is done from a particular motive - -14. Law then _can_ only enjoin or forbid certain acts; it _cannot_ -enjoin or forbid motives - -15. And the only acts which it _ought_ to enjoin or forbid are those -of which the doing or not doing, _from whatever motive_, is necessary -to the moral end of society - -16. The principle of 'natural law,' then, should be to enjoin all -acts which further action from the highest motive, and no acts which -interfere with such action - -17. This principle would condemn much legislation which has tended, -e.g., to weaken religion, self-respect, or family feeling - -18. This, and not the principle of 'laissez-faire,' is the true -ground of objection to 'paternal government' - -19. The theory of political obligation (i.e. of what law ought to -be, and why it ought to be obeyed) is not a theory _(a)_ as to how -existing law has come to be what it is - -20. Nor _(b)_ as to how far it expresses or is derived from certain -original 'natural' rights - -21. 'Natural' rights (like law itself) are relative to moral ends, -i.e. they are those which are necessary to the fulfilment of man's -moral vocation as man - -22. This however is not the sense in which political obligation -was based on 'natural rights' in the seventeenth and eighteenth -centuries, previously to utilitarianism - -23. The utilitarian theory so far agrees with that here advocated -that it grounds existing law, not on a 'natural' law prior to it, but -on an end which it serves - -24. The derivation of actual rights from natural (i.e. more -primitive) rights does not touch the real question, viz. how there -came to be _rights_ at all - -25. The conception of a moral ideal (however dim) is the condition of -the existence of rights, and conversely anyone who is capable of such -a conception is capable of rights - -26. Thus the consciousness of having rights is co-ordinate with the -recognition of others as having them, the ground of both being the -conception of a common good which _ought_ to be attained - -27. Rights then can only subsist among 'persons,' in the _moral_ -sense of 'persons,' i.e. being possessed of rational will - -28. Though the moral idea of personality is later in formulation than -the legal, and this again than the actual existence of rights - -29. Rights which are directly necessary to a man's acting as a moral -person at all may be called in a special sense 'personal' - -30. Nor is there any objection to calling them 'innate' or 'natural,' -if this means 'necessary to the moral development of man' in which -sense 'duties' are equally 'natural' - -31. Without a society conscious of a common interest there can be -only 'powers,' no 'rights'. - - B. _Spinoza._ - -32. Spinoza, seeing that 'jus naturae' = 'potentia,' and not seeing -that it is not really 'jus' at all, identifies all 'jus' with -'potentia,' both in the state and in the individual - -33. From which it follows that the 'right' of the state against its -individual members is only limited by its 'power' - -34. And the same principle applies to the relations of one state to -other states - -35. But, according to Spinoza, though everything is 'lawful' for the -state, everything is not 'best,' and the 'best' state is that which -secures a life of 'peace,' i.e. rational virtue or perfection - -36. This conclusion does not seem consistent with his starting-point, -according to which men are 'naturally enemies' - -37. From such a 'status naturalis' there is no possible transition to -the 'status civilis,' and the phrase '_jus_ naturae' remains unmeaning - -38. Spinoza's error of regarding 'rights' as possible apart from -society was confirmed by his denial of final causes - -39. It was just because Plato and Aristotle regarded man as finding -his end in the end of the state, that they founded a true theory of -rights - -40. Spinoza, however, while insisting that man is 'part of nature,' -yet places his 'good' in understanding nature and so acquiring a new -character - -41. In thus recognising the idea of perfection as a determinant of -life, he really recognises an operative final cause, though without -seeing its bearing on the theory of right. - - C. _Hobbes._ - -42. Hobbes differs from Spinoza in regarding the right of the -sovereign, not as limited by his power, but as absolute - -43. Statement of his doctrine - -44. He uses 'person,' as in Roman law, for either (1) a complex of -rights, or (2) the subject of those rights - -45. Though by his theory the sovereign may be one or many, and -sovereignty is transferable by the act of a majority, he tacitly -vindicates the absolute right of a _de facto_ monarchy - -46. The radical fiction in his theory is that there can be any -'right' _after_ the institution of sovereignty, if (as he holds) -there is none before it - -47. To justify his doctrine of absolute submission he has to assume a -'law of nature' which binds men to keep covenant, while yet he holds -the 'law of nature' to be mere 'power' and covenants to be only valid -under an _imperium,_ - -48. His 'contract' can confer none but natural right, and that is -either not a right at all, or (if it is) it belongs to all men, -subject and sovereign alike - -49. The real flaw in the theory of contract is not that it is -unhistorical, but that it implies the possibility of rights and -obligations independently of society - -50. Though it has not been popularly accepted as regards the rights -of sovereigns over subjects, the behaviour of individuals to society -is to a groat extent practically determined by it. - - D. _Locke._ - -51. The development of this latter side of it is peculiarly due to -Rousseau, but Locke, Hooker, and Grotius have essentially the same -conception: Spinoza alone differs - -52. Ambiguity of their phrase 'state of nature.' They agree in -treating it as the negation of the 'political state.' But if so, -contract would be impossible in it - -53. Nor could it be a state of 'freedom and equality,' as most of -them assume it to be - -54. And if this state of nature implies consciousness of obligation, -it must imply recognition of social claims, and must therefore be -virtually a political state - -55. In fact the theory of a state of nature governed by a law of -nature, as preceding civil society, must be untrue either to the -conception of _law_ or to that of _nature_ - -56. Locke differs from Hobbes (1) in distinguishing the 'state of -nature' from the 'state of war' - -57. He implies (more consistently than Hobbes) that the 'state of -nature' is one in which the 'law of nature' is observed - -58. (2) He limits the supreme power in the state by the legislature, -which holds its functions in trust from the community - -59. And this distinction between the supreme community and the -supreme executive enables him to distinguish between dissolution of -the political society and dissolution of the government, which Hobbes -had confused - -60. He invests the community with the right of resuming the powers -which they have delegated, and thus justifies revolution when it is -the act of the whole community - -61. The difficulty is to determine when it _is_ the act of the whole -community, and on this Locke's theory gives no help - -62. The difficulty indeed is not so great as that of conceiving the -act of original devolution of power, and is inherent in the theory of -contract - -63. In the particular case of the reform of the English -representative system, Locke does not contemplate the carrying out of -his own theory. - - E. _Rousseau._ - -64. Rousseau conceives the community to be in continual exercise of -the power which Locke conceives it to have exercised once and to hold -in reserve - -65. In his view of the motive for passing from the state of nature -into the civil state he is more like Spinoza than Locke - -66. His statement of the origin and nature of the 'social contract' - -67. Its effects upon the individual - -68. His idea of the sovereign is really that of a supreme -disinterested reason, but he fuses this with the ordinary idea of a -supreme coercive power - -69. The practical result of his theory has been a vague exaltation of -the will of the people, regardless of what 'the people' ought to mean - -70. Further consequences of his ideal conception of sovereignty. It -cannot be alienated, represented, or divided - -71. Thus the 'government' is never the same as the 'sovereign,' and -constitutions differ according to where the government, not the -sovereignty, resides - -72. The institution of government is _not_ by contract, but by the -act of the sovereign, and this act must be confirmed or repealed -periodically - -73. His distinction between the 'will of all' and the 'general will': -the latter always wills the common good, though it may be mistaken as -to means - -74. He admits however that it may be overpowered by particular -interests, and so find no expression even in the vote of a general -assembly - -75. What then is the test of the 'general' will? Absolute unanimity -is what Rousseau requires of the parties to the original contract - -76. But what is to decide whether their successors are parties to it? -Not 'residence,' unless there is also freedom to migrate - -77. The element of permanent value in Rousseau is his conception of -the state as representing the 'general will' - -78. Difficulties in this conception. It seems that either no actual -state realises it, or that there may be a state without a true -sovereign - -79. We may distinguish between _de facto_ and _de jure_ sovereignty, -and say that Rousseau meant the latter; but this is only an -_inference_ from what he says. - - F. _Sovereignty and the general will._ - -80. Hence it may be asked, (1) Is any actual sovereignty founded on -the 'general will'? (2) Can sovereignty _de jure_ be truly said to be -founded on it? (3) If so, must it be expressed through the vote of a -sovereign people? - -81. (1) According to (e.g.) Austin's definition of sovereignty, we -should answer this question in the negative - -82. (Observe that from Austin's definition it would follow that, -while every 'law' implies a 'sovereign,' a 'sovereign's' commands -need not be 'laws') - -83. That definition directly contradicts that of Rousseau, in _(a)_ -placing sovereignty in _determinate_ persons, _(b)_ making its -essence lie in power to compel obedience - -84. Actual sovereignty combines both definitions; the habitual -obedience of subjects to the sovereign is due to the sense that by -obeying they secure certain ends - -85. So far as Austin means that a fully developed state implies a -_determinate_ supreme source of law, he is right as against Rousseau - -86. But if sovereign power = the aggregate influences which really -make the people obedient, it must be sought in the 'general will' - -87. Such power need not be 'sovereign' in the narrower sense, and may -coexist with a separate coercive power which is 'sovereign' - -88. This has been the case in ancient despotisms, and in the modern -empires of the East - -89. So in states under foreign dominion, which retain a national -life, the technical sovereign is not the law-making and -law-maintaining power - -90. Under the Roman Empire, in British India, in Russia, where the -technical is also the real sovereign, its strength rests in different -degrees on the general will - -91. Thus the answer to question (1) depends on the sense of -'sovereign.' If it = a power which guarantees equal rights, it is -implied in every 'political' society - -92. But _(a)_ it _need_ not be the supreme coercive power, and _(b)_ -if it is so, it is not _because_ it is so that it commands habitual -obedience - -93. Thus (retaining the technical use of 'sovereign') it is true that -if the sovereign is to be so _really_, it must express and maintain a -general will - -94. Though this is compatible with the fact that some of the laws of -the sovereign conflict with the general will - -95. Thus as to question (2) (above, sec. 80), if sovereignty is said -to rest on the general will 'de jure,' either 'sovereign' or 'jus' is -not used in the strict sense - -96. An antithesis between sovereign 'de jure' and 'de facto' can only -arise from a confusion between 'sovereign' as = the source of law and -'sovereign' as = the 'general will' - -97. Though there are cases in which (in a different sense) a -sovereign may be conveniently described as 'de facto,' not 'de jure,' -or _vice versa_ - -98. Similarly, to say that the people is 'sovereign de jure' is to -confuse the general will with the coercive power of the majority - -99. Rousseau's confusion is due to the theory of 'natural rights' -(that the individual is not bound by anything which he has not -individually approved) - -100. The individual must indeed judge for himself whether a law is -for the common good; but though he judge it not to be, he ought as a -rule to obey it - -101. Cases in which a doubt may arise - -102. _(a)_ Where the legal authority of the law is doubtful, owing to -the doubt where the sovereignty in the state resides - -103. In such cases the truth generally is that the 'right,' on the -particular issue, has not yet formed itself - -104. But it does not follow that because the 'right' is on both -sides, one is not 'better' than the other; though this may be the case - -105. In such cases of disputed sovereignty the distinction of 'de -jure' and 'de facto' may be applied, though it is better to say that -the sovereignty is in abeyance - -106. The individual, having no 'right' to guide him, should take the -side whose success seems likely to be best for mankind - -107. _(b)_ Another case is where there is no legal way of getting -a bad law repealed. Here it is a question, not of _right_, but of -_duty_, to resist the sovereign - -108. Nor is it a question of the right of a majority, _as a -majority_, to resist: it may be the duty of a helpless minority - -109. Some general questions which the good citizen may put to himself -in such dilemmas - -110. They can, indeed, seldom be applied by the agents at the time as -they can be after the event - -111. In simple cases we may judge of the right or wrong of an act by -the character which it expresses, but generally we can only judge -them by its results - -112. All that the historian can say is that on the whole the best -character is likely to produce the best results, notwithstanding -various appearances to the contrary. - - G. _Will, not force, is the basis of the state._ - -113. The doctrines which explain political obligation by contract -agree in treating sovereign and subject apart, whereas they are -correlative - -114. For the desire for freedom in the individual is no real desire -unless he is one of a society which recognises it. (Slaves are not a -real exception to this) - -115. And without an authority embodied in civil institutions he would -not have the elementary idea of right which enables him to question -the authority - -116. But the theory of contract expresses, in a confused way, the -truth that only through the common recognition of a common good, and -its embodiment in institutions, is morality possible - -117. Thus morality and political subjection have a common source. - -118. And _both_ imply the twofold conception, _(a)_ 'I _must_ though -I do not like,' _(b)_ 'I must _because_ it is for the common good -which is also my good' - -119. It is a farther and difficult question, how far the sense -of common interest can be kept alive either in the government or -subjects, unless the people participates directly in legislation - -120. And this suggests the objection, Is it not trifling with words -to speak of political subjection in modern states as based on the -_will_ of the subjects? - -121. We must admit _(a)_ that the idea of the state as serving a -common interest is only _partially_ realised, even by the most -enlightened subject, though so far as realised it is what makes him a -loyal subject - -122. _(b)_ That if he is to be an intelligent patriot as well as a -loyal subject, he must take a personal part in the work of the state - -123. And _(c)_ that even then his patriotism will not be a passion -unless it includes a feeling for the state analogous to that which he -has for his family and home - -124. But are we not again assuming what was disputed, viz. that a -sense of its serving a common interest is necessary to the existence -of the state? - -125. Observe that the idea of an end or function, realised by -agencies unconscious of it and into which it cannot be resolved, is -already implicit even if the state be treated as a 'natural organism' - -126. Such a treatment, however, would ignore the distinction between -the 'natural' and the 'human' or 'moral' agencies which have operated -in the production of states - -127. It may be objected that these 'human' agencies are not -necessarily 'moral,' but on the contrary are often selfish - -128. But though human motives are never unalloyed, they only produce -good results so far as they are fused with and guided by some -unselfish element - -129. If e.g. we would form a _complete_ estimate of Napoleon, we must -consider not only his ambition but the _particular form_ in which his -ambition worked - -130. And further reflect that the _idiosyncrasy_ of such men plays -but a small part in the result, which is mainly due to agencies of -which they are only the most conspicuous instruments - -131. Thus an ideal motive may co-operate with the motives of selfish -men, and only through such co-operation are they instrumental for good - -132. The fact that the state implies a supreme coercive power gives -colour to the view that it is based on coercion; whereas the coercive -power is only supreme because it is exercised in a state, i.e. -according to some system of law, written or customary - -133. In the absence of any other name, 'state' is the best for a -society in which there is such a system of law and a power to enforce -it - -134. A state, then, is not an aggregate of individuals under -a sovereign, but a society in which the rights of men already -associated in families and tribes are defined and harmonised - -135. It developes as the absorption of fresh societies or the -extended intercourse between its members widens the range of common -interests and rights - -136. The point to be insisted on is that force has only formed states -so far as it has operated in and through a pre-existing medium of -political, tribal, or family 'rights'. - - H. _Has the citizen rights against the state?_ - -137. As long as power of compulsion is made the essence of the state, -political obligation cannot be explained either by the theory of -'consent,' or by that which derives all right from the sovereign - -138. The state presupposes rights, rights which may be said to belong -to the 'individual' if this mean 'one of a society of individuals' - -139. A right may be _analysed_ into a claim of the individual upon -society and a power conceded to him by society, but really the claim -and the concession are sides of one and the same common consciousness - -140. Such common consciousness of interests is the ground of the -'natural right' of slaves and of the members of other states - -141. But though in this way there may be rights outside the state, -the members of a state derive the rights which they have as members -of other associations from the state, and have no rights against it - -142. i.e. as they derive their rights from their membership in the -state, they have no right to disobey the law unless it be for the -interest of the state - -143. And even then only if the law violates some interest which is -_implicitly acknowledged_ by the conscience of the community - -144. It is a farther question when the attempt to get a law repealed -should be exchanged for active resistance to it - -145. e.g. should a slave be befriended against the law? The slave has -as a man certain rights which the state cannot extinguish, and by -denying which it forfeits its claim upon him - -146. And it may be held that the claim of the slave upon the citizen, -as a man, overrides the claim of the state upon him, as a citizen - -147. Even here, however, the law ought to be obeyed, supposing that -its violation tended to bring about general anarchy. - - I. _Private rights. The right to life and liberty._ - -148. There are rights which men have as members of associations, -which come to be comprised in the state, but which also exist -independently of it - -149. These are 'private' rights, divided by Stephen into _(a)_ -personal, _(b)_ rights of property, _(c)_ rights in private relations - -150. _All_ rights are 'personal'; but as a man's body is the -condition of his exercising rights at all, the rights of it may be -called 'personal' in a special sense - -151. The right of 'life and liberty' (better, of 'free life'), being -based on capacity for society, belongs _in principle_ to man as man, -though this is only gradually _recognised_ - -152. At first it belongs to man as against other members of his -family or tribe, then as against other tribes, then as against other -citizens, which in antiquity still implies great limitations - -153. Influences which have helped to break down these limitations are -_(a)_ Roman equity, _(b)_ Stoicism, _(c)_ the Christian idea of a -universal brotherhood - -154. This last is the logical complement of the idea that man as such -has a right to life; but the right is only _negatively recognised_ in -modern Christendom - -155. It is ignored e.g. in war, nor is much done to enable men to -fulfil their capacities as members of humanity - -156. Four questions as to the relation of the state to the right of -man as man to free life. - - K. _The right of the state over the individual in war._ - -157. (1) Has the state a right to override this right in war? It must -be admitted that war is _not_ 'murder,' either on the part of those -who fight or of those who cause the war - -158. Yet it may be a violation of the right of life. It does not -prove it not to be so, that _(a)_ those who kill do not intend to -kill anyone in particular - -159. Or that _(b)_ those who are killed have incurred the risk -voluntarily. Even if they have, it does not follow that they had a -'right' to do so - -160. It may be said that the right to physical life may be overridden -by a right arising from the exigencies of moral life - -161. But this only shifts the blame of war to those who are -responsible for those exigencies; it remains a wrong all the same - -162. But in truth most wars of the last 400 years have _not_ been -wars for political liberty, but have arisen from dynastic ambition or -national vanity - -163. Admitting, then, that virtue may be called out by war and that -it may be a factor in human progress, the destruction of life in it -is always a wrong - -164. 'But if it be admitted that war may do good, may not those who -originate it have the credit of this?' - -165. If they really acted from desire to do good, their share in the -wrong is less; but in any case the fact that war was the only means -to the good was due to human agency and was a wrong - -166. (2) (See sec. 157). Hence it follows that the state, so far as -it is true to its principle, cannot have to infringe the rights of -men as men by conflicts with other states - -167. It is not because states exist, but because they do not fulfil -their functions as states in maintaining and harmonising general -rights, that such conflicts are necessary - -168. This is equally true of conflicts arising from what are called -'religious' grounds - -169. Thus no state, as such, is _absolutely_ justified in doing a -wrong to mankind, though a particular state may be conditionally -justified - -170. It may be objected that such a 'cosmopolitan' view ignores the -individuality of states, and could only be realised if they wore all -absorbed in a universal empire - -171. It is true that public spirit, to be real, must be national; but -the more a nation becomes a true state, the more does it find outlets -for its national spirit other than conflicts with other nations - -172. In fact the identification of patriotism with military -aggressiveness is a survival from a time when states in the full -sense did not exist - -173. And our great standing armies are due, not to the development -of a system of states, but to circumstances which witness to the -shortcomings of that system - -174. The better the organisation of each state, the greater is the -freedom of communication with others, especially in trade, which, -beginning in self-interest, may lead to the consciousness of a higher -bond - -175. As compared with individuals, any bonds between nations must -be weak; on the other hand, governments have less temptation than -individuals to deal unfairly with one another. - - L. _The right of the state to punish._ - -176. (3) (See sec. 156). What right has the state to punish? The -right to live in a community rests on the capacity to act for the -common good, and implies the right to protect such action from -interference - -177. A detailed theory of punishment implies a detailed theory of -rights. Here we can only deal with principles - -178. Is punishment _retributive_? Not in the sense that it carries on -a supposed 'right' of private vengeance, for no such 'right' can exist - -179. The most rudimentary 'right' of vengeance implies social -recognition and regulation, in early times by the family - -180. And its development up to the stage at which the state alone -punishes is the development of a principle implied from the first - -181. But if punishment excludes private vengeance, how can it be -retributory at all? And how can a wrong _to society_ be requited? - -182. When a wrong is said to be 'done to society,' it does not mean -that a feeling of vindictiveness is excited in the society - -183. The popular indignation against a great criminal is an -expression, not of individual desire for vengeance, but of the demand -that the criminal should have his due - -184. And this does not mean an equivalent amount of suffering; nor -such suffering as has been found by experience to deter men from the -crime - -185. Punishment, to be _just_, implies _(a)_ that the person punished -can understand what _right_ means, and _(b)_ that it is some -understood _right_ that he has violated - -186. He will then recognise that the punishment is his own act -returning on himself; (it is in a different sense that the physical -consequences of immorality are spoken of as a 'punishment') - -187. Punishment may be said to be_ preventive_, if it be remembered -_(a)_ that _what_ it 'prevents' must be the violation of a real -right, and _(b)_ that the _means by which_ it 'prevents' must be -really necessary - -188. Does our criterion of the justice of punishment give any -practical help in apportioning it? - -189. The justice of punishment depends on the justice of the system -of rights which it is to maintain - -190. The idea that 'just' punishment is that which = the crime -in amount confuses retribution for the wrong to society with -compensation for damages to the individual - -191. 'But why not hold that the pain of the punishment ought to = the -moral guilt of the crime?' - -192. Because the state cannot gauge either the one or the other; and -if it could, it would have to punish every case differently - -193. In truth the state has regard in punishing, not primarily to the -individuals concerned, but to the future prevention of the crime by -associating terror with it in the general imagination - -194. The account taken of 'extenuating circumstances' may be -similarly explained; i.e. the act done under them requires little -terror to prevent it from becoming general - -195 'But why avoid the simpler explanation, that extenuating -circumstances are held to diminish the _moral guilt_ of the act?' - -196. Because _(a)_ the state cannot ascertain the _degree_ of moral -guilt involved in a crime; _(b)_ if it tries to punish immorality -(proper), it will check disinterested moral effort - -197. Punishment, however, may be truly held to express the 'moral -disapprobation' of society, but it is to the external side of action -that the disapprobation is directed - -198. The principle that punishment should be regulated by the -importance of the right violated explains the severity with which -'culpable negligence is punished - -199. And the punishment of crimes done in drunkenness illustrates the -same principle - -200. It also justifies the distinction between 'criminal' and 'civil' -injuries, (which is not a distinction between injuries to individuals -and to the community, for no 'right' is violated by injury done to an -individual _as such_) - -201. There would be no reason in associating terror with breaches of -a right which the offender either did not know that he was breaking -or which he could not help breaking - -202. When such ignorance and inability are culpable, it depends on -the seriousness of the wrong or the degree to which the civil suit -involves deterrent effects, whether they should be treated as crimes - -203. Historically, the state has interfered first through the civil -process; gradually, as public alarm gets excited, more and more -offences come to be treated as crimes - -204. Punishment must also be _reformatory_ (this being one way of -being preventive), i.e. it must regard the rights of the criminal - -205. Capital punishment is justifiable only _(a)_ if it can be shown -to be necessary to the maintenance of society, _(b)_ if there is -reason to suppose the criminal to be permanently incapable of rights - -206. Punishment, though _directly_ it aims at the maintenance of -rights, has indirectly a moral end, because rights are conditions of -moral well-being. - - M. _The right of the state to promote morality._ - -207. (4) (See sec. 156). The right of free life is coming to be more -and more recognised amongst us _negatively_; is it reasonable to do -so little _positively_ to make its exercise possible? - -208. First observe that the capacity for free life is a moral -capacity, i.e. a capacity for being influenced by a sense of common -interest - -209. This influence will only be weakened by substituting for it -that of law, but the state can do more than it usually does without -deadening spontaneous action; e.g. 'compulsory education' need not be -'compulsory' except to those who have no spontaneity to be deadened - -210. So too with interference with 'freedom of contract'; we must -consider not only those who are interfered with, but those whose -freedom is increased by the interference. - -N. _The right of the state in regard to property._ - -211. As to property two questions have to be kept distinct, _(a)_ -how there has come to be property, _(b)_ how there has come to be -a _right_ of property. Each of those again may be treated either -historically or metaphysically - -212. The confusion of those questions and methods has given rise -either to truisms or to irrelevant researches as to the nature of -property - -213. Property implies _(a)_ appropriation, i.e. an act of will, of a -permanent self demanding satisfaction and expression - -214. _(b)_ Recognition of the appropriation by others. This -recognition cannot be derived from contract (Grotius), or from a -supreme force (Hobbes) - -215. Locke rightly bases the right of property on the same ground as -the right to one's own person; but he does not ask what that ground is - -216. The ground is the same as that of the right of life, of which -property is the instrument, viz. the consciousness of a common -interest to which each man recognises every other man as contributing - -217. Thus the act of appropriation and the recognition of it -constitute one act of _will_, as that in which man seeks a good at -once common and personal - -218. The condition of the family or clan, in which e.g. land is held -in common, is not the negation, but on the contrary the earliest -expression of the right of property - -219. Its defect lies _(a)_ in the limited scope for free moral -development which it allows the associates, _(b)_ in the limited -range of moral relations into which it brings them - -220. But the expansion of the clan into the state has not brought -with it a corresponding emancipation of the individual. Is then the -existence of a practically propertyless class in modern states a -necessity, or an abuse? - -221. In theory, everyone who is capable of living for a common good -(whether he actually does so or not) ought to have the means for so -doing: these means are property - -222. But does not this theory of property imply freedom of -appropriation and disposition, and yet is it not just this freedom -which leads to the existence of a propertyless proletariate? - -223. Property, whether regarded as the appropriation of nature by men -of different powers, or as the means required for the fulfilment of -different social functions, _must_ be unequal - -224. Freedom of trade, another source of inequality, follows -necessarily from the same view of property: freedom of bequest is -more open to doubt - -225. It seems to follow from the general right of a man to provide -for his future, and (with certain exceptions) to be likely to secure -the best distribution; but it does _not_ imply the right of entail - -226. Returning to the question raised in sec. 220, observe _(a)_ that -accumulation by one man does not itself naturally imply deprivation -of other men, but rather the contrary - -227. Nor is the prevalence of great capitals and hired labour in -itself the cause of the bad condition of so many of the working -classes - -228. The cause is to be found, not in the right of property and -accumulation, but (partly at least) in the fact that the land has -been originally appropriated by conquest - -229. Hence _(a)_ the present proletariate inherit the traditions -of serfdom, and _(b)_ under landowning governments land has been -appropriated unjustifiably, i.e. in various ways prejudicial to the -common interest - -230. And further the masses crowded through these causes into large -towns have till lately had little done to improve their condition - -231. Whether, if the state did its duty, it would still be advisable -to limit bequest of land, is a question which must be differently -answered according to circumstances - -232. The objection to the appropriation by the state of 'unearned -increment' is that it is so hard to distinguish between 'earned' and -'unearned'. - - O._ The right of the state in regard to the family._ - -233. The rights of husband over wife and father over children are -_(a)_ like that of property in being rights against all the world, -_(b)_ unlike it in being rights over _persons_, and therefore -reciprocal - -234. The latter characteristic would be expressed by German writers -by saying that both the 'subject' and the 'object' of these rights -are persons - -235. Three questions about them: (1) What makes man capable of family -life? (2) How does it come to have rights? (3) What ought the form of -those rights to be? - -236. (1) The family implies the same effort after permanent -self-satisfaction as property, together with a permanent interest in -a particular woman and her children - -237. The capacity for this interest is essential to anything which -can be rightly called family life, whatever lower forms of life may -historically have preceded it - -238. (2) The rights of family life arise from the mutual recognition -of this interest by members of the same clan (in which the historical -family always appears as an element) - -239. Its development has been in the direction _(a)_ of giving _all_ -men and women the right to marry, _(b)_ of recognising the claims of -husband and wife to be _reciprocal_. Both these imply monogamy - -240. Polygamy excludes many men from marriage and makes the wife -practically not a wife, while it also prevents real reciprocity of -rights both between husband and wife and between parents and children - -241. The abolition of slavery is another essential to the development -of the true family life, in both the above respects - -242. (3) Thus the _right_ (as distinct from the _morality_) of family -life requires _(a)_ monogamy, _(b)_ duration through life, _(c)_ -terminability on the infidelity of husband or wife - -243. Why then should not adultery be treated as a crime? Because -(unlike other violations of right) it is generally in the public -interest that it should be condoned if the injured person is willing -to condone it - -244. Nor would the higher purposes of marriage be served by making -infidelity penal, for they depend on disposition, not on outward acts -or forbearances - -245. All that the state can do, therefore, is to make divorce for -adultery easy, and to make marriage as serious a matter as possible - -246. _(b)_ Should divorce be allowed except for adultery? Sometimes -for lunacy or cruelty, but not for incompatibility, the object of the -state being to make marriage a 'consortium omnis vitae'. - - P._ Rights and virtues._ - -247. Outline of remaining lectures, on (1) rights connected with -the functions of government, (2) social virtues. (The antithesis of -'social' and 'self-regarding' is false) - -248. Virtues, being dispositions to exercise rights, are best -co-ordinated with rights. Thus to the right of life correspond those -virtues which maintain life against nature, force, and animal passion - -249. Similarly there are active virtues, corresponding to the -negative obligations imposed by property and marriage - -250. 'Moral sentiments' should be classified with the virtues, of -which they are weaker forms - -251. Although for clearness _obligations_ must be treated apart -from _moral duties_, they are really the outer and inner side of -one spiritual development, in the joint result of which the idea of -perfection is fulfilled. - -Supplement. - -Some Quotations rendered into English. - -ON THE DIFFERENT SENSES OF 'FREEDOM' AS APPLIED TO WILL AND TO THE -MORAL PROGRESS OF MAN. - -Note of the Editor, - -The lectures from which the following extract is taken were delivered -in the beginning of 1879, in continuation of the course in which the -discussion of Kant's moral theory occurred. The portions here printed -are those which were not embodied, at any rate in the same form, in -the _Prolegomena to Ethics_. See _Prolegomena to Ethics_, Book ii. -ch. i. sec. 100, Editor's note. - -ON THE DIFFERENT SENSES OF 'FREEDOM' AS APPLIED TO WILL AND TO THE -MORAL PROGRESS OF MAN. - -1. Since in all willing a man is his own object, the will is always -free. Or, more properly, a man in willing is necessarily free, -since willing constitutes freedom, [1] and 'free will' is the -pleonasm 'free freedom.' But while it is important to insist upon -this, it is also to be remembered that the nature of the freedom -really differs--the freedom means quite different things--according -to the nature of the object which the man makes his own, or with -which he identifies himself. It is one thing when the object in -which self-satisfaction is sought is such as to prevent that -self-satisfaction being found, because interfering with the -realisation of the seeker's possibilities or his progress towards -perfection: it is another thing when it contributes to this end. In -the former case the man is a free agent in the act, because through -his identification of himself with a certain desired object--through -his adoption of it as his good--he makes the motive which determines -the act, and is accordingly conscious of himself as its author. But -in another sense he is not free, because the objects to which his -actions are directed are objects in which, according to the law of -his being, satisfaction of himself is not to be found. His will to -arrive at self-satisfaction not being adjusted to the law which -determines where this self-satisfaction is to be found, he may be -considered in the condition of a bondsman who is carrying out the -will of another, not his own. From this bondage he emerges into real -freedom, not by overcoming the law of his being, not by getting -the better of its necessity,--every fancied effort to do so is but -a new exhibition of its necessity,--but by making its fulfilment -the object of his will; by seeking the satisfaction of himself in -objects in which he believes it _should be_ found, and seeking -it in them _because_ he believes it should be found in them. For -the objects so sought, however various otherwise, have the common -characteristic that, because they are sought in such a spirit, in -them self-satisfaction is to be found; not the satisfaction of this -or that desire, or of each particular desire, but that satisfaction, -otherwise called peace or blessedness, which consists in the whole -man having found his object; which indeed we never experience in -its fulness, which we only approach to fall away from it again, but -of which we know enough to be sure that we only fail to attain it -because we fail to seek it in the fulfilment of the law of our being, -because we have not brought ourselves to 'gladly do and suffer what -we must.' - -To the above statement several objections may be made. They will -chiefly turn on two points; _(a)_ the use made of the term 'freedom'; -_(b)_ the view that a man is subject to a law of his being, in virtue -of which he at once seeks self-satisfaction, and is prevented from -finding it in the objects which he actually desires, and in which he -ordinarily seeks it. - -[1] In that sense in which 'freedom' expresses a state of the soul, -as distinct from a civil relation. - -2. As to the sense given to 'freedom,' it must of course be admitted -that every usage of the term to express anything but a social and -political relation of one man to others involves a metaphor. Even in -the original application its sense is by no means fixed. It always -implies indeed some exemption from compulsion by others, but the -extent and conditions of this exemption, as enjoyed by the 'freeman' -in different states of society, are very various. As soon as the term -'freedom' comes to be applied to anything else than an established -relation between a man and other men, its sense fluctuates much more. -Reflecting on their consciousness, on their 'inner life' (i.e. their -life as viewed from within), men apply to it the terms with which -they are familiar as expressing their relations to each other. In -virtue of that power of self-distinction and self-objectification, -which he expresses whenever he says 'I,' a man can set over against -himself his whole nature or any of its elements, and apply to the -relation thus established in thought a term borrowed from relations -of outward life. Hence, as in Plato, the terms 'freedom' and -'bondage' may be used to express a relation between the man on the -one side, as distinguishing himself from all impulses that do not -tend to his true good, and those impulses on the other. He is a -'slave' when they are masters of him, 'free' when master of them. -The metaphor in this form was made further use of by the Stoics, and -carried on into the doctrines of the Christian Church. Since there is -no kind of impulse or interest which a man cannot so distinguish from -himself as to present it as an alien power, of which the influence on -him is bondage, the particular application of the metaphor is quite -arbitrary. It may come to be thought that the only freedom is to be -found in a life of absolute detachment from all interests; a life -in which the pure ego converses solely with itself or with a God, -who is the same abstraction under another name. This is a view into -which both saints and philosophers have been apt to fall. It means -practically, so far as it means anything, absorption in some one -interest with which the man identifies himself in exclusion of all -other interests, which he sets over against himself as an influence -to be kept aloof. - -With St. Paul the application of the metaphor has a special character -of its own. With him 'freedom' is specially freedom from the law, -from ordinances, from the fear which these inspire,--a freedom which -is attained through the communication of what he calls the 'spirit -of adoption' or 'son-ship.' The law, merely as law or as an external -command, is a source of bondage in a double sense. Presenting to man -a command which yet it does not give him power to obey, it destroys -the freedom of the life in which he does what he likes without -recognising any reason why he should not (the state of which St. -Paul says 'I was alive without the law once'); it thus puts him in -bondage to fear, and at the same time, exciting a wish for obedience -to itself which other desires (φρόνημα σαρκός) [1] prevent from being -accomplished, it makes the man feel the bondage of the flesh. 'What -I will, that I do not'; there is a power, the flesh, of which I am -the slave, and which prevents me from performing my will to obey the -law. Freedom (also called 'peace,' and 'reconciliation') comes when -the spirit expressed in the law (for the law is itself 'spiritual' -according to St. Paul; the 'flesh' through which it is weak is mine, -not the law's) becomes the principle of action in the man. To the -man thus delivered, as St. Paul conceives him, we might almost apply -phraseology like Kant's. 'He is free because conscious of himself as -the author of the law which he obeys.' He is no longer a servant, but -a son. He is conscious of union with God, whose will as an external -law he before sought in vain to obey, but whose 'righteousness is -fulfilled' in him now that he 'walks after the spirit.' What was -before 'a law of sin and death' is now a 'law of the spirit of life.' -(See _Epistle to the Romans_, viii.) - -[1] [Greek φρόνημα σαρκός (phronima sarkos) = carnal mind (KJV) Tr] - -3. But though there is a point of connection between St. Paul's -conception of freedom and bondage and that of Kant, which renders -the above phrase applicable in a certain sense to the 'spiritual -man' of St. Paul, yet the two conceptions are very different. Moral -bondage with Kant, as with Plato and the Stoics, is bondage to the -flesh. The heteronomy of the will is its submission to the impulse -of pleasure-seeking, as that of which man is not in respect of his -reason the author, but which belongs to him as a merely natural -being. A state of bondage to law, as such, he does not contemplate. -It might even be urged that Kant's 'freedom' or 'autonomy' of the -will, in the only sense in which he supposed it attainable by man, is -very much like the state described by St. Paul as that from which the -communication of the spirit brings deliverance,--the state in which -'I delight in the law of God after the inward man, but find another -law in my members warring with the law of my reason and bringing -me into captivity to the law of sin in my members.' For Kant seems -to hold that the will is actually 'autonomous,' i.e. determined by -pure consciousness of what should be, only in rare acts of the best -man. He argues rather for our being conscious of the possibility of -such determination, as evidence of an ideal of what the good will -is, than for the fact that anyone is actually so determined. And -every determination of the will that does not proceed from pure -consciousness of what should be he ascribes to the pleasure-seeking -which belongs to man merely as a 'Natur-wesen,' or as St. Paul might -say 'to the law of sin in his members.' What, it may be asked, is -such 'freedom,' or rather such consciousness of the possibility of -freedom, worth? May we not apply to it St. Paul's words, 'By the law -is the knowledge of sin'? The practical result to the individual of -that consciousness of the possibility of freedom which is all that -the autonomy of will, as really attainable by man, according to -Kant's view, amounts to, is to make him aware of the heteronomy of -his will, of its bondage to motives of which reason is not the author. - -4. This is an objection which many of Kant's statements of his -doctrine, at any rate, fairly challenge. It was chiefly because he -seemed to make freedom [1] an unrealised and unrealisable state, -that his moral doctrine was found unsatisfactory by Hegel. Hegel -holds that freedom, as the condition in which the will is determined -by an object adequate to itself, or by an object which itself as -reason constitutes, is realised in the state. He thinks of the state -in a way not familiar to Englishmen, a way not unlike that in which -Greek philosophers thought of the πόλις, [2] as a society governed -by laws and institutions and established customs which secure the -common good of the members of the society--enable them to make the -best of themselves--and are recognised as doing so. Such a state -is 'objective freedom'; freedom is realised in it because in it -the reason, the self-determining principle operating in man as his -will, has found a perfect expression for itself (as an artist may -be considered to express himself in a perfect work of art); and the -man who is determined by the objects which the well-ordered state -presents to him is determined by that which is the perfect expression -of his reason, and is thus free. - -[1] In the sense of 'autonomy of rational will,' or determination by -an object which reason constitutes, as distinct from determination by -an object which the man makes his own; this latter determination Kant -would have recognised as characteristic of every human act, properly -so called. - -[2] [Greek πόλις (polis) = city-state Tr.] - -5. There is, no doubt, truth in this view. I have already tried to -show [1] how the self-distinguishing and self-seeking consciousness -of man, acting in and upon those human wants and ties and affections -which in their proper human character have as little reality apart -from it as it apart from them, gives rise to a system of social -relations, with laws, customs, and institutions corresponding; and -how in this system the individual's consciousness of the absolutely -desirable, of something that should be, of an ideal to be realised -in his life, finds a content or object which has been constituted -or brought into being by that consciousness itself as working -through generations of men; how interests are thus supplied to the -man of a more concrete kind than the interest in fulfilment of a -universally binding law because universally binding, but which yet -are the product of reason, and in satisfying which he is conscious -of attaining a true good, a good contributory to the perfection -of himself and his kind. There is thus something in all forms of -society that tends to the freedom [2] at least of some favoured -individuals, because it tends to actualise in them the possibility of -that determination by objects conceived as desirable in distinction -from objects momentarily desired, which is determination by reason. -[3] To put it otherwise, the effect of his social relations on a man -thus favoured is that, whereas in all willing the individual seeks to -satisfy himself, this man seeks to satisfy himself, not as one who -feels this or that desire, but as one who conceives, whose nature -demands, a permanent good. So far as it is thus in respect of his -rational nature that he makes himself an object to himself, his will -is autonomous. This was the good which the ideal πόλις, as conceived -by the Greek philosophers, secured for the true πολίτης, the man who, -entering into the idea of the πόλις, was equally qualified ἄρχειν -καὶ ἄρχεσθαι. [4] No doubt in the actual Greek πόλις there was some -tendency in this direction, some tendency to rationalise and moralise -the citizen. Without the real tendency the ideal possibility would -not have suggested itself. And in more primitive forms of society, so -far as they were based on family or tribal relations, we can see that -the same tendency must have been at work, just as in modern life the -consciousness of his position as member or head of a family, wherever -it exists, necessarily does something to moralise a man. In modern -Christendom, with the extension of citizenship, the security of -family life to all men (so far as law and police can secure it), the -establishment in various forms of Christian fellowship of which the -moralising functions grow as those of the magistrate diminish, the -number of individuals whom society awakens to interests in objects -contributory to human perfection tends to increase. So far the modern -state, in that full sense in which Hegel uses the term (as including -all the agencies for common good of a law-abiding people), does -contribute to the realisation of freedom, if by freedom we understand -the autonomy of the will or its determination by rational objects, -objects which help to satisfy the demand of reason, the effort after -self-perfection. - -[1] [In a previous course of lectures. See _Prolegomena to Ethics_, -III. iii. RLN] - -[2] In the sense of 'autonomy of will.' - -[3] [This last clause is queried in the MS. RLN] - -[4] [Greek πόλις (polis) = city-state, πολίτης (polites) = citizen, -ἄρχειν καὶ ἄρχεσθαι (archein kai archesthai) = to rule and to be -ruled Tr] - -6. On the other hand, it would seem that we cannot significantly -speak of freedom except with reference to individual persons; that -only in them can freedom be realised; that therefore the realisation -of freedom in the state can only mean the attainment of freedom by -individuals through influences which the state (in the wide sense -spoken of) supplies,--'freedom' here, as before, meaning not the mere -self-determination which renders us responsible, but determination by -reason, 'autonomy of the will'; and that under the best conditions -of any society that has ever been such realisation of freedom is -most imperfect. To an Athenian slave, who might be used to gratify a -master's lust, it would have been a mockery to speak of the state as -a realisation of freedom; and perhaps it would not be much less so to -speak of it as such to an untaught and under-fed denizen of a London -yard with gin-shops on the right hand and on the left. What Hegel -says of the state in this respect seems as hard to square with facts -as what St. Paul says of the Christian whom the manifestation of -Christ has transferred from bondage into 'the glorious liberty of the -sons of God.' In both cases the difference between the ideal and the -actual seems to be ignored, and tendencies seem to be spoken of as -if they were accomplished facts. It is noticeable that by uncritical -readers of St. Paul the account of himself as under the law (in -_Romans_ vii.), with the 'law of sin in his members warring against -the law of his reason,' is taken as applicable to the regenerate -Christian, though evidently St. Paul meant it as a description of the -state from which the Gospel, the 'manifestation of the Son of God -in the likeness of sinful flesh,' set him free. They are driven to -this interpretation because, though they can understand St. Paul's -account of his deliverance as an account of a deliverance achieved -for them but not in them, or as an assurance of what is to be, they -cannot adjust it to the actual experience of the Christian life. In -the same way Hegel's account of freedom as realised in the state does -not seem to correspond to the facts of society as it is, or even -as, under the unalterable conditions of human nature, it ever could -be; though undoubtedly there is a work of moral liberation, which -society, through its various agencies, is constantly carrying on for -the individual. - -7. Meanwhile it must be borne in mind that in all these different -views as to the manner and degree in which freedom is to be attained, -'freedom' does not mean that the man or will is undetermined, nor -yet does it mean mere self-determination, which (unless denied -altogether, as by those who take the strictly naturalistic view -of human action) must be ascribed equally to the man whose will -is heteronomous or vicious, and to him whose will is autonomous; -equally to the man who recognises the authority of law in what St. -Paul would count the condition of a bondman, and to him who fulfils -the righteousness of the law in the spirit of adoption. It means -a particular kind of self-determination; the state of the man who -lives indeed for himself, but for the fulfilment of himself as a -'giver of law universal' (Kant); who lives for himself, but only -according to the true idea of himself, according to the law of his -being, 'according to nature' (the Stoics); who is so taken up into -God, to whom God so gives the spirit, that there is no constraint -in his obedience to the divine will (St. Paul); whose interests, -as a loyal citizen, are those of a well-ordered state in which -practical reason expresses itself (Hegel). Now none of these modes -of self-determination is at all implied in 'freedom' according -to the primary meaning of the term, as expressing that relation -between one man and others in which he is secured from compulsion. -All that is so implied is that a man should have power to do what -he wills or prefers. No reference is made to the nature of the will -or preference, of the object willed or preferred; whereas according -to the usage of 'freedom' in the doctrines we have just been -considering, it is not constituted by the mere fact of acting upon -preference, but depends wholly on the nature of the preference, upon -the kind of object willed or preferred. - -8. If it were ever reasonable to wish that the usage of words had -been other than it has been (any more than that the processes of -nature were other than they are), one might be inclined to wish -that the term 'freedom' had been confined to the juristic sense of -the power to 'do what one wills': for the extension of its meaning -seems to have caused much controversy and confusion. But, after all, -this extension does but represent various stages of reflection upon -the self-distinguishing, self-seeking, self-asserting principle, of -which the establishment of freedom, as a relation between man and -man, is the expression. The reflecting man is not content with the -first announcement which analysis makes as to the inward condition -of the free man, viz. that he can do what he likes, that he has the -power of acting according to his will or preference. In virtue of the -same principle which has led him to assert himself against others, -and thus to cause there to be such a thing as (outward) freedom, -he distinguishes himself from his preference, and asks how he is -related to it, whether he determines it or how it is determined. Is -he free to will, as he is free to act; or, as the act is determined -by the preference, is the preference determined by something else? -Thus Locke (_Essay_, II. 21) begins with deciding that freedom means -power to do or forbear from doing any particular act upon preference, -and that, since the will is merely the power of preference, the -question whether the will is free is an unmeaning one (equivalent -to the question whether one power has another power); that thus the -only proper question is whether a man (not his will) is free, which -must be answered affirmatively so far as he has the power to do or -forbear, as above. But he recognises the propriety of the question -whether a man is free to will as well as to act. He cannot refuse to -carry back the analysis of what is involved in a man's action beyond -the preference of one possible action to another, and to inquire -what is implied in the preference. It is when this latter question -is raised, that language which is appropriate enough in a definition -of outward or juristic freedom becomes misleading. It having been -decided that the man civilly free has power over his actions, to do -or forbear according to preference, it is asked whether he has also -power to prefer. - -9. But while it is proper to ask whether in any particular case a -man has power over his actions, because his nerves and limbs and -muscles may be acted upon by another person or a force which is not -he or his, there is no appropriateness in asking the question in -regard to a preference or will, because this cannot be so acted on. -If so acted on, it would not be a will or preference. There is no -such thing as a will which a man is not conscious of as belonging to -himself, no such thing as an act of will which he is not conscious -of as issuing from himself. To ask whether he has power over it, -or whether some other power than he determines it, is like asking -whether he is other than himself. Thus the question whether a man, -having power to act according to his will, or being free to act, -has also power over his will, or is free to will, has just the same -impropriety that Locke points out in the question whether the will is -free. The latter question, on the supposition that there is power to -enact the will,--a supposition which is necessarily made by those who -raise the ulterior question whether there is power over the will,--is -equivalent, as Locke sees, to a question whether freedom is free. -For a will which there is power of enacting constitutes freedom, and -therefore to ask whether it is free is like asking (to use Locke's -instance) whether riches are rich ('rich' being a denomination from -the possession of riches, just as 'free' is a denomination from the -possession of freedom, in the sense of a will which there is power -to enact). But if there is this impropriety in the question whether -the will is free, there is an equal one in the question which Locke -entertains, viz. whether man is free to will, or has power over his -will. It amounts to asking whether a certain power is also a power -over itself: or, more precisely, whether a man possessing a certain -power--that which we call freedom--has also the same power over that -power. - -10. It may be said perhaps that we are here pressing words too -closely; that it is of course understood, when it is asked whether -a man has power over his will, that 'power' is used in a different -sense from that which it bears when it is asked whether he has power -to enact his will: that 'freedom,' in like manner, is understood to -express a different kind of power or relation when we ask whether a -man is free to will, and when we ask whether he is free to act. But -granting that all this has been understood, the misleading effects -of the question in the form under consideration ('Is a man free -to will as well as to act?' 'Has he power over his will?') remain -written in the history of the 'free-will controversy.' It has mainly -to answer for two wrong ways of thinking on the subject; _(a)_ for -the way of thinking of the determining motive of an act of will, -the object willed, as something apart from the will or the man -willing, so that in being determined by it the man is supposed not -to be self-determined, but to be determined as one natural event by -another, or at best as a natural organism by the forces acting on it: -_(b)_, for the view that the only way of escaping this conclusion is -to regard the will as independent of motives, as a power of deciding -between motives without any motive to determine the decision, which -must mean without reference to any object willed. A man, having (in -virtue of his power of self-distinction and self-objectification) -presented his will to himself as something to be thought about, and -being asked whether he has power over it, whether he is free in -regard to it as he is free against other persons and free to use his -limbs and, through them, material things, this way or that, must -very soon decide that he is not. His will is himself. His character -necessarily shows itself in his will. We have already, in a previous -lecture, [1] noticed the practical fallacy involved in a man's saying -that he cannot help being what he is, as if he were controlled by -external power; but he being what he is, and the circumstances being -what they are at any particular conjuncture, the determination of the -will is already given, just as an effect is given in the sum of its -conditions. The determination of the will might be different, but -only through the man's being different, But to ask whether a man has -power over determinations of his will, or is free to will as he is to -act, as the question is commonly understood and as Locke understood -it, is to ask whether, the man being what at any time he is, it -is still uncertain (1) whether he will choose or forbear choosing -between certain possible courses of action, and (2) supposing him to -choose one or other of them, which he will choose. - -[1] [_Prolegomena to Ethics_, Sections 107, ff.--RLN] - -11. Now we must admit that there is really no such uncertainty. -The appearance of it is due to our ignorance of the man and the -circumstances. If, however, because this is so, we answer the -question whether a man has power over his will, or is free to -will, in the negative, [1] we at once suggest the conclusion that -something else has power over it, viz. the strongest motive. We -ignore the truth that in being determined by a strongest motive, -in the only sense in which he is really so determined, the man (as -previously explained) [2] is determined by himself, by an object of -his own making, and we come to think of the will as determined like -any natural phenomenon by causes external to it. All this is the -consequence of asking questions about the relation between a man and -his will in terms only appropriate to the relation between the man -and other men, or to that between the man and his bodily members or -the materials on which he acts through them. - -[1] Instead of saying (as we should) that it is one of those -inappropriate questions to which there is no answer; since a man's -will is himself, and 'freedom' and 'power' express relations between -a man and something other than himself. - -[2] [See _Prolegomena to Ethics_, Section 105.--RLN] - -12. On the other side the consciousness of self-determination resists -this conclusion; but so long as we start from the question whether a -man has power over his will, or is free to will as well as to act, -it seems as if the objectionable conclusion could only be avoided by -answering this question in the affirmative. But to say that a man has -power over determinations of his will is naturally taken to mean that -he can change his will while he himself remains the same; that given -his character, motives, and circumstances as these at any time are, -there is still something else required for the determination of his -will; that behind and beyond the will as determined by some motive -there is a will, itself undetermined by any motive, that determines -what the determining motive shall be,--that 'has power over' his -preference or choice, as this has over the motion of his bodily -members. But an unmotived will is a will without an object, which is -nothing. The power or possibility, beyond any actual determination of -the will, of determining what that determination shall be is a mere -negation of the actual determination. It is that determination as it -becomes after an abstraction of the motive or object willed, which -in fact leaves nothing at all. If those moral interests, which are -undoubtedly involved in the recognition of the distinction between -man and any natural phenomenon, are to be made dependent on belief in -such a power or abstract possibility, the case is hopeless. - -13. The right way out of the difficulty lies in the discernment -that the question whether a man is free to will, or has power over -the determinations of his will, is a question to which there is no -answer, because it is asked in inappropriate terms; in terms that -imply some agency beyond the will which determines what the will -shall be (as the will itself is an agency beyond the motions of the -muscles which determines what those motions shall be), and that as -to this agency it may be asked whether it does or does not lie in -the man himself. In truth there is no such agency beyond the will -and determining how the will shall be determined; not in the man, -for the will _is_ the self-conscious man; not elsewhere than in the -man, not outside him, for the self-conscious man has no outside. He -is not a body in space with other bodies elsewhere in space acting -upon it and determining its motions. The self-conscious man is -determined by objects, which in order to be objects must already be -in consciousness, and in order to be _his_ objects, the objects which -determine him, must already have been made his own. To say that they -have power over him or his will, and that he or his will has power -over them, is equally misleading. Such language is only applicable -to the relation between an agent and patient, when the agent and -the patient (or at any rate the agent) can exist separately. But -self-consciousness and its object, will and its object, form a single -individual unity. Without the constitutive action of man or his will -the objects do not exist; apart from determination by some object -neither he nor his will would be more than an unreal abstraction. - -14. If, however, the question is persisted in, 'Has a man power over -the determinations of his will?' we must answer both 'yes' and 'no.' -'No,' in the sense that he is not other than his will, with ability -to direct it as the will directs the muscles. 'Yes,' in the sense -that nothing external to him or his will or self-consciousness has -power over them. 'No,' again, in the sense that, given the man and -his object as he and it at any time are, there is no possibility of -the will being determined except in one way, for the will is already -determined, being nothing else than the man as directed to some -object. 'Yes,' in the sense that the determining object is determined -by the man or will just as much as the man or will by the object. The -fact that the state of the man, on which the nature of his object at -any time depends, is a result of previous states, does not affect -the validity of this last assertion, since (as we have seen [1]) -all these states are states of a self-consciousness from which all -alien determination, all determination except through the medium of -self-consciousness, is excluded. - -[1] [_Prolegomena to Ethics_, Section 102. RLN] - -15. In the above we have not supposed any account to be taken of -the character of the objects willed in the application to the -will itself of the question 'free or not free,' which is properly -applied only to an action (motion of the bodily members) or to a -relation between one man and other men. Those who unwisely consent -to entertain the question whether a man is free to will or has -power over determinations of his will, and answer it affirmatively -or negatively, consider their answer, whether 'yes' or 'no,' to be -equally applicable whatever the nature of the objects willed. If -they decide that a man is 'free to will,' they mean that he is so in -all cases of willing, whether the object willed be a satisfaction of -animal appetite or an act of heroic self-sacrifice; and conversely, -if they decide that he is not free to will, they mean that he is not -so even in cases when the action is done upon cool calculation or -upon a principle of duty, as much as when it is done on impulse or -in passion. Throughout the controversy as to free will that has been -carried on among English psychologists this is the way in which the -question has been commonly dealt with. The freedom, claimed or denied -for the will, has been claimed or denied for it irrespectively of -those objects willed, on the nature of which the goodness or badness -of the will depends. - -16. On the other hand, with the Stoics, St. Paul, Kant, and Hegel, as -we have seen, the attainment of freedom (at any rate of the reality -of freedom, as distinct from some mere possibility of it which -constitutes the distinctive human nature) depends on the character of -the objects willed. In all these ways of thinking, however variously -the proper object of will is conceived, it is only as directed to -this object, and thus (in Hegelian language) corresponding to its -idea, that the will is supposed to be free. The good will is free, -not the bad will. Such a view of course implies some element of -identity between good will and bad will, between will as not yet -corresponding to its idea and will as so corresponding. St. Paul -indeed, not being a systematic thinker and being absorbed in the -idea of divine grace, is apt to speak as if there were nothing in -common between the carnal or natural man (the will as in bondage to -the flesh) and the spiritual man (the will as set free); just as -Plato commonly ignores the unity of principle in all a man's actions, -and represents virtuous actions as coming from the God in man, -vicious actions from the beast. Kant and Hegel, however,-- though -they do not consider the will as it is in every man, good and bad, -to be free; though Kant in his later ethical writings, and Hegel -(I think) always, confine the term 'Wille' to the will as having -attained freedom or come to correspond to its idea, and apply the -term 'Willkür' to that self-determining principle of action which -belongs to every man and is in their view the mere possibility, not -actuality, of freedom,--yet quite recognise what has been above -insisted on as the common characteristic of all willing, the fact -that it is not a determination from without, like the determination -of any natural event or agent, but the realisation of an object which -the agent presents to himself or makes his own, the determination -by an object of a subject which itself consciously determines that -object; and they see that it is only for a subject free in this sense -('an sich' but not 'fur sich,' δυνάμει but not ενεργείᾳ) [1] that the -reality of freedom can exist. - -[1] [Greek δυνάμει (dynamei) = potential, ενεργείᾳ (energiea) = -actuality Tr] - -17. Now the propriety or impropriety of the use of 'freedom' to -express the state of the will, not as directed to any and every -object, but only to those to which, according to the law of nature -or the will of God or its 'idea,' it should be directed, is a matter -of secondary importance. This usage of the term is, at any rate, -no more a departure from the primary or juristic sense than is -its application to the will as distinct from action in any sense -whatever. And certainly the unsophisticated man, as soon as the usage -of 'freedom' to express exemption from control by other men and -ability to do as he likes is departed from, can much more readily -assimilate the notion of states of the inner man described as bondage -to evil passions, to terrors of the law, or on the other hand as -freedom from sin and law, freedom in the consciousness of union -with God, or of harmony with the true law of one's being, freedom -of true loyalty, freedom in devotion to self-imposed duties, than -he can assimilate the notion of freedom as freedom to will anything -and everything, or as exemption from determination by motives, or -the constitution by himself of the motives which determine his will. -And there is so far less to justify the extension of the usage of -the term in these latter ways than in the former. It would seem -indeed that there is a real community of meaning between 'freedom' -as expressing the condition of a citizen of a civilised state, and -'freedom' as expressing the condition of a man who is inwardly -'master of himself.' That is to say, the practical conception by -a man ('practical' in the sense of having a tendency to realise -itself) of a self-satisfaction to be attained in his becoming what -he should be, what he has it in him to be, in fulfilment of the -law of his being,--or, to vary the words but not the meaning, in -attainment of the righteousness of God, or in perfect obedience to -self-imposed law,--this practical conception is the outcome of the -same self-seeking principle which appears in a man's assertion of -himself against other men and against nature ('against other men,' as -claiming their recognition of him as being what they are; 'against -nature,' as able to use it). This assertion of himself is the demand -for freedom, freedom in the primary or juristic sense of power to -act according to choice or preference. So far as such freedom is -established for any man, this assertion of himself is made good; -and such freedom is precious to him because it is an achievement -of the self-seeking principle. It is a first satisfaction of its -claims, which is the condition of all other satisfaction of them. -The consciousness of it is the first form of self-enjoyment, of the -joy of the self-conscious spirit in itself as in the one object of -absolute value. - -18. This form of self-enjoyment, however, is one which consists -essentially in the feeling by the subject of a possibility rather -than a reality, of what it has it in itself to become, not of what it -actually is. To a captive on first winning his liberty, as to a child -in the early experience of power over his limbs and through them over -material things, this feeling of a boundless possibility of becoming -may give real joy; but gradually the sense of what it is not, of the -very little that it amounts to, must predominate over the sense of -actual good as attained in it. Thus to the grown man, bred to civil -liberty in a society which has learnt to make nature its instrument, -there is no self-enjoyment in the mere consciousness of freedom as -exemption from external control, no sense of an object in which he -can satisfy himself having been obtained. - -Still, just as the demand for and attainment of freedom from external -control is the expression of that same self-seeking principle -from which the quest for such an object proceeds, so 'freedom' -is the natural term by which the man describes such an object to -himself,--describes to himself the state in which he shall have -realised his ideal of himself, shall be at one with the law which -he recognises as that which he ought to obey, shall have become all -that he has it in him to be, and so fulfil the law of his being -or 'live according to nature.' Just as the consciousness of an -unattainable ideal, of a law recognised as having authority but with -which one's will conflicts, of wants and impulses which interfere -with the fulfilment of one's possibilities, is a consciousness of -impeded energy, a consciousness of oneself as for ever thwarted and -held back, so the forecast of deliverance from these conditions is -as naturally said to be a forecast of 'freedom' as of peace' or -'blessedness.' Nor is it merely to a select few, and as an expression -for a deliverance really (as it would seem) unattainable under -the conditions of any life that we know, but regarded by saints -as secured for them in another world, and by philosophers as the -completion of a process which is eternally complete in God, that -'freedom' commends itself. To any popular audience interested in any -work of self-improvement (e.g. to a temperance-meeting seeking to -break the bondage to liquor), it is as an effort to attain freedom -that such work can be most effectively presented. It is easy to tell -such people that the term is being misapplied; that they are quite -'free' as it is, because every one can do as he likes so long as he -does not prevent another from doing so; that in any sense in which -there is such a thing as 'free will,' to get drunk is as much an -act of free will as anything else. Still the feeling of oppression, -which always goes along with the consciousness of unfulfilled -possibilities, will always give meaning to the representation of the -effort after any kind of self-improvement as a demand for 'freedom.' - -19. The variation in the meaning of 'freedom' having been thus -recognised and accounted for, we come back to the more essential -question as to the truth of the view which underlies all theories -implying that freedom is in some sense the goal of moral endeavour; -the view, namely, that there is some will in a man with which many -or most of his voluntary actions do not accord, a higher self that -is not satisfied by the objects which yet he deliberately pursues. -Some such notion is common to those different theories about freedom -which in the rough we have ascribed severally to the Stoics, St. -Paul, Kant, and Hegel. It is the same notion which was previously [1] -put in the form, 'that a man is subject to a law of his being, in -virtue of which he at once seeks self-satisfaction, and is prevented -from finding it in the objects which he actually desires, and in -which he ordinarily seeks it.' 'What can this mean?' it maybe asked. -'Of course we know that there are weak people who never succeed -in getting what they want, either in the sense that they have not -ability answering to their will, or that they are always wishing -for something which yet they do not will. But it would not be very -appropriate to apply the above formula to such people, for the man's -will to attain certain objects cannot be ascribed to the same law -of his being as the lack of ability to attain them, nor his wish -for certain objects to the same law of his being as those stronger -desires which determine his will in a contrary direction. At any -rate, if the proposition is remotely applicable to the man who is -at once selfish and unsuccessful, how can it be true in any sense -either of the man who is at once selfish and succeeds, who gets what -he wants (as is unquestionably the case with many people who live for -what _a priori_ moralists count unworthy objects), or of the man who -'never thinks about himself at all'? So far as the proposition means -anything, it would seem to represent Kant's notion, long ago found -unthinkable and impossible, the notion of there being two wills or -selves in a man, the 'pure' will or ego and the 'empirical' will or -ego, the pure will being independent of a man's actual desires and -directed to the fulfilment of a universal law of which it is itself -the giver, the empirical will being determined by the strongest -desire and directed to this or that pleasure. In this proposition the -'objects which the man actually desires and in which he ordinarily -seeks satisfaction' are presumably objects of what Kant called the -'empirical will,' while the 'law of his being' corresponds to Kant's -'pure ego.' But just as Kant must be supposed to have believed in -some identity between the pure and empirical will, as implied in the -one term 'will,' though he does not explain in what this identity -consists, so the proposition before us apparently ascribes man's -quest for self-satisfaction as directed to certain objects, to the -same law of his being which prevents it from finding it there. Is not -this nonsense?' - -[1] [Above, section 1 RLN] - -20. To such questions we answer as follows. The proposition before -us, like all the theories of moral freedom which we have noticed, -undoubtedly implies that the will of every man is a form of one -consciously self-realising principle, which at the same time is -not truly or fully expressed in any man's will. As a form of this -self-realising principle it may be called, if we like, a 'pure ego' -or 'the pure ego' of the particular person; as directed to this -or that object in such a way that it does not truly express the -self-realising principle of which it is a form, it may be called the -'empirical ego' of that person. But if we use such language, it must -be borne in mind that the pure and empirical egos are still not two -egos but one ego; the pure ego being the self-realising principle -considered with reference either to its idea, its possibility, what -it has in itself to become, the law of its being, or to some ultimate -actualisation of this possibility; the empirical ego being the same -principle as it appears in this or that state of character, which -results from its action, but does not represent that which it has -in itself to become, does not correspond to its idea or the law of -its being. By a consciously self-realising principle is meant a -principle that is determined to action by the conception of its own -perfection, or by the idea of giving reality to possibilities which -are involved in it and of which it is conscious as so involved; or, -more precisely, a principle which at each stage of its existence is -conscious of a more perfect form of existence as possible for itself, -and is moved to action by that consciousness. We must now explain a -little more fully how we understand the relation of the principle -in question to what we call our wills and our reason,--the will -and reason of this man and that,--and how we suppose its action to -constitute the progress of morality. - -21. By 'practical reason' we mean a consciousness of a possibility of -perfection to be realised in and by the subject of the consciousness. -By 'will' we mean the effort of a self-conscious subject to satisfy -itself. In God, so far as we can ascribe reason and will to Him, we -must suppose them to be absolutely united. In Him there can be no -distinction between possibility and realisation, between the idea -of perfection and the activity determined by it. But in men the -self-realising principle, which is the manifestation of God in the -world of becoming, in the form which it takes as will at best only -_tends_ to reconciliation with itself in the form which it takes as -reason. Self-satisfaction, the pursuit of which is will, is sought -elsewhere than in the realisation of that consciousness of possible -perfection, which is reason. In this sense the object of will does -not coincide with the object of reason. On the other hand, just -because it is self-satisfaction that is sought in all willing, and -because by a self-conscious and self-realising subject it is only -in the attainment of its own perfection that such satisfaction can -be found, the object of will is intrinsically or potentially, and -tends to become actually, the same as that of reason. It is this -that we express by saying that man is subject to a law of his being -which prevents him from finding satisfaction in the objects in -which under the pressure of his desires it is his natural impulse -to seek it. This 'natural impulse' (not strictly 'natural') is -itself the result of the operation of the self-realising principle -upon what would otherwise be an animal system, and is modified, no -doubt, with endless complexity in the case of any individual by the -result of such operation through the ages of human history. But -though the natural impulses of the will are thus the work of the -self-realising principle in us, it is not in their gratification that -this principle can find the satisfaction which is only to be found -in the consciousness of becoming perfect, of realising what it has -it in itself to be. In order to any approach to this satisfaction -of itself the self-realising principle must carry its work farther. -It must overcome the 'natural impulses,' not in the sense of either -extinguishing them or denying them an object, but in the sense of -fusing them with those higher interests, which have human perfection -in some of its forms for their object. Some approach to this fusion -we may notice in all good men; not merely in those in whom all -natural passions, love, anger, pride, ambition, are enlisted in the -service of some great public cause, but in those with whom such -passions are all governed by some such commonplace idea as that of -educating a family. - -22. So far as this state is reached, the man may be said to be -reconciled to 'the law of his being' which (as was said above) -prevents him from finding satisfaction in the objects in which he -ordinarily seeks it, or anywhere but in the realisation in himself of -an idea of perfection. Since the law is, in fact, the action of that -self-realising subject which is his self, and which exists in God as -eternally self-realised, he may be said in this reconciliation to be -at peace at once with himself and with God. - -Again, he is 'free,' (1) in the sense that he is the author of the -law which he obeys (for this law is the expression of that which -is his self), and that he obeys it because conscious of himself -as its author; in other words, obeys it from that impulse after -self-perfection which is the source of the law or rather constitutes -it. He is 'free' (2) in the sense that he not merely 'delights in -the law after the inward man' (to use St. Paul's phrase), while his -natural impulses are at once thwarted by it and thwart him in his -effort to conform to it, but that these very impulses have been drawn -into its service, so that he is in bondage neither to it nor to the -flesh. - -From the same point of view we may say that his will is 'autonomous,' -conforms to the law which the will itself constitutes, because the -law (which prevents him from finding satisfaction anywhere but in -the realisation in himself of an idea of perfection) represents the -action in him of that self-realising principle of which his will -is itself a form. There is an appearance of equivocation, however, -in this way of speaking, because the 'will' which is liable not to -be autonomous, and which we suppose gradually to approach autonomy -in the sense of conforming to the law above described, is not -this self-realising principle in the form in which this principle -involves or gives the law. On the contrary, it is the self-realising -principle as constituting that effort after self-satisfaction -in each of us which is liable to be and commonly is directed to -objects which are not contributory to the realisation of the idea of -perfection,--objects which the self-realising principle accordingly, -in the fulfilment of its work, has to set aside. The equivocation -is pointed out by saying, that the good will is 'autonomous' in the -sense of conforming to a law which the will itself, _as reason_, -constitutes; which is, in fact, a condensed way of saying, that the -good will is the will of which the object coincides with that of -practical reason; that will has its source in the same self-realising -principle which yields that consciousness of a possible -self-perfection which we call reason, and that it can only correspond -to its idea, or become what it has the possibility of becoming, in -being directed to the realisation of that consciousness. - -23. According to the view here taken, then, reason and will, even -as they exist in men, are one in the sense that they are alike -expressions of one self-realising principle. In God, or rather in -the ideal human person as he really exists in God, they are actually -one; i.e. self-satisfaction is for ever sought and found in the -realisation of a completely articulated or thoroughly filled idea -of the perfection of the human person. In the historical man--in -the men that have been and are coming to be--they _tend_ to unite. -In the experience of mankind, and again in the experience of the -individual as determined by the experience of mankind, both the idea -of a possible perfection of man, the idea of which reason is the -faculty, and the impulse after self-satisfaction which belongs to -the will, undergo modifications which render their reconciliation -in the individual (and it is only in individuals that they can -be reconciled, because it is only in them that they exist) more -attainable. These modifications may be stated summarily as (1) an -increasing concreteness in the idea of human perfection; its gradual -development from the vague inarticulate feeling that there is such a -thing into a conception of a complex organisation of life, with laws -and institutions, with relationships, courtesies, and charities, with -arts and graces through which the perfection is to be attained; and -(2) a corresponding discipline, through inheritance and education, of -those impulses which may be called 'natural' in the sense of being -independent of any conscious direction to the fulfilment of an idea -of perfection. Such discipline does not amount to the reconciliation -of will and reason; it is not even, properly speaking, the beginning -of it; for the reconciliation only begins with the direction of the -impulse after self-satisfaction to the realisation of an idea of -what should be, as such (_because_ it should be); and no discipline -through inheritance or education, just because it is only impulses -that are natural (in the sense defined) which it can affect, can -bring about this direction, which, in theological language, must -be not of nature, but of grace. On the contrary, the most refined -impulses may be selfishly indulged; i.e. their gratification may -be made an object in place of that object which consists in the -realisation of the idea of perfection. But unless a discipline and -refinement of the natural impulses, through the operation of social -institutions and arts, went on _pari passu_ with the expression of -the idea of perfection in such institutions and arts, the direction -of the impulses of the individual by this idea, when in some form or -other it has been consciously awakened in him, would be practically -impossible. The moral progress of mankind has no reality except as -resulting in the formation of more perfect individual characters; -but on the other hand every progress towards perfection on the -part of the individual character presupposes some embodiment or -expression of itself by the self-realising principle in what may be -called (to speak most generally) the organisation of life. It is -in turn, however, only through the action of individuals that this -organisation of life is achieved. - -24. Thus the process of reconciliation between will and reason,--the -process through which each alike comes actually to be or to do what -it is and does in possibility, or according to its idea, or according -to the law of its being,--so far as it comes within our experience -may be described as follows. A certain action of the self-realising -principle, of which individuals susceptible in various forms to the -desire to better themselves have been the media, has resulted in -conventional morality; in a system of recognised rules (whether in -the shape of law or custom) as to what the good of society requires, -which no people seem to be wholly without. The moral progress of -the individual, born and bred under such a system of conventional -morality, consists (1) in the adjustment of the self-seeking -principle in him to the requirements of conventional morality, so -that the modes in which he seeks self-satisfaction are regulated -by the sense of what is expected of him. This adjustment (which it -is the business of education to effect) is so far a determination -of the will as in the individual by objects which the universal or -national human will, of which the will of the individual is a partial -expression, has brought into existence, and is thus a determination -of the will by itself. It consists (2) in a process of reflection, -by which this feeling in the individual of what is expected of -him becomes a conception (under whatever name) of something that -universally should be, of something absolutely desirable, of a single -end or object of life. The content of this conception may be no more -than what was already involved in the individual's feeling of what is -expected of him; that is to say, if called upon to state in detail -what it is that has to be done for the attainment of the absolute -moral end or in obedience to the law of what universally should -be, he might only be able to specify conduct which, apart from any -such explicit conception, he felt was expected of him. For all that -there is a great difference between feeling that a certain line of -conduct is expected of me and conceiving it as a form of a universal -duty. So long as the requirements of established morality are felt -in the former way, they present themselves to the man as imposed -from without. Hence, though they are an expression of practical -reason, as operating in previous generations of men, yet, unless the -individual conceives them as relative to an absolute end common to -him with all men, they become antagonistic to the practical reason -which operates in him, and which in him is the source at once of the -demand for self-satisfaction and of the effort to find himself in, -to carry his own unity into, all things presented to him. Unless the -actions required of him by 'the divine law, the civil law, and the -law of opinion or reputation' (to use Locke's classification) tend to -realise his own idea of what should be or is good on the whole, they -do not form an object which, as contemplated, he can harmonise with -the other objects which he seeks to understand, nor, as a practical -object, do they form one in the attainment of which he can satisfy -himself. Hence before the completion of the process through which -the individual comes to conceive the performance of the actions -expected of him under the general form of a duty which in the freedom -of his own reason he recognises as binding, there is apt to occur a -revolt against conventional morality. The issue of this may either -be an apparent suspension of the moral growth of the individual, -or a clearer apprehension of the spirit underlying the letter of -the obligations laid on him by society, which makes his rational -recognition of duty, when arrived at, a much more valuable influence -in promoting the moral growth of society. - -25. Process (2), which may be called a reconciliation of reason with -itself, because it is the appropriation by reason as a personal -principle in the individual of the work which reason, acting through -the media of other persons, has already achieved in the establishment -of conventional morality, is the condition of the third stage in -which the moral progress of the individual consists; viz. the growth -of a personal interest in the realisation of an idea of what should -be, in doing what is believed to contribute to the absolutely -desirable, or to human perfection, because it is believed to do so. -Just so far as this interest is formed, the reconciliation of the two -modes in which the practical reason operates in the individual is -effected. The demand for self-satisfaction (practical reason as the -will of the individual) is directed to the realisation of an ideal -object, the conceived 'should be,' which practical reason as our -reason constitutes. The 'autonomy of the will' is thus attained in -a higher sense than it is in the 'adjustment' described under (1), -because the objects to which it is directed are not merely determined -by customs and institutions which are due to the operation of -practical reason in previous ages, but are embodiments or expressions -of the conception of what absolutely should be as formed by the man -who seeks to satisfy himself in their realisation. Indeed, unless in -the stage of conformity to conventional morality the principle of -obedience is some feeling (though not a clear conception) of what -should be, of the desirable as distinct from the desired,--if it is -merely fear of pain or hope of pleasure,--there is no approach to -autonomy of the will or moral freedom in the conformity. We must not -allow the doctrine that such freedom consists in a determination -of the will by reason, and the recognition of the truth that the -requirements of conventional morality are a product of reason as -operating in individuals of the past, to mislead us into supposing -that there is any moral freedom, or anything of intrinsic value, -in the life of conventional morality as governed by 'interested -motives,' by the desire, directly or indirectly, to obtain pleasure. -There can be no real determination of the will by reason unless both -reason and will are operating in one and the same person. A will -is not really anything except as the will of a person, and, as we -have seen, a will is not really determinable by anything foreign -to itself: it is only determinable by an object which the person -willing makes his own. As little is reason really anything apart from -a self-conscious subject, or as other than an idea of perfection -to be realised in and by such a subject. The determination of will -by reason, then, which constitutes moral freedom or autonomy, must -mean its determination by an object which a person willing, in -virtue of his reason, presents to himself, that object consisting in -the realisation of an idea of perfection in and by himself. Kant's -view that the action which is merely 'pflichtmässig,' not done 'aus -Pflicht,' [1] is of no moral value in itself, whatever may be its -possible value as a means to the production of the will which does -act 'aus Pflicht,' is once for all true, though he may have taken -too narrow a view of the conditions of actions done 'aus Pflicht,' -especially in supposing (as he seems to do) that it is necessary -to them to be done painfully. There is no determination of will by -reason, no moral freedom, in conformity of action to rules of which -the establishment is due to the operation of reason or the idea of -perfection in men, unless the principle of conformity in the persons -conforming is that idea itself in some form or other. - -[1] [German aus Pflicht = from duty, pflichtmässig = consistent with -duty--Tr.] - -LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION. - -Note of the Editor. - -These lectures, which are partly critical and partly expository, -treat of the moral grounds upon which the state is based and upon -which obedience to the law of the state is justified. They were -delivered in 1879-80, following upon the course from which the -discussion of Kant's moral theory in this volume is taken. The two -courses are directly connected, civil institutions being throughout -regarded as the external expression of the moral progress of mankind, -and as supplying the material through which the idea of perfection -must be realised. - -As is implied in section 5, the inquiry into the nature of political -obligation forms part of a wider inquiry into the concrete forms -of morality in general, 'the detail of goodness.' The lecturer -had intended to complete the course by a consideration of 'social -virtues' and 'moral sentiments'; but this intention was not carried -out. (See section 251.) - -LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION. - - A. _THE GROUNDS OF POLITICAL OBLIGATION._ - -1. The subject of this course of lectures is the principles of -political obligation; and that term is intended to include the -obligation of the subject towards the sovereign, the obligation of -the citizen towards the state, and the obligation of individuals -to each other as enforced by a political superior. My purpose is -to consider the moral function or object served by law, or by the -system, of rights and obligations which the state enforces, and in so -doing to discover the true ground or justification for obedience to -law. My plan will be (1) to state in outline what I consider the true -function of law to be, this being at the same time the true ground of -our moral duty to obey the law; and throughout I distinguish moral -duty from legal obligation; (2) to examine the chief doctrines of -political obligation that have been current in modern Europe, and by -criticising them to bring out more clearly the main points of a truer -doctrine; (3) to consider in detail the chief rights and obligations -enforced in civilised states, inquiring what is their justification, -and what is the ground for respecting them on the principle stated. - -2. In previous lectures I have explained what I understand moral -goodness to be, and how it is possible that there should be such -a thing; in other words, what are the conditions on the part of -reason and will which are implied in our being able to conceive -moral goodness as an object to be aimed at, and to give some partial -reality to the conception. Our results on this question may be -briefly stated as follows. - -The highest moral goodness we found was an attribute of character, -in so far as it issued in acts done for the sake of their goodness, -not for the sake of any pleasure or any satisfaction of desire -which they bring to the agent. But it is impossible that an action -should be done for the sake of its goodness, unless it has been -previously contemplated as good for some other reason than that which -consists in its being done for the sake of its goodness. It must -have been done, or conceived as possible to be done, and have been -accounted good, irrespectively of the being done from this which we -ultimately come to regard as the highest motive. In other words, a -prior morality, founded upon interests which are other than the pure -interest in being good, and governed by rules of conduct relative to -a standard of goodness other than that which makes it depend on this -interest, is the condition of there coming to be a character governed -by interest in an ideal of goodness. Otherwise this ideal would be an -empty one; it would be impossible to say what the good actions were, -that were to be done for the sake of their goodness; and the interest -in this ideal would be impossible, since it would be an interest -without an object. - -3. When, however, morality of the latter kind has come to be -recognised as the highest or the only true morality, the prior -morality needs to be criticised from the point of view thus gained. -Those interests, other than the interest in being good, which form -the motives on the part of the individual on which it rests, will -not indeed be rejected as of no moral value; for no one can suppose -that without them, or except as regulating them, the pure interest -in being good could determine conduct at all. But they will be -estimated according to their value as leading up to, or as capable -of becoming elements in, a character in which this interest is the -governing principle. Again, those rules of conduct, according to -which the terms right and wrong, good and bad, are commonly applied, -and which, as was just now said, are relative to a standard certainly -not founded on the conception of the good as consisting in the -character described, are not indeed to be rejected; for without -them there would be nothing to define the duties which the highest -character is prepared to do for their own sake. But they have to be -revised according to a method which inquires into their rationale -or justification, as conditions of approximation to the highest -character. - -4. Such a criticism of moral interests--of the general motives -which determine moral conduct and regulate such moral approbation -or disapprobation as is not based on a strict theory of moral -good--may be called by the name of 'a theory of moral sentiments.' -The criticism of recognised rules of conduct will fall under two -heads, according as these rules are embodied in positive law (law of -which the observance is enforced on the individual by a political -superior), or only form part of the 'law of opinion' (part of what -the individual feels to be expected of him by some person or persons -to whose expectations he ought to conform). - -5. Moral interests are so greatly dependent on generally recognised -rules of conduct that the criticism of the latter should come -first. The law of opinion, again, in so many ways presupposes a -social fabric supported by 'positive' law, that we can only fairly -take account of it when we have considered the moral value and -justifiability of the fabric so supported. I propose therefore to -begin our inquiry into the detail of goodness--into the particular -kinds of conduct which the man wishing to do good for the sake -of its goodness is entitled to count good--by considering what -is of permanent moral value in the institutions of civil life, -as established in Europe; in what way they have contributed and -contribute to the possibility of morality in the higher sense of -the term, and are justified, or have a moral claim upon our loyal -conformity, in consequence. - -6. The condition of a moral life is the possession of will and -reason. Will is the capacity in a man of being determined to action -by the idea of a possible satisfaction of himself. An act of -will is an action so determined. A state of will is the capacity -as determined by the particular objects in which the man seeks -self-satisfaction; and it becomes a character in so far as the -self-satisfaction is habitually sought in objects of a particular -kind. Practical reason is the capacity in a man of conceiving the -perfection of his nature as an object to be attained by action. -All moral ideas have their origin in reason, i.e. in the idea of a -possible self-perfection to be attained by the moral agent. This -does not mean that the moral agent in every stage of his progress -could state this idea to himself in an abstract form, any more -than in every stage in the acquisition of knowledge about nature a -man can state to himself in an abstract form the conception of the -unity of nature, which yet throughout conditions the acquisition of -his knowledge. Ideas do not first come into existence, or begin to -operate, upon the formation of an abstract expression for them. This -expression is only arrived at upon analysis of a concrete experience, -which they have rendered possible. Thus we only learn to express the -idea of self-perfection in that abstract form upon an analysis of an -experience of self-improvement which we have ourselves gone through, -and which must have been gone through by those with whom we are -connected by the possession of language and an organisation of life, -however elementary: but the same analysis shows that the same idea -must have been at work to make such experience possible. In this idea -all particular moral ideas--all ideas of particular forms of conduct -as estimable--originate, though an abstract expression for the latter -is arrived at much sooner than such an expression for the idea in -which they originate. They arise, as the individual's conception of -the society on the well-being of which his own depends, and of the -constituents of that well-being, becomes wider and fuller; and they -are embodied in the laws, institutions, and social expectation, which -make conventional morality. This embodiment, again, constitutes the -moral progress of mankind. This progress, however, is only a _moral_ -progress in so far as it tends to bring about the harmony of will and -reason, in the only form in which it can really exist, viz. in the -characters of persons. And this result is actually achieved, in so -far as upon habits disciplined by conformity to conventional morality -there supervenes an intelligent interest in some of the objects -contributory to human perfection, which that conventional morality -subserves, and in so far as that interest becomes the dominant -interest of the character. - -7. The value then of the institutions of civil life lies in their -operation as giving reality to these capacities of will and reason, -and enabling them to be really exercised. In their general effect, -apart from particular aberrations, they render it possible for a -man to be freely determined by the idea of a possible satisfaction -of himself, instead of being driven this way and that by external -forces, and thus they give reality to the capacity called will: -and they enable him to realise his reason, i.e. his idea of -self-perfection, by acting as a member of a social organisation in -which each contributes to the better-being of all the rest. So far -as they do in fact thus operate they are morally justified, and may -be said to correspond to the 'law of nature,' the _jus naturae_, -according to the only sense in which that phrase can be intelligibly -used. - -8. There has been much controversy as to what the _jus naturae_ -('Naturrecht') really is, or whether there is such a thing at all. -And the controversy, when it comes to be dealt with in English, is -further embarrassed by the fact that we have no one term to represent -the full meaning of 'jus' or 'Recht,' as a system of correlative -rights and obligations, actually enforced or that should be enforced -by law. But the essential questions are: (1) whether we are entitled -to distinguish the rights and obligations which are anywhere actually -enforced by law from rights and obligations which really exist though -not enforced; and (2), if we are entitled to do so, what is to be -our criterion of rights and obligations which are really valid, in -distinction from those that are actually enforced. - -9. No one would seriously maintain that the system of rights and -obligations, as it is anywhere enforced by law,--the 'jus' or 'Recht' -of any nation--is all that it ought to be. Even Hobbes holds that -a law, though it cannot be unjust, may be pernicious. But there -has been much objection to the admission of _natural_ rights and -obligations. At any rate the phrase is liable to misinterpretation. -It may be taken to imply that rights and obligations can exist in a -'state of nature'--a state in which every individual is free to do as -he likes--; that legal rights and obligations derive their authority -from a voluntary act by which individuals contracted themselves -out of this state; and that the individual retains from the state -of nature certain rights with which no legal obligations ought to -conflict. Such a doctrine is generally admitted to be untenable; but -it does not follow from this that there is not a true and important -sense in which natural rights and obligations exist,--the same sense -as that in which duties may be said to exist though unfulfilled. -There is a system of rights and obligations which _should be_ -maintained by law, whether it is so or not, and which may properly be -called 'natural'; not in the sense in which the term 'natural' would -imply that such a system ever did exist or could exist independently -of force exercised by society over individuals, but 'natural' because -necessary to the end which it is the vocation of human society to -realise. - -10. The 'jus naturae,' thus understood, is at once distinguished from -the sphere of moral duty, and relative to it. It is distinguished -from it because admitting of enforcement by law. Moral duties do not -admit of being so enforced. The question sometimes put, whether moral -duties should be enforced by law, is really an unmeaning one; for -they simply cannot be enforced. They are duties to act, it is true, -and an act can be enforced: but they are duties to act from certain -dispositions and with certain motives, and these cannot be enforced. -Nay, the enforcement of an outward act, the moral character of which -depends on a certain motive and disposition, may often contribute to -render that motive and disposition impossible: and from this fact -arises a limitation to the proper province of law in enforcing acts, -which will have to be further considered below. When obligations -then are spoken of in this connection, as part of the 'jus naturae' -correlative to rights, they must always be understood not as moral -duties, not as relative to states of will, but as relative to -outward acts, of which the performance or omission can and should -be enforced. There is a moral duty to discharge such obligations, -and to do so in a certain spirit, but the obligation is such as that -with which law has to do or may have to do, is relative to an outward -act merely, and does not amount to a moral duty. There is a moral -duty in regard to obligations, but there can be no obligation in -regard to moral duties. Thus the 'jus naturae'--the system of rights -and obligations, as it should become no less than as it actually is -maintained--is distinct from morality in the proper sense. But it is -relative to it. This is implied in saying that there is a moral duty -in regard to actual obligations, as well as in speaking of the system -of rights and obligations as it should become. If such language is -justifiable, there must be a moral ground both for conforming to, and -for seeking to develope and improve, established 'Recht'; a moral -ground which can only lie in the moral end served by that established -system. - -11. Thus we begin the ethical criticism of law with two -principles:--(1) that nothing but external acts can be matter of -'obligation' (in the restricted sense); and (2) that, in regard -to that which can be made matter of obligation, the question what -should be made matter of obligation--the question how far rights and -obligations, as actually established by law, correspond to the true -'jus naturae'--must be considered with reference to the moral end, as -serving which alone law and the obligations imposed by law have their -value.[1] - -[1] There are two definitions of 'Recht' or 'jus naturae,' quoted -by Ulrici (_Naturrecht_, p. 219), which embody the truths conveyed -in these statements. (1) Krause defines 'Recht' as 'das organische -Ganze der äusseren Bedingungen des Vernunftlebens,' 'the organic -whole of the outward conditions necessary to the rational life.' (2) -Henrici says that 'Recht' is 'was der Idee der Unverletzbarkeit der -materiellen wesentlichen Bedingungen des moralischen Menschenthums, -d. h. der menschlichen Persönlichkeit nach ihrer Existenz und -ihrer Vervollkommnung, oder der unveräusserlichen Menschengüter im -äusserlichen Verkehr entspricht': i.e. 'Right is what' (or, 'that -is properly matter of legal obligation which') 'in the outward -intercourse of men corresponds to the idea of the inviolability of -the essential material conditions of a moral humanity, i.e. of the -human personality in respect of its existence and its perfection;' -or, more simply, 'Right is that which is really necessary to the -maintenance of the material conditions essential to the existence and -perfection of human personality.' Cf. Trendelenburg, _Naturrecht_, -Sect. 46. 'Das Recht ist im sittlichen Ganzen der Inbegriff -derjenigen allgemeinen Bestimmungen des Handelns, durch welche es -geschieht dass das sittliche Ganze und seine Gliederung sich erhalten -und weiter bilden kann.' Afterwards he emphasises the words 'des -Handelns,' and adds: 'Zwar kann das Handeln nicht ohne den Willen -gedacht werden, der zum Grunde liegt: aber die Rechtbestimmungen -sind nicht Bestimmungen des Willens als solchen, was dem innern -Gebiet, der Ethik der Gesinnung, anheimfallen würde. Der Wille der -nicht Handlung wird entzieht sich dem Recht. Wenn das Recht Schuld -und Versehen, _dolus_ und _culpa_, in sein Bereich zieht, so sind -sie als innere aber charakteristische Beschaffenbeiten des Handelns -anzusehen.' - -12. Before proceeding, some remarks have to be made as to what is -implied in these principles, _(a)_ Does the law, or is it possible -that it should, confine its view to external acts? What exactly is -meant by an external act? In the case of obligations which I am -legally punishable for disregarding, the law, in deciding whether -punishment is or is not due, takes account of much beside the -external act; and this implies that much beside external action -is involved in legal obligation. In the case where the person or -property of another is damaged by me, the law does not inquire -merely whether the act of damage was done, and done by means of my -bodily members, but whether it was done intentionally: and if not -done with the direct intention of inflicting the damage, whether -the damage arose in a manner that might have been foreseen out of -something which I did intend to do: whether, again, if it was done -quite accidentally the accident was due to culpable negligence. This, -however, does not show that the law can enforce or prevent anything -but external action, but only that it is _action_ which it seeks to -enforce or prevent, for without intention there is no action. We talk -indeed of a man acting against his will, but if this means acting -against intention it is what it is impossible to do. What I call an -act done against my will is either (1) an act done by someone else -using my body, through superior force, as a means: in which case -there is an act, but it is not mine (e.g. if another uses my hand -to pull the trigger of a gun by which someone is shot); or (2) a -natural event in which my limbs are affected in a certain way which -causes certain results to another person (e.g. if the rolling of a -ship throws me against another person who is thus thrown into the -water); or (3) an act which I do under the influence of some strong -inducement (e.g. the fear of death), but which is contrary to some -strong wish. In this case the act is mine, but mine because I intend -it; because it is not against my will as = intention. In saying, -then, that the proper, because the only possible, function of law is -to enforce the performance of or abstinence from external actions, -it is implied that its function is to produce or prevent certain -intentions, for without intention on the part of someone there is no -act. - -13. But if an act necessarily includes intention, what is the nature -of the restriction implied in calling it external? An external action -is a determination of will as exhibited in certain motions of the -bodily members which produce certain effects in the material world; -not a determination of the will as arising from certain motives -and a certain disposition. All that the law can do is to enjoin or -forbid determinations of will as exhibited in such motions, &c. It -does indeed present a motive, for it enforces its injunctions and -prohibitions primarily by fear, by its threat of certain consequences -if its commands are disobeyed. This enforcement is not an exercise -of physical force in the strict sense, for in this sense no force -can produce an action, since it cannot produce a determination of -will; and the only way in which the law or its administrators employ -such force is not in the production but in the prevention of action -(as when a criminal is locked up or the police prevent mischievous -persons from assaulting us or breaking into our houses). But though, -in enforcing its commands by threats, the law is presenting a motive, -and thus, according to our distinction, affecting action on its -inner side, it does this solely for the sake of the external act. It -does not regard the relation of the act to the motive fear as of any -intrinsic importance. If the action is performed without this motive -ever coming into play under the influence of what the moralist counts -higher motives, the purpose of the law is equally satisfied. Indeed, -it is always understood that its purpose is most thoroughly served -when the threat of pains and penalties has ceased to be necessary, -and the obligations correlative to the relations of individuals and -of societies are fulfilled from other motives. Its business is to -maintain certain conditions of life--to see that certain actions are -done which are necessary to the maintenance of those conditions, -others omitted which would interfere with them. It has nothing to do -with the motive of the actions or omissions, on which, however, the -moral value of them depends. - -14. It appears, then, that legal obligations--obligations which can -possibly form the subject of positive law--can only be obligations to -do or abstain from certain acts, not duties of acting from certain -motives, or with a certain disposition. It is not a question whether -the law should or should not oblige to anything but performance of -outward acts. It simply cannot oblige to anything else, because the -only means at its command for obtaining the fulfilment of obligations -are (1) threats of pain and offers of reward, by means of which it is -possible indeed to secure the general performance of certain acts, -but not their performance from the motive even of fear of the pain -threatened or hope of the reward offered, much less from any higher -motive; (2) the employment of physical force, _(a)_ in restraining -men disposed to violate obligations, _(b)_ in forcibly applying the -labour or the property of those who violate obligations to make good -the breach, so far as is possible: (as, e.g., when the magistrate -forestalls part of a man's wages to provide for a wife whom he has -deserted, or when the property of a debtor is seized for the benefit -of his creditors.) - -15. Only outward acts, then, _can_ be matter of legal obligation; but -what sort of outward acts _should_ be matter of legal obligation? -The answer to this question arises out of the above consideration of -the means which law employs to obtain the fulfilment of obligations, -combined with the view of law as relative to a moral end, i.e. the -formation of a society of persons, acting from a certain disposition, -from interest in the society as such. Those acts only should be -matter of legal injunction or prohibition of which the performance or -omission, irrespectively of the motive from which it proceeds, is so -necessary to the existence of a society in which the moral end stated -can be realised, that it is better for them to be done or omitted -from that unworthy motive which consists in fear or hope of legal -consequences than not to be done at all. - -16. We distinguish, then, the system of rights actually maintained -and obligations actually enforced by legal sanctions ('Recht' or -'jus') from the system of relations and obligations which _should be_ -maintained by such sanctions ('Naturrecht'); and we hold that those -actions or omissions should be made obligations which, when made -obligations, serve a certain moral end; that this end is the ground -or justification or rationale of legal obligation; and that thus we -obtain a general rule, of both positive and negative application, in -regard to the proper matter or content of legal obligation. For since -the end consists in action proceeding from a certain disposition, -and since action done from apprehension of legal consequences does -not proceed from that disposition, no action should be enjoined or -prohibited by law of which the injunction or prohibition interferes -with actions proceeding from that disposition, and every action -should be so enjoined of which the performance is found to produce -conditions favourable to action proceeding from that disposition, and -of which the legal injunction does not interfere with such action. - -17. Does this general rule give any real guidance in the difficulties -which practically arise in regard to the province of law--as to -what should be required by law, and what left to the inclination of -individuals? What cases are there or have there been of enactments -which on this principle we can pronounce wrong? Have attempts ever -been made by law to enforce acts as virtuous which lose their virtue -when done under fear of legal penalties? It would be difficult, no -doubt, to find instances of attempts to enforce by law actions of -which we should say that the value lies in the disposition from which -they are done, actions, e.g. of disinterested kindness, because the -clear conception of virtue as depending not on outward results, -but on disposition, is but slowly arrived at, and has never been -reflected in law. But without any strictly moral object at all, laws -have been made which check the development of the moral disposition. -This has been done _(a)_ by legal requirements of religious -observance and profession of belief, which have tended to vitiate the -religious source of morality; _(b)_ by prohibitions and restraints, -unnecessary, or which have ceased to be necessary, for maintaining -the social conditions of the moral life, and which interfere with the -growth of self-reliance, with the formation of a manly conscience and -sense of moral dignity,--in short, with the moral autonomy which is -the condition of the highest goodness; _(c)_ by legal institutions -which take away the occasion for the exercise of certain moral -virtues (e.g. the Poor-law which takes away the occasion for the -exercise of parental forethought, filial reverence, and neighbourly -kindness). - -18. Laws of this kind have often been objected to on the strength -of a one-sided view of the function of laws; the view, viz., that -its only business is to prevent interference with the liberty of -the individual. And this view has gained undue favour on account of -the real reforms to which it has led. The laws which it has helped -to get rid of were really mischievous, but mischievous for further -reasons than those conceived of by the supporters of this theory. -Having done its work, the theory now tends to become obstructive, -because in fact advancing civilisation brings with it more and -more interference with the liberty of the individual to do as he -likes, and this theory affords a reason for resisting all positive -reforms, all reforms which involve an action of the state in the way -of promoting conditions favourable to moral life. It is one thing -to say that the state in promoting these conditions must take care -not to defeat its true end by narrowing the region within which the -spontaneity and disinterestedness of true morality can have play; -another thing to say that it has no moral end to serve at all, and -that it goes beyond its province when it seeks to do more than secure -the individual from violent interference by other individuals. The -true ground of objection to 'paternal government' is not that it -violates the 'laissez faire' principle and conceives that its office -is to make people good, to promote morality, but that it rests on a -misconception of morality. The real function of government being to -maintain conditions of life in which morality shall be possible, and -morality consisting in the disinterested performance of self-imposed -duties, 'paternal government' does its best to make it impossible by -narrowing the room for the self-imposition of duties and for the play -of disinterested motives. - -19. The question before us, then, is, In what ways and how far do -the main obligations enforced and rights maintained by law in all -civilised societies contribute to the moral end described; viz. -to establish those conditions of life in which a true, i.e. a -disinterested or unselfish morality shall be possible? The answer -to this question will be a theory of the 'jus naturae'; i.e. it -will explain how far positive law is what it should be, and what -is the ground of the duty to obey it; in other words, of political -obligation. There are two things from which such a theory must be -distinguished. (1) It is not an inquiry into the process by which -actual law came to be what it is; nor (2) is it an inquiry how far -actual law corresponds to and is derived from the exercise of certain -original or natural rights. (1) It is not the former, because the -process by which the law of any nation and the law in which civilised -nations agree has come to be what it is, has not been determined -by reference to that end to which we hold that law ought to be -directed and by reference to which we criticise it. That is to say, -the process has not been determined by any such conscious reference -on the part of the agents in the process. No doubt a desire for -social good as distinct from private pleasure, for what is good on -the whole as distinct from what is good for the moment, has been a -necessary condition of it; but _(a)_, as an agent in the development -of law, this has not reached the form of a conception of moral good -according to that definition of it by which the value of law is to be -estimated; and _(b)_ in bringing law to its present state it has been -indistinguishably blended with purely selfish passions and with the -simple struggle for existence. - -20. (2) A true theory of 'jus naturae,' a rationale of law or ideal -of what it should be, is not to be had by inquiring how far actual -law corresponds to, and is derived from, the exercise of certain -original or natural rights, if that is taken to mean that we know, -or can ascertain, what rights are natural on grounds distinct from -those on which we determine what laws are justifiable, and that then -we can proceed to ascertain what laws are justifiable by deduction -from such rights. 'Natural rights,' so far as there are such things, -are themselves relative to the moral end to which perfect law is -relative. A law is not good because it enforces 'natural rights,' -but because it contributes to the realisation of a certain end. We -only discover what rights are natural by considering what powers -must be secured to a man in order to the attainment of this end. -These powers a perfect law will secure to their full extent. Thus the -consideration of what rights are 'natural' (in the only legitimate -sense) and the consideration what laws are justifiable form one -and the same process, each presupposing a conception of the moral -vocation of man. - -21. The doctrine here asserted, that all rights are relative to moral -ends or duties, must not be confused with the ordinary statement -that every right implies a duty, or that rights and duties are -correlative. This of course is true in the sense that possession -of a right by any person both implies an obligation on the part of -someone else, and is conditional upon the recognition of certain -obligations on the part of the person possessing it. But what is -meant is something different, viz. that the claim or right of the -individual to have certain powers secured to him by society, and -the counter-claim of society to exercise certain powers over the -individual, alike rest on the fact that these powers are necessary to -the fulfilment of man's vocation as a moral being, to an effectual -self-devotion to the work of developing the perfect character in -himself and others. - -22. This, however, is not the ground on which the claim in question -has generally been asserted. Apart from the utilitarian theory, which -first began to be applied politically by Hume, the ordinary way of -justifying the civil rights of individuals (i.e. the powers secured -to them by law as against each other), as well as the rights of the -state against individuals (i.e. the powers which, with the general -approval of society, it exercises against them), has been to deduce -them from certain supposed prior rights, called natural rights. In -the exercise of these natural rights, it has been supposed, men with -a view to their general interest established political society. -From that establishment is derived both the system of rights and -obligations maintained by law as between man and man, and the right -of the state to the submission of its subjects. If the question, -then, is raised, why I ought to respect the legal rights of my -neighbours, to pay taxes, or have my children vaccinated, serve in -the army if the state requires it, and generally submit to the law, -the answer according to this theory will be that if I fail to do -so, I shall directly or indirectly be violating the natural rights -of other men; directly in those cases where the legal rights of my -neighbours are also natural rights, as they very well may be (e.g. -rights of liberty or personal safety); indirectly where this is not -the case, because, although the rights of the state itself are not -natural, and many rights exercised by individuals would not only -not be secured but would not exist at all but for legal enactment, -yet the state itself results from a covenant which originally, in -the exercise of their natural rights, men made with each other, -and to which all born under the state and sharing the advantages -derived from it must be considered parties. There is a natural right, -therefore, on the part of each member of a state to have this compact -observed, with a corresponding obligation to observe it; and this -natural right of all is violated by any individual who refuses to -obey the law of the state or to respect the rights, not in themselves -natural, which the state confers on individuals. - -23. This, on the whole, was the form in which the ground of political -obligation, the justification of established rights, was presented -throughout the seventeenth century, and in the eighteenth till the -rise of the 'utilitarian' theory of obligation. Special adaptations -of it were made by Hobbes and others. In Hobbes, perhaps (of whom -more later), may be found an effort to fit an anticipation of the -utilitarian theory of political obligation into the received theory -which traced political obligation, by means of the supposition of -a primitive contract, to an origin in natural right. But in him as -much as anyone the language and framework of the theory of compact -is retained, even if an alien doctrine may be read between the -lines. Of the utilitarian theory of political obligation more shall -be said later. It may be presented in a form in which it would -scarcely be distinguishable from the doctrine just now stated, the -doctrine, viz., that the ground of political obligation, the reason -why certain powers should be recognised as belonging to the state -and certain other powers as secured by the state to individuals, -lies in the fact that these powers are necessary to the fulfilment -of man's vocation as a moral being, to an effectual self-devotion -to the work of developing the perfect character in himself and -others. Utilitarianism proper, however, recognises no vocation of -man but the attainment of pleasure and avoidance of pain. The only -reason why civil rights should be respected--the only justification -of them--according to it, would be that more pleasure is attained -or pain avoided by the general respect for them; the ground of our -consciousness that we ought to respect them, in other words their -ultimate sanction, is the fear of what the consequences would be if -we did not. This theory and that which I deem true have one negative -point in common. They do not seek the ground of actual rights in a -prior natural right, but in an end to which the maintenance of the -rights contributes. They avoid the mistake of identifying the inquiry -into the ultimate justifiability of actual rights with the question -whether there is a prior right to the possession of them. The right -to the possession of them, if properly so called, would not be a -mere power, but a power recognised by a society as one which should -exist. This recognition of a power, in some way or other, as that -which should be, is always necessary to render it a right. Therefore -when we had shown that the rights exercised in political society were -derived from prior 'natural' rights, a question would still remain -as to the ground of those natural rights. We should have to ask why -certain powers were recognised as powers which should be exercised, -and thus became these natural rights. - -24. Thus, though it may be possible and useful to show how the more -seemingly artificial rights are derived from rights more simple and -elementary, how the rights established by law in a political society -are derived from rights that may be called natural, not in the -sense of being prior to society, but in the sense of being prior to -the existence of a society governed by written law or a recognised -sovereign, still such derivation is no justification of them. It is -no answer to the question why they should be respected; because this -question remains to be asked in regard to the most primitive rights -themselves. Political or civil rights, then, are not to be explained -by derivation from natural rights, but in regard to both political -and natural rights, in any sense in which there can be truly said -to be natural rights, the question has to be asked, how it is that -certain powers are recognised by men in their intercourse with each -other as powers that should be exercised, or of which the possible -exercise should be secured. - -25. I have tried to show in lectures on morals that the conception -expressed by the 'should be' is not identical with the conception of -a right possessed by some man or men, but one from which the latter -conception is derived. It is, or implies on the part of whoever is -capable of it, the conception of an ideal, unattained condition of -himself, as an absolute end. Without this conception the recognition -of a power as a right would be impossible. A power on the part of -anyone is so recognised by others, as one which should be exercised, -when these others regard it as in some way a means to that ideal -good of themselves which they alike conceive: and the possessor of -the power comes to regard it as a right through consciousness of -its being thus recognised as contributory to a good in which he too -is interested. No one therefore can have a right except (1) as a -member of a society, and (2) of a society in which some common good -is recognised by the members of the society as their own ideal good, -as that which should be for each of them. The capacity for being -determined by a good so recognised is what constitutes personality -in the ethical sense; and for this reason there is truth in saying -that only among persons, in the ethical sense, can there come to be -rights; (which is quite compatible with the fact that the logical -disentanglement of the conception of rights precedes that of the -conception of the legal person; and that the conception of the moral -person, in its abstract and logical form, is not arrived at till -after that of the legal person). - -Conversely, everyone capable of being determined by the conception of -a common good as his own ideal good, as that which unconditionally -should be (of being in that sense an end to himself), in other -words, every moral person, is capable of rights; i.e. of bearing -his part in a society in which the free exercise of his powers is -secured to each member through the recognition by each of the others -as entitled to the same freedom with himself. To say that he is -capable of rights, is to say that he ought to have them, in that -sense of 'ought' in which it expresses the relation of man to an -end conceived as absolutely good, to an end which, whether desired -or no, is conceived as intrinsically desirable. The moral capacity -implies a consciousness on the part of the subject of the capacity -that its realisation is an end desirable in itself, and rights are -the condition of realising it. Only through the possession of rights -can the power of the individual freely to make a common good his own -have reality given to it. Rights are what may be called the negative -realisation of this power. That is, they realise it in the sense of -providing for its free exercise, of securing the treatment of one -man by another as equally free with himself, but they do not realise -it positively, because their possession does not imply that in any -active way the individual makes a common good his own. The possession -of them, however, is the condition of this positive realisation of -the moral capacity, and they ought to be possessed because this end -(in the sense explained) ought to be attained. - -26. Hence on the part of every person ('person' in the moral sense -explained) the claim, more or less articulate and reflected on, to -rights on his own part is co-ordinate with his recognition of rights -on the part of others. The capacity to conceive a common good as -one's own, and to regulate the exercise of one's powers by reference -to a good which others recognise, carries with it the consciousness -that powers should be so exercised; which means that there should be -rights, that powers should be regulated by mutual recognition. There -ought to be rights, because the moral personality,--the capacity on -the part of an individual for making a common good his own,--ought -to be developed; and it is developed through rights; i.e. through -the recognition by members of a society of powers in each other -contributory to a common good, and the regulation of those powers by -that recognition. - -27. In saying that only among 'persons' can there come to be rights, -and that every 'person' should have rights, I have been careful to -explain that I use 'person' in the moral, not merely in the legal, -sense. In dealing, then, with such phrases as 'jura personarum' -and 'personal rights,' we must keep in view the difference between -the legal and ethical sense of the proposition that all rights are -personal, or subsist as between persons. In the legal sense, so far -as it is true,--and it is so only if 'person' is used in the sense -of Roman law,--it is an identical proposition. A person means a -subject of rights and nothing more. Legal personality is derived -from the possession of right, not _vice versa_. Like other identical -propositions, its use is to bring out and emphasise in the predicate -what is included in the understood connotation of the subject; to -remind us that when we speak of rights we imply the existence of -parties, in English phraseology, capable of suing and being sued. -In the ethical sense, it means that rights are derived from the -possession of personality as = a rational will (i.e. the capacity -which man possesses of being determined to action by the conception -of such a perfection of his being as involves the perfection of a -society in which he lives), in the sense _(a)_ that only among beings -possessed of rational will can there come to be rights, _(b)_ that -they fulfil their idea, or are justifiable, or such rights as should -be rights, only as contributing to the realisation of a rational -will. It is important to bear this distinction in mind in order that -the proposition in its ethical sense, which can stand on its own -merits, may not derive apparent confirmation from a juristic truism. - -28. The moral idea of personality is constantly tending to affect -the legal conception of the relation between rights and persons. -Thus the 'jura personarum,' which properly = either rights arising -out of 'status,' or rights which not only (like all rights) reside -in someone having a legal status and are available against others -having a legal status, but are exercised over, or in respect of, -someone possessed of such status (e.g. a wife or a servant), come -to be understood as rights derived from the human personality or -belonging to man as man. It is with some such meaning that English -writers on law speak of rights to life and liberty as personal -rights. The expression might seem pleonastic, since no right can -exist except as belonging to a person in the legal sense. They do not -use the phrase either pleonastically or in the sense of the Roman -lawyers' 'jura personarum' above, but in the sense that these rights -are immediately derived from, or necessarily attach to, the human -personality in whatever that personality is supposed to consist. -There is no doubt, however, that historically the conception of the -moral person, in any abstract form, is not arrived at till after -that of the legal person has been thus disentangled and formulated; -and further that the abstract conception of the legal person, as the -sustainer of rights, is not arrived at till long after rights have -been actually recognised and established. But the disentanglement -or abstract formulation of the conception of moral personality is -quite a different thing from the action of the consciousness in which -personality consists. - -29. The capacity, then, on the part of the individual of conceiving a -good as the same for himself and others, and of being determined to -action by that conception, is the foundation of rights; and rights -are the condition of that capacity being realised. No right is -justifiable or should be a right except on the ground that directly -or indirectly it serves this purpose. Conversely every power should -be a right, i.e. society should secure to the individual every power, -that is necessary for realising this capacity. Claims to such powers -as are directly necessary to a man's acting as a moral person at -all--acting under the conception of a good as the same for self and -others--may be called in a special sense personal rights (though they -will include more than Stephen includes under that designation); they -may also be called, if we avoid misconceptions connected with these -terms, 'innate' or 'natural' rights. They are thus distinguished from -others which are (1) only indirectly necessary to the end stated, or -(2) are so only under special conditions of society; as well as from -claims which rest merely on legal enactment and might cease to be -enforced without any violation of the 'jus naturae.' - -30. The objection to calling them 'innate' or 'natural,' when -once it is admitted on the one side that rights are not arbitrary -creations of law or custom but that there are certain powers which -ought to be secured as rights, on the other hand that there are no -rights antecedent to society, none that men brought with them into a -society which they contracted to form, is mainly one of words. They -are 'innate' or 'natural' in the same sense in which according to -Aristotle the state is natural: not in the sense that they actually -exist when a man is born and that they have actually existed as long -as the human race, but that they arise out of, and are necessary for -the fulfilment of, a moral capacity without which a man would not be -a man. There cannot be innate rights in any other sense than that in -which there are innate duties, of which, however, much less has been -heard. Because a group of beings are capable each of conceiving an -absolute good of himself and of conceiving it to be good for himself -as identical with, and because identical with, the good of the rest -of the group, there arises for each a consciousness that the common -good should be the object of action, i.e. a duty, and a claim in each -to a power of action that shall be at once secured and regulated by -the consciousness of a common good on the part of the rest, i.e. a -right. There is no ground for saying that the right arises out of a -primary human capacity, and is thus 'innate,' which does not apply -equally to the duty. - -31. The dissociation of innate rights from innate duties has gone -along with the delusion that such rights existed apart from society. -Men were supposed to have existed in a state of nature, which was -not a state of society, but in which certain rights attached to -them as individuals, and then to have formed societies by contract -or covenant. Society having been formed, certain other rights arose -through positive enactment; but none of these, it was held, could -interfere with the natural rights which belonged to men antecedently -to the social contract or survived it. - -Such a theory can only be stated by an application to an imaginary -state of things, prior to the formation of societies as regulated -by custom or law, of terms that have no meaning except in relation -to such societies. 'Natural right,' as = right in a state of nature -which is not a state of society, is a contradiction. There can be -no right without a consciousness of common interest on the part of -members of a society. Without this there might be certain powers on -the part of individuals, but no recognition of these powers by others -as powers of which they allow the exercise, nor any claim to such -recognition; and without this recognition or claim to recognition -there can be no right. - - B. _SPINOZA._ - -32. Spinoza is aware of this. In the _Tractatus Politici_, IT. 4, -he says, 'Per _jus_ itaque _naturae_ intelligo ... ipsam naturae -potentiam.' [1] ... 'Quicquid unusquisque homo ex legibus suae -naturae agit, id summo naturae jure agit, tantumque in naturam -habet juris, quantum potentia valet.' If only, seeing that the -'jus naturae' was mere 'potentia,' he had denied that it was 'jus' -at all, he would have been on the right track. Instead of that, -however, he treats it as properly 'jus,' and consistently with this -regards all 'jus' as mere 'potentia': nor is any 'jus humanum' -according to him guided by or the product of reason. It arises, in -modern phrase, out of the 'struggle for existence.' As Spinoza says, -'homines magis caeca cupiditate quam ratione ducuntur; ac proinde -hominum naturalis potentia sive jus non ratione, sed quocumque -appetitu quo ad agendum determinantur, quoque se conservare conantur, -definiri debet' (II. 5). The 'jus civile' is simply the result of -the conflict of natural powers, which = natural rights, which arises -from the effort of every man to gratify his passions and 'suum esse -conservare.' Man is simply a 'pars naturae,' the most crafty of the -animals. 'Quatenus homines ira, invidia aut aliquo odii affectu -conflictantur, eatenus diverse trahuntur et invicem contrarii sunt, -et propterea eo plus timendi, quo plus possunt, magisque callidi -et astuti sunt, quam reliqua animalia; et quia homines ut plurimum -his affectibus natura sunt obnoxii, sunt ergo homines ex natura -hostes' (II. 14). Universal hostility means universal fear, and fear -means weakness. It follows that in the state of nature there is -nothing fit to be called 'potentia' or consequently 'jus'; 'atque -adeo concludimus jus naturae vix posse concipi nisi ubi homines -jura habent communia, qui simul terras, quas habitare et colere -possunt, sibi vindicare, seseque munire, vimque omnem repellere et -ex communi omnium sententia vivere possunt. Nam (per art. 13 hujus -cap.) quo plures in unum sic conveniunt, eo omnes simul plus juris -habent' (15). The collective body, i.e., has more 'jus in naturam,' -i.e. 'potentiam,' than any individual could have singly (13). In the -advantage of this increased 'jus in naturam' the individual shares. -On the other hand (16), 'Ubi homines jura communia habent omnesque -una veluti mente ducuntur, certum est (per art. 13 hujus cap.) -eorum unumquemque tanto minus habere juris, quanto reliqui simul -ipso potentiores sunt, hoc est, ilium revera jus nullum in naturam -habere praeter id, quod ipsi commune concedit jus. Ceterum quicquid -ex communi consensu ipsi imperatur, teneri exsequi vel (per art. 4 -hujus cap.) jure ad id cogi.' This 'jus' by which the individual's -actions are now to be regulated, is still simply 'potentia.' 'Hoc -jus, quod multitudinis potentia definitur, imperium appellari solet' -(17). It is not to be considered anything different from the 'jus -naturae.' It is simply the 'naturalis potentia' of a certain number -of men combined; 'multitudinis quae una veluti mente ducitur' (III. -2). Thus in the 'status civilis' the 'jus naturae' of the individual -in one sense disappears, in another does not. It disappears in the -sense that the individual member of the state has no mind to act or -power to act against the mind of the state. Anyone who had such mind -or power would not be a member of the state. He would be an enemy -against whose 'potentia' the state must measure its own. On the other -hand, 'in statu civili,' just as much as 'in statu naturali,' 'homo -ex legibus suae naturae agit suaeque utilitati consulit' (3). He -exercises his 'naturalis potentia' for some natural end of satisfying -his wants and preserving his life as he did or would do outside the -'status civilis.' Only in the 'status civilis' these motives on the -part of individuals so far coincide as to form the 'una veluti mens' -which directs the 'multitudinis potentia.' According to this view, -any member of a state will have just so much 'jus,' i.e. 'potentia,' -against other members as the state allows him. If he can exercise -any 'jus' or 'potentia' against another 'ex suo ingenio,' he is so -far not a member of the state and the state is so far imperfect. If -he could exercise any 'jus' or 'potentia' against the state itself, -there would be no state, or, which is the same, the state would not -be 'sui juris.' - -[1] [Many of the Latin passages quoted in this chapter are translated -in Bosanquet's Supplement. Tr] - -33. Is there then no limit to the 'jus' which the state may exercise? -With Spinoza this is equivalent to the question, is there no limit to -the 'potentia' which it can exercise? As to this, he suggests three -considerations. - -(1). Its power is weakened by any action against right reason, -because this must weaken the 'animorum unio' on which it is founded. -'Civitatis jus potentia multitudinis, quae una veluti mente ducitur, -determinatur. At haec animorum unio concipi nulla ratione posset, -nisi civitas id ipsum maxime intendat, quod sana ratio omnibus -hominibus utile esse docet' (III. 7). - -(2). The 'right' or 'power' of the state depends on its power of -affecting the hopes and fears of individual citizens.... 'Subditi -eatenus non sui, sed civitatis juris sint, quatenus ejus potentiam -seu minas metuunt, vel quatenus statum civilem amant (per art. 10 -praeced. cap.). Ex quo sequitur, quod ea omnia, ad quse agenda nemo -praemiis aut minis induci potest, ad jura civitatis non pertineant' -(III. 8). Whatever cannot be achieved by rewards and threats, is -beyond the power and therefore beyond the 'right' of the state. -Examples are given in the same section. - -(3). 'Ad civitatis jus ea minus pertinere, quae plurimi indignantur' -(III. 9). Severities of a certain kind lead to conspiracies against -the state, and thus weaken it. 'Sicut unusquisque civis sive homo -in statu naturali, sic civitas eo minus sui juris est, quo majorem -timendi causam habet.' - -Just so far then as there are certain things which the state cannot -do, or by doing which it lessens its power, so far there are things -which it has no 'right' to do. - -34. Spinoza proceeds to consider the relation of states or sovereign -powers to each other. Here the principle is simple. They are to each -other as individuals in the state of nature, except that they will -not be subject to the same weaknesses. 'Nam quandoquidem (per art. -2 hujus cap.) jus summae potestatis nihil est praeter ipsum naturae -jus, sequitur duo imperia ad invicem sese habere, ut duo homines in -statu naturali, excepto hoc, quod civitas sibi cavere potest, ne ab -alia opprimatur, quod homo in statu naturali non potest, nimirum -qui quotidie somno, saepe morbo aut animi aegritudine, et tandem -senectute gravatur, et prater haec aliis incommodis est obnoxius, -a quibus civitas securam se reddere potest' (III. 11). In other -words, '... duae civitates natura hostes sunt. Homines enim in -statu naturali hostes sunt. Qui igitur jus naturae extra civitatem -retinent, hostes manent' (III. 13). The 'jura belli' are simply the -powers of any one state to attack or defend itself against another. -The 'jura pacis,' on the other hand, do not appertain to any single -state, but arise out of the agreement of two at least. They last as -long as the agreement, the 'foedus,' lasts; and this lasts as long as -the fear or hope, which led to its being made, continues to be shared -by the states which made it. As soon as this ceases to be the case, -the agreement is necessarily at an end, 'nec dici potest, quod dolo -vel perfidia agat, propterea quod fidem solvit, simulatque metus vel -spei causa sublata est, quia haec conditio unicuique contrahentium -aequalis fuit, ut scilicet quae prima extra metum esse potest, sui -juris esset, eoque ex sui animi sententia uteretur, et praeterea quia -nemo in futurum contrahit nisi positis prsecedentibus circumstantiis' -(III. 14). - -35. It would seem to follow from the above that a state can do no -wrong, in the sense that there are no rights that it can violate. -The same principle is applicable to it as to the individual. 'In -statu naturali non dari peccatum, vel si quis peccat, is sibi, non -alteri peccat: ... nihil absolute naturae jure prohibetur, nisi quod -nemo potest' (II. 18). A state is to any other state, and to its -subjects, as one individual to another 'in statu naturali.' A wrong, -a 'peccatum,' consists in a violation by individuals of the 'commune -decretum.' There can be no 'peccare' on the part of the 'commune -decretum' itself. But 'non id omne, quod jure fieri dicimus, optime -fieri affirmamus. Aliud namque est agrum jure colere, aliud agrum -optime colere; aliud, inquam, est sese jure defendere, conservare, -judicium ferre, &c, aliud sese optime defendere, conservare, atque -optimum judicium ferre; et consequenter aliud est jure imperare -et reipublicae curam habere, aliud optime imperare et rempublicam -optime gubernare. Postquam itaque de jure cujuscumque civitatis in -genere egimus, tempus est, ut de optimo cujuscumque imperii statu -agamus' (V. 1). Hence a further consideration 'de optimo cujusque -imperii statu.' This is guided by reference to the 'finis status -civilis,' which is 'pax vitaeque securitas.' Accordingly that is the -best government under which men live in harmony, and of which the -rights are kept inviolate. Where this is not the case, the fault lies -with the government, not with any 'subditorum malitia.' 'Homines -enim civiles non nascuntur, sed fiunt. Hominum praeterea naturales -affectus ubique iidem sunt' (V. 2). - -The end is not fully attained where men are merely kept in order -by fear. Such a state of things is not peace but merely absence of -war. 'Pax enim non belli privatio, sed virtus est, quae ex animi -fortitudine oritur;[1] est namque obsequium constans voluntas id -exsequendi, quod ex communi civitatis decreto fieri debet' (V. 4). - -The 'peace,' then, which it is the end of the state to obtain, -consists in rational virtue; in a common mind, governed by desire on -the part of each individual for perfection of being in himself and -others. The harmony of life, too, which is another way of expressing -its object, is to be understood in an equally high sense. The life -spoken of is one 'quae maxime ratione, vera mentis virtute et vita, -definitur.' - -The 'imperium' which is to contribute to this end must clearly be one -'quod multitudo libera instituit, non autem id, quod in multitudinem -jure belli acquiritur.' Between the two forms of 'imperium' there -may be no essential difference in respect of the 'jus' which belongs -to each, but there is the greatest in respect of the ends which they -serve as well as in the means by which they have to be maintained (V. -6). - -[1] For the definition of 'fortitudo,' see _Ethics_, III. 59, -Schol. 'Omnes actiones quae sequuntur ex affectibus qui ad mentem -referuntur, quatenus intelligit, ad fortitudinem refero, quam in -animositatem et generositatem distinguo. Nam per animositatem -intelligo cupiditatem, qua unusquisque conatur suum esse ex solo -rationis dictamine conservare. Per generositatem ... cupiditatem -qua unusquisque ex solo rationis dictamine conatur reliquos homines -juvare et sibi amicitia jungere.' - -36. This conclusion of Spinoza's doctrine of the state does not seem -really consistent with the beginning. At the outset, no motives are -recognised in men but such as render them 'natura hostes.' From the -operation of these motives the state is supposed to result. Each -individual finds that the war of all against all is weakness for all. -Consequently the desire on the part of each to strengthen himself, -which is a form of the universal effort 'suum esse conservare,' -leads to combination, it being discovered that 'homini nihil homine -utilius' (_Eth_. IV. 18. Schol.). But we are expressly told that the -civil state does not bring with it other motives than those operative -'in statu naturali.' 'Homo namque tam in statu naturali quam civili -ex legibus suae naturae agit, suaeque utilitati consulit.' But then -it appears that there supervenes or may supervene on such motives -'constans voluntas id exsequendi quod ex communi civitatis decreto -fieri debet,' and that not of a kind which seeks to carry out the -'commune decretum' as a means of escaping pain or obtaining pleasure, -for it is said to arise from the 'animi fortitudo' which rests on -reason ('ad mentem refertur quatenus intelligit') and includes -'generositas' defined as above. It is also said that the true object -of 'imperium' is 'vitam concorditer transigere' or 'vitam colere' in -a sense of 'vita' in which it 'maxime ratione ... definitur.' And -as the 'imperium' established for this end is one which 'multitudo -libera instituit,' it seems [1] to be implied that there is a desire -for such an end on the part of the people. It is not explained -how such desires should arise out of the conflict of 'naturales -potentiae' or out of the impulses which render men 'natura hostes.' -On the other hand, if the elements of them already exist in the -impulses which lead to the formation of the 'status civilis,' the -reasons for saying that men are 'natura hostes' disappear, and we get -a different view of 'jus,' whether 'naturale' or 'civile,' from that -which identifies it simply with 'potentia.' Some power of conceiving -and being interested in a good _as common_, some identification of -the 'esse' of others with the 'suum esse' which every man, as Spinoza -says, seeks to preserve and promote, must be supposed in those who -form the most primitive social combinations, if these are to issue -in a state directed to such ends and maintained by such a 'constans -voluntas' as Spinoza describes. And it is the interest of men in a -common good, the desire on the part of each which he thinks of others -as sharing, for a good which he conceives to be equally good for -them, that transforms mere 'potentia' into what may fitly be called -'jus,' i.e. a power claiming recognition as exercised or capable of -being exercised for the common good. - -[1] Certainly this is so, if we apply to the 'libera multitudo' the -definition of freedom applied to the 'liber homo.' 'Hominem eatenus -_liberum_ omnino voco, quatenus ratione ducitur, quia eatenus ex -causis, quae per solam eius naturam possunt adaequate intelligi, -ad agendum determinatur, tametsi ex iis necessario ad agendum -determinetur. Nam libertas agendi necessitatem non tollit, sed -ponit'(II. 11). - -37. If this qualification of 'potentia' which alone renders it 'jus' -had been apprehended by Spinoza, he would have been entitled to speak -of a 'jus naturale' as preceding the 'jus civile,' i.e. of claims to -the recognition of powers and the actual customary recognition of -such, as exercised for a common good, preceding the establishment of -any regular institutions or general laws for securing their exercise. -As it is, the term 'jus naturale' is with him really unmeaning. If it -means no more than 'potentia,' why call it 'jus'? 'Jus' might have -a meaning distinct from that of 'potentia' in the sense of a power -which a certain 'imperium' enables one man to exercise as against -another. This is what Spinoza understands by 'jus civile.' But there -is no need to qualify it as 'civile,' unless 'jus' may be employed -with some other qualification and with a distinctive meaning. But -the 'jus naturale,' as he understands it, has no meaning other than -that of 'potentia,' and his theory as it stands would have been more -clearly expressed if instead of 'jus naturale' and 'jus civile' he -had spoken of 'potentia' and 'jus,' explaining that the latter was a -power on the part of one man against others, maintained by means of -an 'imperium' which itself results from a combination of 'powers.' -He himself in one passage shows a consciousness of the impropriety -of speaking of 'jus' except with reference to a community; 'jus -naturae, quod humani generis proprium est, vix posse concipi, nisi -ubi homines jura habent communia, qui simul terras, quas habitare -et colere possunt, sibi vindicare, seseque munire, vimque omnem -repellere et ex communi omnium sententia vivere possunt' (II. 15). He -takes no notice, however, of any forms of community more primitive -than that of the state. The division into the 'status naturalis' -and the 'status civilis' he seems to treat as exhaustive, and the -'status naturalis' he regards, after the manner of his time, as one -of pure individualism, of simple detachment of man from man, or of -detachment only modified by conflict. From such a 'status naturalis,' -lacking both the natural and the rational principles of social -development (the natural principle, i.e. the interest in others -arising primarily from family ties, and the rational principle, i.e. -the power of conceiving a good consisting in the more perfect being -of the individual and of those in whom he is interested), no process -could be traced to the 'status civilis.' The two 'status' stand over -against each other with an impassable gulf between. 'Homines civiles -non nascuntur, sed fiunt.' They are so made, he seems to hold, by -the action of the 'imperium' upon them. But how is the 'imperium' -to be made? Men must first be, if not 'civiles,' yet something very -different from what they are in the 'status naturalis,' between which -and the 'status civilis' Spinoza recognises no middle term, before -any 'imperium' which could render them 'civiles' could be possible. - -38. The cardinal error of Spinoza's 'Politik' is the admission of the -possibility of a right in the individual apart from life in society, -apart from the recognition by members of a society of a correlative -claim upon and duty to each other, as all interested in one and the -same good. The error was the error of his time, but with Spinoza it -was confirmed by his rejection of final causes. The true conception -of 'right' depends on the conception of the individual as being -what be really is in virtue of a function which he has to fulfil -relatively to a certain end, that end being the common well-being -of a society. A 'right' is an ideal attribute ('ideal' in the sense -of not being sensibly verifiable, not reducible to any perceivable -fact or facts) which the individual possesses so far as this function -is in some measure freely fulfilled by him--i.e. fulfilled with -reference to or for the sake of the end--and so far as the ability -to fulfil it is secured to him through its being recognised by the -society as properly belonging to him. The essence of right lies in -its being not simply a power producing sensible effects, but a power -relative to an insensible function and belonging to individuals only -in so far as each recognises that function in himself and others. It -is not in so far as I _can_ do this or that, that I have a right to -do this or that, but so far as I recognise myself and am recognised -by others as able to do this or that for the sake of a common good, -or so far as in the consciousness of myself and others I have a -function relative to this end. Spinoza, however, objects to regard -anything as determined by relation to a final cause. He was not -disposed therefore to regard individuals as being what they are in -virtue of functions relative to the life of society, still less as -being what they are in virtue of the recognition by each of such -functions in himself and others. He looked upon man, like everything -else in nature, as determined by material and efficient causes, and -as himself a material and efficient cause. But as such he has no -'rights' or 'duties,' but only 'powers.' - -39. It was because Plato and Aristotle conceived the life of the -πόλις [1] so clearly as the τέλος of the individual, relation to -which makes him what he is--the relation in the case of the πολίτης -proper being a conscious or recognised relation--that they laid the -foundation for all true theory of 'rights.' It is true that they have -not even a word for 'rights.' The claims which in modern times have -been advanced on behalf of the individual against the state under -the designation 'natural rights' are most alien from their way of -thinking. But in saying that the πόλις was a 'natural' institution -and that man was φύσει πολιτικός, Aristotle, according to the sense -which he attached to πόλις, was asserting the doctrine of 'natural -rights' in the only sense in which it is true. He regards the state -(πόλις) as a society of which the life is maintained by what its -members do for the sake of maintaining it, by functions consciously -fulfilled with reference to that end, and which in that sense imposes -duties; and at the same time as a society from which its members -derive the ability, through education and protection, to fulfil their -several functions, and which in that sense confers rights. It is thus -that the πολίτης μετέχει τοῦ ἄρχειν καὶ τοῦ ἄρχεσθαι. Man, being -φύσει πολίτης,--being already in respect of capacities and tendencies -a member of such a society, existing only in κοινωνίαι which contain -its elements,--has 'naturally' the correlative duties and rights -which the state imposes and confers. Practically it is only the Greek -man that Aristotle regards as φύσει πολίτης, but the Greek conception -of citizenship once established was applicable to all men capable of -a common interest. This way of conceiving the case, however, depends -on the 'teleological' view of man and the forms of society in which -he is found to live, i.e. on the view of men as being what they are -in virtue of non-sensible functions, and of certain forms of life -determined by relation to more perfect forms which they have the -capacity or tendency to become. - -[1] [Greek πόλις (polis) = city, τέλος (telos) = end or purpose, -πολίτης (polites) = citizen, φύσει πολίτης or φύσει πολιτικός (physei -polites or politikos) = social or a citizen by nature, πολίτης -μετέχει τοῦ ἄρχειν καὶ τοῦ ἄρχεσθαι (polites metechei tou archein kai -tou archesthai) = a citizen by turns rules and is ruled, κοινωνίαι -(koinoniai) = associations. Tr] - -40. Spinoza, like Bacon, found the assumption of ends which things -were meant to fulfil in the way of accurate inquiry into what things -are (materially) and do. He held Plato and Aristotle cheap as -compared with Democritus and Epicurus (_Epist_. LX. 13). Accordingly -he considers the individual apart from his vocation as a member of -society, the state apart from its office as enabling the individual -to fulfil that vocation. Each, so considered, is merely a vehicle of -so much power (natural force). On the other hand, he recognises a -difference between a higher and lower, a better and worse, state of -civil society, and a possibility of seeking the better state because -it is understood to be better. And this is to admit the possibility -of the course of human affairs being affected by the conception of -a final cause. It is characteristic of Spinoza that while he never -departs from the principle 'homo naturae pars,' he ascribes to him -the faculty of understanding the order of nature, and of conforming -to it or obeying it in a new way on account of that understanding. -In other words, he recognised the distinction called by Kant the -distinction between determination according to law and determination -according to the consciousness of law; though in his desire to assert -the necessity of each kind of determination he tends to disguise the -distinction and to ignore the fact that, if rational determination -(or the determination by a conception of a law) is a part of nature, -it is so in quite a different sense from determination merely -according to laws of nature. As he puts it, the clear understanding -that we are parts of nature, and of our position in the universe -of things, will yield a new character. We shall only then desire -what is ordained for us and shall find rest in the truth, in the -knowledge of what is necessary. This he regards as the highest state -of the individual, and the desire to attain it he evidently considers -the supreme motive by which the individual should be governed. The -analogue in political life to this highest state of the individual -is the direction of the 'imperium' by a 'libera multitudo' to the -attainment of 'pax vitaeque securitas' in the high sense which he -attaches to those words in _Tract. Pol_. cap. V. [1] - -[1] Cp. _Eth_. IV. _Appendix_, xxxii. 'Ea quae nobis eveniunt contra -id, quod nostrae utilitatis ratio postulat, aequo animo feremus, -si conscii simus nos functos nostro officio fuisse, et potentiam, -quam habemus, non potuisse se eo usque extendere, ut eadem vitare -possemus, nosque partem totius naturae esse, cujus ordinem sequimur. -Quod si clare et distincte intelligamus, pars illa nostri, quae -intelligentia definitur, hoc est, pars melior nostri, in eo plane -acquiescet et in ea acquiescentia perseverare conabitur. Nam quatenus -intelligimus, nihil appetere nisi id, quod necessarium est, nec -absolute nisi in veris acquiescere possumus; adeoque quatenus haec -recte intelligimus, eatenus conatus melioris partis nostri cum ordine -totius naturae convenit.' _Eth_. IV. Preface ... 'Per _bonum_ ... -intelligam id, quod certo scimus medium esse, ut ad exemplar humanae -naturae, quod nobis proponimus, magis magisque accedamus.... Deinde -homines _perfectiores_ aut _imperfectiores_ dicemus, quatenus ad hoc -idem exemplar magis aut minus accedunt.' - -41. The conclusion, then, is that Spinoza did really, though not -explicitly, believe in a final cause determining human life. That -is to say, he held that the conception of an end consisting in the -greater perfection of life on the part of the individual and the -community might, and to some extent did, determine the life of the -individual and the community. He would have said no doubt that -this end, like every good, existed only in our consciousness; that -it was 'nihil positivum in rebus in se consideratis' (_Ethics_, -IV. Preface); but an existence of the end in human consciousness, -determining human action, is a sufficiently real existence, without -being 'positivum in rebus.' But he made the mistake of ignoring the -more confused and mixed forms in which the conception of this end -operates; of recognising it only in the forms of the philosophic -'amor Dei,' or in the wisdom of the exceptional citizen, whom alone -he would admit 'ratione duci.' And in particular he failed to notice -that it is the consciousness of such an end to which his powers may -be directed, that constitutes the individual's claim to exercise -them as rights, just as it is the recognition of them by a society -as capable of such direction which renders them actually rights; in -short that, just as according to him nothing is good or evil but -thinking makes it so, so it is only thinking that makes a might a -right,--a certain conception of the might as relative to a social -good on the part at once of the person or persons exercising it, and -of a society which it affects. - - C. _HOBBES_. - -42. All the more fruitful elements in Spinoza's political doctrine -are lacking in that of Hobbes, but the principle of the two theories -is very much the same. Each begins with the supposition of an -existence of human individuals, unaffected by society, and each -struggling for existence against the rest, so that men are 'natura -hostes.' Each conceives 'jus naturale' as = 'potentia naturalis.' -But Spinoza carries out this conception much more consistently. He -does not consider that the natural right, which is might, ceases to -exist or becomes anything else when a multitude combine their natural -rights or mights in an 'imperium.' If the ostensible 'imperium' comes -into collision with the powers of individuals, single or combined, -among those who have hitherto been subject to it, and proves the -weaker, it _ipso facto_ ceases to be an 'imperium.' Not having -superior power, it no longer has superior right to the 'subditi.' -It is on this principle, as we have seen, that he deals with the -question of limitations to the right of a sovereign. Its rights are -limited because its powers are so. Exercised in certain ways and -directions they defeat themselves. Thus as he puts it in _Epist_. -L. (where he points out his difference from Hobbes), 'Supremo -magistratui in qualibet urbe non plus in subditos juris, quam juxta -mensuram potestatis, qua subditum superat, competere statuo.' Hobbes, -on the other hand, supposes his sovereign power to have an absolute -right to the submission of all its subjects, singly or collectively, -irrespectively of the question of its actual power against them. This -right he considers it to derive from a covenant by which individuals, -weary of the state of war, have agreed to devolve their 'personae,' -in the language of Roman law, upon some individual or collection -of individuals, which is henceforward to represent them, and to be -considered as acting with, their combined powers. This covenant being -in the nature of the case irrevocable, the sovereign derives from it -an indefeasible right to direct the actions of all members of the -society over which it is sovereign. - -43. The doctrine may be found in _Leviathan_, Part II., chapter 17. -In order 'to erect such a common power as may be able to defend them -from the invasion of foreigners and the injuries of one another,' -men 'confer all their power and strength upon one man or upon one -assembly of men,' ... i.e. 'appoint one man or assembly of men to -bear their person.... This is more than consent and concord; it is a -real unity of them all in one and the same person, made by covenant -of every man with every man, in such a manner as if every man should -say to every man, 'I authorise, and give up my right of governing -myself to this man or this assembly of men, on condition that thou -give up thy right to him and authorise all his actions in like -manner.' This done, the multitude so united in one person is called -a commonwealth, in Latin _civitas_ ... which (to define it) is one -person, of whose acts a great multitude by mutual covenant one with -another have made themselves everyone the author, to the end he may -use the strength and means of them all, as he shall think expedient, -for their peace and common defence. And he that carrieth this person -is called sovereign, and said to have sovereign power; and everyone -besides, his subject.' - -44. In order to understand the form in which the doctrine is stated, -we have to bear in mind the sense in which 'persona' is used by -the Roman lawyers, as = either a complex of rights, or the subject -(or possessor) of those rights, whether a single individual or -a corporate body. In this sense of the word, a man's person is -separable from his individual existence as a man. 'Unus homo sustinet -plures personas.' A magistrate, e.g., would be one thing in respect -of what he is in himself, another thing in respect of his 'persona' -or complex of rights belonging to him as a magistrate, and so too a -monarch. On the same principle, a man, remaining a man as before, -might devolve his 'persona,' the complex of his rights, on another. -A son, when by the death of his father according to Roman law he was -delivered from 'patria potestas' and became in turn head of a family, -acquired a 'persona' which he had not before, the 'persona' which had -previously belonged to the father. Again, to take a modern instance, -the fellows of a college, as a corporation, form one 'persona,' but -each of them would bear other 'persons,' if, e.g., they happened to -be magistrates, or simply in respect of their rights as citizens. -Thus 'one person' above = one sustainer of rights; while in the -second passage, ... 'carrieth this person,' it rather = the rights -sustained. - -45. Hobbes expressly states that the sovereign 'person' may be an -_assembly_ of men, but the natural associations of the term, when -the sovereign is spoken of as a person, favour the development of a -monarchical doctrine of sovereignty. - -Sovereign power is attained either by acquisition or institution. By -acquisition, when a man makes his children and their children, or a -conqueror his enemies, to submit under fear of death. By institution, -when men agree among themselves to submit to some man or assembly -'on confidence to be protected against all others.' Hobbes speaks -(II. 17, end) as if there were two ways by which a commonwealth -and a sovereign defined as above could be brought into existence, -but clearly a sovereign by acquisition is not a sovereign in the -sense explained. He does not 'carry a person of whose acts a great -multitude by _mutual covenant_ one with another, have made themselves -everyone the author, to the end he may use the strength and means of -them all, as he shall think expedient, for their peace and common -defence.' And what Hobbes describes in the sequel (c. 18) are, as he -expressly says, rights of sovereigns by institution; but he seems -tacitly to assume that every sovereign may claim the same, though he -could hardly have supposed that the existing sovereignties were in -their origin other than sovereignties by acquisition. - -'A commonwealth is said to be instituted, when a multitude of men -covenant, everyone with everyone, that to whatsoever man or assembly -of men shall be given by the major part the right to represent the -person of them all, everyone, as well he that voted for it as he -that voted against it, shall authorise all the actions and judgments -of that man or assembly of men, in the same manner as if they were -his own, to the end to live peaceably amongst themselves, and to be -protected against other men' (c. 18). Here a distinction is drawn -between the covenant of all with all to be bound by the act of the -majority in appointing a sovereign, and that act of appointment -itself which is not a covenant of all with all. The natural -conclusion would be that it was no violation of the covenant if the -majority afterwards transferred the sovereign power to other hands. -But in the sequel Hobbes expressly makes out such a transference to -be a violation of the original compact. This is an instance of his -desire to vindicate the absolute right of a _de facto_ monarch. - -46. Throughout these statements we are moving in a region of fiction -from which Spinoza keeps clear. Not only is the supposition of -the devolution of wills or powers on a sovereign by a covenant -historically a fiction (about that no more need be said); the -notion of an obligation to observe this covenant, as distinct from -a compulsion, is inconsistent with the supposition that there is -no right other than power prior to the act by which the sovereign -power is established. If there is no such right antecedent to the -establishment of the sovereign power, neither can there be any -after its establishment except in the sense of a power on the part -of individuals which the sovereign power enables them to exercise. -This power, or 'jus civile,' cannot itself belong to the sovereign, -who enables individuals to exercise it. The only right which can -belong to the sovereign is the 'jus naturale,' [1] consisting in the -superiority of his power, and this right must be measured by the -inability of the subjects to resist. If they _can_ resist, the right -has disappeared. In a successful resistance, then, to an ostensibly -sovereign power, there can on the given supposition be no wrong done -to that power. To say that there is, would be a contradiction in -terms. Is such resistance, then, a violation of the 'jus civile' as -between the several subject citizens? In the absence of a sovereign -power, no doubt, the 'jus civile' (according to the view in question, -which makes it depend on the existence of an 'imperium') would cease -to exist. But then a successful resistance would simply show that -there was no longer such a sovereign power. It would not itself be a -violation of 'jus civile,' but simply a proof that the conditions of -'jus civile' were no longer present. It might at the same time be a -step to re-establishing them if, besides being a proof that the old -'imperium' no longer exists, it implied such a combination of powers -as suffices to establish a new one. - -[1] 'The 'jus naturale' is the liberty each man hath to use his own -power as he will himself for the preservation of his own nature; that -is to say of his own life; and consequently of doing anything which -in his own judgment and reason he shall conceive to be the aptest -means thereunto.' (_Lev_., I. 14.) - -47. No obligation, then, as distinct from compulsion, to submit -to an ostensibly sovereign power can consistently be founded on -a theory according to which right either = simple power, or only -differs from it, in the form of 'jus civile,' through being a power -which an 'imperium' enables individuals to exercise as against each -other. Hobbes could not, indeed, have made out his doctrine (of the -absolute submission to the sovereign) with any plausibility, if he -had stated with the explicitness of Spinoza that 'jus naturale' = -'naturalis potentia.' That it is so is implied in the account of the -state of things preceding the establishment of sovereignty as one -of 'bellum omnium contra omnes'; for where there is no recognition -of a common good, there can be no right in any other sense than -power. But where there are no rights but natural power, no obligatory -covenant can be made. In order, however, to get a sovereignty, to -which there is a perpetual obligation of submission, Hobbes has to -suppose a covenant of all with all, preceding the establishment of -sovereignty, and to the observance of which, therefore, there cannot -be an obligation in the sense that the sovereign punishes for the -non-observance (the obligation corresponding to 'jus civile' in -Spinoza's sense), but which no one can ever be entitled to break. -As the obligatoriness of this covenant, then, cannot be derived -from the sovereignty which is established through it, Hobbes has to -ascribe it to a 'law of nature' which enjoins 'that men perform their -covenants made' (_Lev_., I. 15). Yet in the immediate sequel of this -passage he says expressly, 'The nature of justice consisteth in the -keeping of valid covenants, but the validity of covenants begins not -but with the constitution of a civil power, sufficient to compel men -to keep them; and then it is also that propriety begins.' On this -principle the covenant by which a civil power is for the first time -constituted cannot be a valid covenant. The men making it are not in -a position to make a valid covenant at all. The 'law of nature,' to -which alone Hobbes can appeal according to his principles, as the -source of the obligatoriness of the covenant of all with all, he -defines as a 'precept or general rule, found out by reason, by which -a man is forbidden to do that which is destructive of his life, or -taketh away the means of preserving the same; and to omit that by -which he thinketh it may best be preserved' (I. 14). When a law of -nature, however, is said to command or forbid, we must not understand -those terms in that sense which, according to Hobbes, could only -be derived from the establishment of an 'imperium.' This 'law of -nature,' therefore, is merely an expression in a general form of the -instinct by which, as Spinoza says, every living creature 'in suo -esse perseverare conatur,' as guided by a calculation of consequences -(for no meaning but this can be given to 'reason' according to -Hobbes). The prohibition, then, by this law of nature of a breach of -that covenant of all with all, by which a sovereign power is supposed -to be established, can properly mean nothing more than that it is -everyone's interest to adhere to it. This, however, could only be a -conditional prohibition, conditional, in particular, on the way in -which the sovereign power is exercised. Hobbes tries to show that it -must always be for the advantage of all to obey it, because not to -do so is to return to the state of universal war; but a successful -resistance to it must be _ipso facto_ an establishment of a new -combined power which prevents the 'bellum omnium contra omnes' from -returning. At any rate, an obligation to submit to the established -'imperium,' measured by the self-interest of each in doing so, is -quite a different thing from the obligation which Hobbes describes in -terms only appropriate (according to his own showing) to contracts -between individuals enforced by a sovereign power. - -48. It would seem that Hobbes' desire to prove all resistance -to established sovereignty unjustifiable leads him to combine -inconsistent doctrines. He adopts the notion that men are 'natura -hostes,' that 'jus naturale' = mere power, because it illustrates -the benefit to man's estate derived from the establishment of a -supreme power and the effects of the subversion of such power once -established, which he assumes to be equivalent to a return to a -state of nature. But this notion does not justify the view that a -rebellion, which is strong enough to succeed, is wrong. For this -purpose he has to resort to the representation of the sovereign as -having a right distinct from power, founded on a contract of all -with all, by which sovereignty is established. This representation -is quite alien to Spinoza, with whom sovereignty arises, it is true, -when 'plures in unum conveniunt,' but in the sense of combining -their powers, not of contracting. But after all, the fiction of this -contract will not serve the purpose which Hobbes wants it to serve. -The sovereignty established by the contract can only have a _natural_ -right to be maintained inviolate, for all other right presupposes it, -and cannot be presupposed by it. If this natural right means mere -power, then upon a successful rebellion it disappears. If it means -anything else it must mean that there are natural rights of men, -other than their mere power, which are violated by its subversion. -But if there are such rights, there must equally be a possibility of -collision between the sovereign power and these natural rights, which -would justify a resistance to it. - -49. It may be asked whether it is worth while to examine the internal -consistency of a theory which turns upon what is admitted to be -historically a fiction, the supposition of a contract of all with -all. There are fictions and fictions however. The supposition that -some event took place which as a matter of history did not take place -may be a way of conveying an essentially true conception of some -moral relation of man. The great objection to the representation -of the right of a sovereign power over subjects, and the rights -of individuals which are enforced by this 'imperium,' as having -arisen out of a contract of all with all, is that it conveys a -false notion of rights. It is not merely that the possibility of -such a contract being made presupposes just that state of things--a -_régime_ of recognised and enforced obligations--which it is assumed -to account for. Since those who contract must already have rights, -the representation of society with its obligations as formed by -contract implies that individuals have certain rights, independently -of society and of their functions as members of a society, which they -bring with them to the transaction. But such rights abstracted from -social function and recognition could only be powers, or (according -to Hobbes' definition) liberties to use powers, which comes to the -same; i.e. they would not be rights at all; and from no combination -or devolution of them could any right in the proper sense, anything -more than a combined power, arise. - -50. Thus the only logical development of that separation of right -from social duty which is implied in the doctrine of 'social -contract' is that of Spinoza. Happily the doctrine has not been -logically developed by those whose way of thinking has been affected -by it. The reduction of political right--the right of the state over -its subjects--to superior power, has not been popularly accepted, -though the general conception of _national_ right seems pretty much -to identify it with power. Among the enlightened, indeed, there has -of late appeared a tendency to adopt a theory very like that of -Spinoza, without the higher elements which we noticed in Spinoza; -to consider all right as a power attained in that 'struggle for -existence' to which human 'progress' is reduced. But for one person, -who, as a matter of speculation, considers the right of society over -him to be a disguised might, there are thousands who, as a matter of -practice, regard their own right as independent of that correlation -to duty without which it is merely a might. The popular effect of -the notion that the individual brings with him into society certain -rights which he does not derive from society,--which are other than -claims to fulfil freely (i.e. for their own sake) certain functions -towards society,--is seen in the inveterate irreverence of the -individual towards the state, in the assumption that he has rights -against society irrespectively of his fulfilment of any duties to -society, that all 'powers that be' are restraints upon his natural -freedom which he may rightly defy as far as he safely can. - - D. _LOCKE._ - -51. It was chiefly Rousseau who gave that cast to the doctrine of -the origin of political obligation in contract, in which it best -lends itself to the assertion of rights apart from duties on the part -of individuals, in opposition to the counter-fallacy which claims -rights for the state irrespectively of its fulfilment of its function -as securing the rights of individuals. It is probably true that -the _Contrat Social_ had great effect on the founders of American -independence, an effect which appears in the terms of the Declaration -of Independence and in preambles to the constitutions of some of the -original American states. But the essential ideas of Rousseau are -to be found in Locke's _Treatise of Civil Government_, which was -probably well known in America for half a century before Rousseau was -heard of. [1] Locke again constantly appeals to Hooker's first book -on _Ecclesiastical Polity_,[2] and Grotius[3] argues in exactly the -same strain. - -Hooker, Grotius, Hobbes, Locke, and Rousseau only differ in their -application of the same conception; viz. that men live first in a -state of nature, subject to a law of nature, also called the law of -reason; that in this state they are in some sense free and equal; -that 'finding many inconveniences' in it they covenant with each -other to establish a government--a covenant which they are bound by -the 'law of nature' to observe--and that out of this covenant the -obligation of submission to the 'powers that be' arises. Spinoza -alone takes a different line: he does not question the state of -nature or the origin of government in a combination of men who find -the state of nature 'inconvenient'; but he regards this combination -as one of powers directed to a common end, and constituting superior -force, not as a covenant which men are bound by the law of nature to -observe. - -[1] Locke, _Civil Government_, chap. vii. sec. 87. 'Man, being born -with a title to perfect freedom, and an uncontrolled enjoyment of -all the rights and privileges of the law of nature, equally with any -other man or number of men in the world, hath by nature a power not -only to preserve his life, liberty, and estate against ... other men; -but to judge of and punish the breaches of that law in others.... -There, and there only, is political society where every one of -the members hath quitted this natural power, resigned it up into -the hands of the community in all cases that exclude him not from -appealing for protection to the law established by it.' - -[2] 'Laws human, of what kind soever, are available by consent,' -Hooker, _Eccl. Pol_. I. 10 (quoted by Locke, _l.c._ chap. xi. sec. -134). 'To be commanded we do consent, when that society, whereof we -be a part, hath at any time before consented, without revoking the -same after by the like universal agreement.' Hooker;_ ibid_. - -[3] _De jure belli et pacis_, Proleg. secs. 15 and 16. - -52. The common doctrine is so full of ambiguities that it readily -lends itself to opposite applications. In the first place 'state of -nature' may be understood in most different senses. The one idea -common to all the writers who suppose such a state to have preceded -that of civil society is a negative one. It was a state which was -_not_ one of political society, one in which there was no civil -government; i.e. no supreme power, exercised by a single person or -plurality of persons, which could compel obedience on the part of -all members of a society, and was recognised as entitled to do so -by them all, or by a sufficient number of them to secure general -obedience. But was it one of society at all? Was it one in which men -had no dealings with each other except in the way of one struggling -to make another serve his will and to get for himself what the other -had, or was it one in which there were ties of personal affection and -common interest, and recognised obligations, between man and man? -Evidently among those who spoke of a state of nature, there were very -various and wavering conceptions on this point. They are apt to make -an absolute opposition between the state of nature and the political -state, and to represent men as having suddenly contracted themselves -out of one into the other. Yet evidently the contract would have been -impossible unless society in a form very like that distinctively -called political had been in existence beforehand. If political -society is to be supposed to have originated in a pact at all, the -difference between it and the preceding state of nature cannot, with -any plausibility, be held to have been much more than a difference -between a society regulated by written law and officers with defined -power and one regulated by customs and tacitly recognised authority. - -53. Again, it was held that in a state of nature men were 'free and -equal.' This is maintained by Hobbes as much as by the founders of -American independence. But if freedom is to be understood in the -sense in which most of these writers seem to understand it, as a -power of executing, of giving effect to, one's will, the amount -of freedom possessed in a state of nature, if that was a state of -detachment and collision between individuals, must have been very -small. Men must have been constantly thwarting each other, and (in -the absence of that 'jus in naturam,' as Spinoza calls it, which -combination gives) thwarted by powers of nature. In such a state -those only could be free, in the sense supposed, who were _not_ -equal to the rest; who, in virtue of superior power, could use the -rest. But whether we suppose an even balance of weaknesses, in -subjection to the crushing forces of nature, or a dominion of few -over many by means of superior strength, in such a state of nature no -general pact would be possible. No equality in freedom is possible -except for members of a society of whom each recognises a good of -the whole which is also his own, and to which the free co-operation -of all is necessary. But if such society is supposed in the state -of nature--and otherwise the 'pact' establishing political society -would be impossible--it is already in principle the same as political -society. - -54. It is not always certain whether the writers in question -considered men to be actually free and equal in the state of nature, -or only so according to the 'law of nature,' which might or might -not be observed. (Hobbes represents the freedom and equality in the -state of nature as actual, and this state as being for that reason -'bellum omnium contra omnes.') They all, however, implicitly assume -a _consciousness_ of the law of nature in the state of nature. It -is thus not a law of nature in the sense in which we commonly use -the term. It is not a law according to which the agents subject to -it act necessarily but without consciousness of the law. It is a -law of which the agent subject to it has a consciousness, but one -according to which he may or may not act; i.e. one according to which -he _ought_ to act. It is from it that the obligation to submission to -civil government, according to all these writers, is derived. But in -regard to such a law, two questions have to be asked: firstly, how -can the consciousness of obligation arise without recognition by the -individual of claims on the part of others--social claims in some -form or other--which may be opposed to his momentary inclinations? -and secondly, given a society of men capable of such a consciousness -of obligation, constituting a law according to which the members -of the society are free and equal, in what does it differ from a -political society? If these questions had been fairly considered, -it must have been seen that the distinction between a political -society and a state of nature, governed by such a law of nature, was -untenable; that a state of things out of which political society -could have arisen by compact, must have been one in which the -individual regarded himself as a member of a society which has claims -on him and on which he has claims, and that such society is already -in principle a political society. But the ambiguity attending the -conception of the law of nature prevented them from being considered. -When the writers in question spoke of a law of nature, to which men -in the state of nature were subject, they did not make it clear to -themselves that this law, as understood by them, could not exist at -all without there being some recognition or consciousness of it on -the part of those subject to it. The designation of it as 'law of -nature' or 'law of God' helped to disguise the fact that there was no -imponent of it, in the sense in which a law is imposed on individuals -by a political superior. In the absence of such an imponent, unless -it is either a uniformity in the relations of natural events or an -irresistible force--and it is not represented in either of these ways -in juristic writings--it can only mean a recognition of obligation -arising in the consciousness of the individual from his relations -to society. But this not being clearly realised, it was possible to -represent the law of nature as antecedent to the laws imposed by a -political superior, without its being observed that this implied the -antecedence of a condition of things in which the result supposed -to be obtained through the formation of political society--the -establishment, viz. of reciprocal claims to freedom and equality on -the part of members of a society--already existed. - -55. In fact, the condition of society in which it could properly -be said to be governed by a law of nature, i.e. by an obligation -of which there is no imponent but the consciousness of man, an -obligation of which the breach is not punished by a political -superior, is not antecedent to political society, but one which it -gradually tends to produce. It is the radical fault of the theory -which finds the origin of political society in compact, that it has -to reverse the true process. To account for the possibility of the -compact of all with all, it has to assume a society subject to a law -of nature, prescribing the freedom and equality of all. But a society -governed by such a law as a law of nature, i.e. with no imponent -but man's consciousness, would have been one from which political -society would have been a decline, one in which there could have -been no motive to the establishment of civil government. Thus this -theory must needs be false to itself in one of two ways. Either it is -false to the conception of a law of nature, with its prescription of -freedom and equality, as governing the state of things prior to the -compact by which political society is established, only introducing -the law of nature as the ground of the obligatoriness of that -compact, but treating the state of nature as one of universal war in -which no reciprocal claims of any sort were recognised, (so Hobbes); -or just so far as it realises the conception of a society governed -by a law of nature, as equivalent to that spontaneous recognition by -each of the claims of all others, without which the covenant of all -with all is in fact unaccountable, it does away with any appearance -of necessity for the transition from the state of nature to that of -political society and tends to represent the latter as a decline from -the former. This result is seen in Rousseau; but to a great extent -Rousseau had been anticipated by Locke. The broad differences between -Locke and Hobbes in their development of the common doctrine, are -(1) that Locke denies that the state of nature is a state of war, -and (2) that Locke distinguishes the act by which political society -is established from that by which the government, legislative and -executive, is established, and is consequently able to distinguish -the dissolution of the political society from the dissolution of the -government (_Civ. Gov_. Chapter XIX. Sect. 211). - -56. The 'state of nature' and the 'state of war' 'are so far distant -as a state of peace, good-will, mutual assistance and preservation, -and a state of enmity, malice, violence, and mutual destruction, are -from one another. Men living together, according to reason, without -a common superior on earth with authority to judge between them, is -properly the state of nature. But force, or a declared design of -force, upon the person of another, where there is no common superior -on earth to appeal to for relief, is the state of war' (_Civ. Gov_. -III. Sect. 19). In the state of nature, however, when the state of -war has once begun, there is not the same means of terminating it as -in civil society. - -The right of war may belong to a man, 'though he be in society and -a fellow-subject,' when his person or property is in such immediate -danger that it is impossible to appeal for relief to the common -superior. 'But when the actual force is over, the state of war ceases -between those that are in society ... because there lies the remedy -of appeal for the past injury and to prevent future harm.' In the -state of nature, when the state of war has once begun, it continues -until the aggressor offers peace and reparation. The state of war, -though not proper to the state of nature, is a frequent incident of -it, and to avoid it is one great reason of men's putting themselves -into society (_ib_. Sect. 21). The state of nature is not one that is -altogether over and done with. 'All rulers of independent governments -all through the world are in a state of nature.' The members of one -state in dealing with those of another are in a state of nature, -and the law of nature alone binds them. 'For truth and keeping of -faith belongs to men as men, and not as members of society' (_Civ. -Gov_. II. Sect. 14). 'All men are naturally in that state and remain -so till by their own consents they make themselves members of some -politic society' (_ib_. Sect. 15). - -57. The antithesis, as put above, between the state of nature and -the state of war, can only be maintained on the supposition that the -'law of nature' is observed in a state of nature. Locke does not -explicitly state that this is the case. If it were so, it would not -appear how the state of war should arise in the state of nature. -But he evidently thought of the state of nature as one in which men -recognised the law of nature, though without fully observing it. He -quotes with approval from Hooker language which implies that not only -is the state of nature a state of equality, but that in it there is -such consciousness of equality with each other on the part of men -that they recognise the principle 'do as you would be done by' (_Civ. -Gov_. II. Sect. 5). With Hobbes, in the supposed state of nature the -'law of nature' is emphatically _not_ observed, and hence it is a -state of war. As has been pointed out above, a 'law of nature' in the -sense in which these writers use the term, as a law which obliges but -yet has no imponent in the shape of a sovereign power, is, as Locke -says (Sect. 136), 'nowhere to be found but in the minds of men'; it -can only have its being in the consciousness of those subject to it. -If therefore we are to suppose a state of nature in which such a law -of nature exists, it is more consistent to conceive it in Locke's -way than in that of Hobbes; more consistent to conceive it as one in -which men recognise duties to each other than as a 'bellum omnium -contra omnes.' - -58. As to the second point, from his own conception of what men -are in the state of nature, and of the ends for which they found -political societies, Locke derives certain necessary limitations -of what the supreme power in a commonwealth may rightfully do. The -prime business of the political society, once formed, is to establish -the legislative power. This is 'sacred and unalterable in the hands -where the community have once placed it' (_Civ. Gov_. XI. Sect. 134); -'unalterable,' that is, as we gather from the sequel, by anything -short of an act of the community which originally placed it in these -hands. But as men in a state of nature have 'no arbitrary power' over -each other (which must mean that according to the 'law of nature' -they have no such power), so they cannot transfer any such power to -the community nor it to the legislature. No legislature can have the -right to destroy, enslave, or designedly impoverish the subjects. And -as no legislature can be entitled to do anything which the individual -in the state of nature would not by the law of nature be entitled to -do, so its great business is to declare the law of nature in general -terms and administer it by known authorised judges. The state of -nature, Locke seemed to think, would have done very well, but for -the inconvenience of every man being judge in his own case of what -the law of nature requires. It is to remedy this inconvenience by -establishing (1) a settled law, received by common consent, (2) a -known and indifferent judge, (3) a power to enforce the decisions of -such a judge, that political society is formed. - -Hence a legislature violates the 'trust that is put in it' by society -unless it observes the following rules: (1) it is to govern 'by -promulgated established laws,' not to be varied to suit particular -interests; (2) these laws are to be designed only for the good of -the people; (3) it must not raise taxes but by consent of the people -through themselves or their deputies; (4) it neither 'must, nor -can, transfer the power of making laws to anybody else, or place it -anywhere but where the people have' (_Civ. Gov_. XI. Sect. 142). - -59. Thus 'the legislative being only a fiduciary power to act for -certain ends, there remains still in the people a supreme power -to remove or alter the legislature.' Subject to this ultimate -'sovereignty' (a term which Locke does not use) of the people, the -legislative is necessarily the supreme power, to which the executive -is subordinate. An appearance to the contrary can only arise in cases -where (as in England) the supreme executive power is held by a person -who has also a share in the legislative. Such a person may 'in a -very tolerable sense be called supreme.' It is not, however, to him -as supreme legislator (which he is not, but only a participator in -supreme legislation) but to him as supreme executor of the law that -oaths of allegiance are taken. It is only as executing the law that -he can claim obedience, his executive power being, like the power -of the legislative, 'a fiduciary trust placed in him' to enforce -obedience to law and that only (_Civ. Gov_. XIII. Sect. 151). This -distinction of the supreme power of the people from that of the -supreme executive, corresponding to a distinction between the act of -transferring individual powers to a society and the subsequent act -by which that society establishes a particular form of government, -enables Locke to distinguish what Hobbes had confounded, the -dissolution of government and the dissolution of political society. - -60. He gets rid of Hobbes' notion, that because the 'covenant of all -with all,' by which a sovereignty is established, is irrevocable, -therefore the government once established is unalterable. He -conceives the original pact merely as an agreement to form a civil -society, which must indeed have a government, but not necessarily -always the same government. The pact is a transfer by individuals of -their natural rights to a society, and can only be cancelled through -the dissolution of the society by foreign conquest. The delegation -by the society of legislative and executive powers to a person or -persons is a different matter. The society always retains the right, -according to Locke, of resuming the powers thus delegated, and must -exercise the light in the event either of the legislative being -altered, (placed in different hands from those originally intended), -of a collision between its executive and legislative officers, or of -a breach between different branches of the legislature (when as in -England there are such different branches), or when legislative and -executive or either of them 'act contrary to their trust.' He thus in -effect vindicates the right of revolution, ascribing to a 'sovereign -people' the attributes which Hobbes assigned to a 'person,' single -or corporate, on which the people forming a society were supposed by -an irrevocable act to have devolved their powers. In other words, -he considered the whole civil society in all cases to have the -rights which Hobbes would only have allowed it to possess where the -government was not a monarchy or aristocracy but a democracy; i.e. -where the supreme 'person' upon which all devolve their several -'personae' is an 'assembly of all who will come together.' As such -a democracy did not then exist in Europe, any more than it does -now, except in some Swiss cantons, the practical difference between -the two views was very great. Both Locke and Hobbes wrote with a -present political object in view, Hobbes wishing to condemn the -Rebellion, Locke to justify the Revolution. For practical purposes, -Locke's doctrine is much the better; but if Hobbes' translation -of the irrevocableness of the covenant of all with all into the -illegitimacy of resistance to an established government in effect -entitles any tyrant [l] to do as he likes, on the other hand, it is -impossible upon Locke's theory to pronounce when resistance to a _de -facto_ government is legitimate or otherwise. It would be legitimate -according to him when it is an act of the 'sovereign people' (not -that Locke uses the phrase), superseding a government which has been -false to its trust. But this admitted, all sorts of questions arise -as to the means of ascertaining what is and what is not an act of the -'sovereign people.' - -[1] According to Hobbes, tyranny = 'monarchy misliked'; oligarchy = -'aristocracy misliked.' - -61. The rapid success of the revolution without popular disorder -prevented Locke's theory from becoming of importance, but in the -presence of such sectarian enthusiasm as existed in Hobbes' time -it would have become dangerous. It would not any more than that of -Hobbes justify resistance to 'the powers that be' on the part of any -body of men short of the civil society acting as a whole, i.e. by a -majority. The sectaries of the time of the Rebellion, in pleading -a natural or divine right to resist the orders of the government, -would have been as much condemned by Locke's theory as by that of -Hobbes. But who can say when any popular action by which established -powers, legislative or executive, are resisted or altered is an -act of the 'sovereign people,' of the civil society acting as a -whole, or no. Where government is democratic, in Hobbes' sense, -i.e. vested in an assembly of all who will come together, the act -of the 'sovereign people' is unmistakeable. It is the act of the -majority of such an assembly. But in such a case the difficulty -cannot arise. There can be no withdrawal by the sovereign people -of power from its legislative or executive representatives, since -it has no such representatives. In any other case it would seem -impossible to say whether any resistance to, or deposition of, an -established legislative or executive is the act of the majority of -the society or no Any sectary or revolutionary may plead that he has -the 'sovereign people' on his side. If he fails, it is not certain -that he has them not on his side; for it may be that, though he has -the majority of the society on his side, yet the society has allowed -the growth within it of a power which prevents it from giving effect -to its will. On the other hand, if the revolution succeeds, it is not -certain that it had the majority on its side when it began, though -the majority may have come to acquiesce in its result. In short, -on Locke's principle that any particular government derives its -authority from an act of the society, and society by a like act may -recall the authority, how can we ever be entitled to say that such an -act has been exercised? - -62. It is true that there is no greater difficulty about supposing -it to be exercised in the dissolution than in the establishment of a -government, indeed not so much; but the act of first establishing a -government is thrown back into an indefinite past. It may easily be -taken for granted without further inquiry into the conditions of its -possibility. On the other hand, as the act of legitimately dissolving -a government or superseding one by another has to be imagined as -taking place in the present, the inquiry into the conditions of -its possibility cannot well be avoided. If we have once assumed -with Hobbes and Locke, that the authority of government is derived -from a covenant of all with all,--either directly or mediately by a -subsequent act in which the covenanted society delegates its powers -to a representative or representatives,--it will follow that a like -act is required to cancel it; and the difficulties of conceiving -such an act under the conditions of the present are so great, that -Hobbes' view of the irrevocableness of the original act by which -any government was established has much to say for itself. If the -authority of any government--its claim on our obedience--is held to -be derived not from an original covenant, or from any covenant, but -from the function which it serves in maintaining those conditions -of freedom which are conditions of the moral life, then no act of -the people in revocation of a prior act need be reckoned necessary -to justify its dissolution. If it ceases to serve this function, -it loses its claim on our obedience. It is a παρέκβασις. [1] (Here -again the Greek theory, deriving the authority of government not -from consent but from the end which it serves, is sounder than the -modern.) Whether or no any particular government has on this ground -lost its claim and may be rightly resisted, is a question, no doubt, -difficult for the individual to answer with certainty. In the long -run, however, it seems generally if not always to answer itself. A -government no longer serving the function described--which, it must -be remembered, is variously served according to circumstances--brings -forces into play which are fatal to it. But if it is difficult -upon this theory for the individual to ascertain, as a matter of -speculation, whether resistance to an established government is -justified or no, at any rate upon this theory such a justification of -resistance is possible. Upon Locke's theory, the condition necessary -to justify it--viz. an act of the whole people governed--is one -which, anywhere except in a Swiss canton, it would be impossible -to fulfil. For practical purposes, Locke comes to a right result -by ignoring this impossibility. Having supposed the reality of one -impossible event,--the establishment of government by compact or -by the act of a society founded on compact,--he cancels this error -in the result by supposing the possibility of another transaction -equally impossible, viz, the collective act of a people dissolving -its government. - -[1] [Greek παρέκβασις (parekbasis) = a government without a proper -basis Tr] - -63. It is evident from the chapter (XIX.) on the 'dissolution of -government' that he did not seriously contemplate the conditions -under which such an act could be exercised. What he was really -concerned about was to dispute 'the right divine to govern wrong' -on the part of a legislative as much as on the part of an executive -power; to maintain the principle that government is only justified -by being for the good of the people, and to point out the difference -between holding that some government is necessarily for the good of -the people, and holding that any particular government is for their -good, a difference which Hobbes had ignored. In order to do this, -starting with the supposition of an actual deed on the part of a -community establishing a government, he had to suppose a reserved -right on the part of the community by a like deed to dissolve -it. But in the only particular case in which he contemplates a -loss by the legislature of its representative character, he does -not suggest the establishment of another by an act of the whole -people. He saw that the English Parliament in his time could not -claim to be such as it could be supposed that the covenanting -community originally intended it to be. 'It often comes to pass,' -he says, 'in governments where part of the legislative consists of -representatives chosen by the people, that in tract of time this -representation becomes very unequal and disproportionate to the -reasons it was first established upon.... The bare name of a town, -of which there remains not so much as the ruins, where scarce so -much housing as a sheepcote, or more inhabitants than a shepherd is -to be found, sends as many representatives to the grand assembly of -law-makers, as a whole county, numerous in people, and powerful in -riches. This strangers stand amazed at, and everyone must confess -needs a remedy; though most think it hard to find one, because the -constitution of the legislative being the original and supreme act -of the society antecedent to all positive laws in it, and depending -wholly on the people, no inferior power can alter it. And therefore -the people, when the legislative is once constituted, having, in such -a government as we have been speaking of, no power to act as long as -the government stands, this inconvenience is thought incapable of a -remedy' (Chapter XIII. Sect. 157). The only remedy which he suggests -is not an act of the sovereign people, but an exercise of prerogative -on the part of the executive, in the way of redistributing -representation, which would be justified by 'salus populi suprema -lex.' - - E. _ROUSSEAU._ - -64. That 'sovereignty of the people,' which Locke looks upon as -held in reserve after its original exercise in the establishment -of government, only to be asserted in the event of a legislature -proving false to its trust, Rousseau supposes to be in constant -exercise. Previous writers had thought of the political society -or commonwealth, upon its formation by compact, as instituting a -sovereign. They differed chiefly on the point whether the society -afterwards had or had not a right of displacing an established -sovereign. Rousseau does not think of the society, _civitas_ or -commonwealth, as thus instituting a sovereign, but as itself in the -act of its formation becoming a sovereign and ever after continuing -so. - -65. In his conception of a state of nature, Rousseau does not differ -from Locke. He conceives the motive for passing out of it, however, -somewhat differently and more after the manner of Spinoza. With -Locke the motive is chiefly a sense of the desirability of having -an impartial judge, and efficient enforcement of the law of nature. -According to Rousseau, some pact takes place when men find the -hindrances to their preservation in a state of nature too strong for -the forces which each individual can bring to bear against them. -This recalls Spinoza's view of the 'jus in naturam' as acquired by a -combination of the forces of individuals in civil society. - -66. The 'problem of which the social contract is a solution' Rousseau -states thus: 'To find a form of association which protects with the -whole common force the person and property of each associate, and in -virtue of which everyone, while uniting himself to all, only obeys -himself and remains as free as before.' (_Contrat Social_, I, vi.) -The terms of the contract which solves this problem Rousseau states -thus: 'Each of us throws into the common stock his person and all -his faculties under the supreme direction of the general will; and -we accept each member as an individual part of the whole.... There -results from this act of association, in place of the several persons -of the several contracting parties, a collective moral body, composed -of as many members as there are voices in the assembly, which body -receives from this act its unity, its common self, its life, and its -will.... It is called by its members a _state_ when it is passive, a -_sovereign_ when it is active, a _power_ when compared with similar -bodies. The associates are called collectively a _people_, severally -_citizens_ as sharing in the sovereign authority, _subjects_ as -submitted to the laws of the state.' (_Ib_.) Each of them is under -an obligation in two relations, 'as a member of the sovereign body -towards the individuals, and as a member of the state towards the -sovereign.' All the subjects can by a public vote be placed under a -particular obligation towards the sovereign, but the sovereign cannot -thus incur an obligation towards itself. It cannot impose any law -upon itself which it cannot cancel. Nor is there need to restrict -its powers in the interest of the subjects. For the sovereign body, -being formed only of the individuals which constitute it, can have no -interest contrary to theirs. 'From the mere fact of its existence, -it is always all that it ought to be' (since, from the very fact of -its institution, all merely private interests are lost in it). On -the other hand, the will of the individual (his particular interest -as founded upon his particular desires) may very well conflict with -that general will which constitutes the sovereign. Hence the social -pact necessarily involves a tacit agreement, that anyone refusing to -conform to the general will shall be forced to do so by the whole -body politic; in other words, 'shall be forced to be free,' since the -universal conformity to the general will is the guarantee to each -individual of freedom from dependence on any other person or persons. -(I, vii.) - -67. The result to the individual may be stated thus. He exchanges -the natural liberty to do and get what he can, a liberty limited by -his relative strength, for a liberty at once limited and secured by -the general will; he exchanges the mere possession of such things -as he can get, a possession which is the effect of force, for a -property founded on a positive title, on the guarantee of society. At -the same time he becomes a moral agent. Justice instead of instinct -becomes the guide of his actions. For the moral slavery to appetite -he substitutes the moral freedom which consists in obedience to a -self-imposed law. Now for the first time it can be said that there is -anything which he _ought_ to do, as distinguished from that which he -is _forced_ to do. (I, viii.) - -68. Such language makes it clear that the sovereignty of which -Rousseau discusses the origin and attributes, is something -essentially different from the supreme coercive power which previous -writers on the 'jus civile' had in view. A contemporary of Hobbes had -said that - - 'there's on earth a yet auguster thing, - Veiled though it be, than Parliament and King.' - -It is to this 'auguster thing,' not to such supreme power as English -lawyers held to be vested in 'Parliament and King,' that Rousseau's -account of the sovereign is really applicable. What he says of it is -what Plato or Aristotle might have said of the θεῖος νοῦς, [1] which -is the source of the laws and discipline of the ideal polity, and -what a follower of Kant might say of the 'pure practical reason,' -which renders the individual obedient to a law of which he regards -himself, in virtue of his reason, as the author, and causes him to -treat humanity equally in the person of others and in his own always -as an end, never merely as a means. But all the while Rousseau -himself thinks that he is treating of the sovereign in the ordinary -sense; in the sense of some power of which it could be reasonably -asked how it was established in the part where it resides, when and -by whom and in what way it is exercised. A reader of him who is more -or less familiar with the legal conception of sovereignty, but not at -all with that of practical reason or of a 'general will.' a common -ego, which wills nothing but what is for the common good, is pretty -sure to retain the idea of supreme coercive power as the attribute of -sovereignty, and to ignore the attribute of pure disinterestedness, -which, according to Rousseau, must characterise every act that can be -ascribed to the sovereign. - -[1] [Greek θεῖος νοῦς (theios nous) = divine mind or intelligence Tr] - -69. The practical result is a vague exaltation of the prerogatives -of the sovereign people, without any corresponding limitation of the -conditions under which an act is to be deemed that of the sovereign -people. The justifiability of laws and acts of government, and of -the rights which these confer, comes to be sought simply in the fact -that the people wills them, not in the fact that they represent a -true 'volonté générale,' an impartial and disinterested will for the -common good. Thus the question of what really needs to be enacted -by the state in order to secure the conditions under which a good -life is possible, is lost sight of in the quest for majorities; -and as the will of the people in any other sense than the measure -of what the people will tolerate is really unascertainable in the -great nations of Europe, the way is prepared for the sophistries of -modern political management, for manipulating electoral bodies, for -influencing elected bodies, and procuring plébiscites. - -70. The incompatibility between the ideal attributes which Rousseau -ascribes to the sovereign and any power that can actually be -exercised by any man or body of men becomes clearer as we proceed. He -expressly distinguishes 'sovereignty' from power, and on the ground -of this distinction holds that it cannot be alienated, represented, -or divided. 'Sovereignty being simply the exercise of the general -will can never be alienated, and the sovereign, who is only a -collective being, can only be represented by himself. Power can be -transmitted, but not will.' (II, i.) In order to the possibility of a -representation of the general will, there must be a permanent accord -between it and the individual will or wills of the person or persons -representing it. But such _permanent_ accord is impossible. (_Ib_.) -Again, a general will is from the nature of the case indivisible. -It is commonly held to be divided, not, indeed, in respect of its -source, but in respect of the objects to which its acts are directed, -e.g. into legislative and executive powers; into rights of taxation, -of war, of justice, &c. But this supposed division of sovereign -powers or rights implies that 'what are only emanations from the -sovereign authority are taken to be parts of it.' (II, ii.) The only -exercise of sovereign power, properly so called, is in legislation, -and there is no proper act of legislation except when the whole -people comes to a decision with reference to the whole people. Then -the matter decided on is as general as the will which decides on it; -and this is what constitutes a law. (II, vi.) By this consideration -several questions are answered. Whose office is it to make laws? -It is that of the general will, which can neither be alienated nor -represented. Is the prince above the law? The answer is, He is a -member of the state, and cannot be so. Can the law be unjust? No one -can be unjust to himself: therefore not the whole people to the whole -people. How can we be free and yet subject to the laws? The laws are -the register of our own will. (_Ib_.) Laws, in short, are properly -those general 'conditions of civil association' which the associates -impose on themselves. Where either of the specified conditions is -lacking, where either it is not the universal will from which an -ordinance proceeds or it is not the whole people to which it relates, -it is not a law but a decree, not an act of sovereignty but of -magistracy. (_Ib_.) - -71. This leads to a consideration of the nature and institution of -magistracy or government. (III, i.) The government is never the same -as the sovereign. The two are distinguished by their functions, -that of the one being legislative, that of the other executive. -Even where the people itself governs, its acts of government must -be distinguished from its acts of sovereignty, the former having -a particular, the latter a general, reference. Government is the -exercise according to law of the executive power, and the 'prince' -or 'magistrate' is the man or body of men charged with this -administration; 'a body intermediary between the subjects and the -sovereign, charged with the execution of the laws, and with the -maintenance of civil and political freedom' (_Ib_.) Where all or -most of the citizens are magistrates, or charged with the supreme -functions of government, we have a democracy; where a few, an -aristocracy; where one is so charged, a monarchy. (III, iii.) The -differences depend, not as Hobbes and others had supposed, on the -quarter where the sovereignty resides--for it must always reside in -the whole body of people--but on that in which government resides. -The idea of government is that the dominant will of the prince should -be the general will or law, that it should be simply the public -force by which that general will is brought to bear on individuals -or against other states, serving the same purpose in the state as -the union of soul and body in the individual (III, i.); and this -idea is most likely to be satisfied under a democracy. There, the -general will (if there _is_ a general will, which the democracy is -no guarantee for there being, according to Rousseau's distinction -between the 'volonté générale' and 'volonté de tous,' of which more -hereafter) cannot fail to coincide with the dominant will of the -government. The prevalence of particular interests may prevent there -being a will at all of the kind which Rousseau would count general or -truly sovereign, but they cannot be more prevalent in the magistracy, -constituted by the whole people, than in the same people acting -in the way of legislation. In a democracy, therefore, the will of -the sovereign, so far as there is a sovereign in the proper sense, -necessarily finds expression in the will of the magistracy. On the -other hand, though under either of the other forms of government -there is danger of collision between sovereign and government, yet -the force of the government is greater than in a democracy. It is -greatest when the government is a monarchy, because under all other -forms there is more or less discrepancy between the individual wills -of the several persons composing the government, as directed to the -particular good of each, and the corporate will of the government of -which the object is its own efficiency, and under a monarchy this -source of weakness is avoided. (III, ii.) As there is more need of -force in the government in proportion to the number of subjects whose -particular wills it has to control, it follows that monarchy is best -suited to the largest, democracy to the smallest states. (III, iii.) - -72. As to the institution of government, Rousseau maintains -strenuously that it is not established by contract. 'There is only -one contract in the state, viz. that of the original association; -and this excludes every other. No other public contract can be -imagined which would not be a violation of the first.' (III, xvi.) -Even when government is vested in an hereditary body, monarchic -or aristocratic, this is merely a provisional arrangement, made -and liable to be reversed by the sovereign, whose officers the -governors are. The act by which government is established is twofold, -consisting firstly of the passing of a law by the sovereign, to the -effect that there shall be a government; secondly, of an act in -execution of this law, by which the governors--the 'magistrates'--are -appointed. But it may be asked, How can the latter act, being one not -of sovereignty but of magistracy (for it has a particular reference -in the designation of the governors), be performed when as yet there -is no government? The answer is that the people resolves itself -from a sovereign body into a body of magistrates, as the English -Parliament resolves itself constantly from a legislative body into -a committee. In other words, by a simple act of the general will a -democracy is for the time established, which then proceeds either to -retain the government in its own hands, or to place it in those of an -officer, according to the form in which the sovereign has decided to -establish the government. (III, xvii.) Acts similar to that by which -the government was originally constituted need to be periodically -repeated in order to prevent the government from usurping the -functions of the sovereign, i.e. the function of legislation. -(Could this usurpation occur under a democracy?) In order that the -sovereignty may not fall into abeyance, it must be exercised, and -it can only be exercised in assemblies of the whole people. These -must be held periodically, and at their opening two questions ought -to be submitted; one, whether it pleases the sovereign to maintain -the present form of government; the other, whether it pleases the -people to leave the administration in the hands of those at present -charged with it. (III, xviii.) Such assemblies are entitled to -revise and repeal all previously enacted laws. A law not so repealed -the sovereign must be taken tacitly to confirm, and it retains -its authority. But as the true sovereign is not any law but the -general will, no law, even the most fundamental, can be exempt from -liability to repeal. Even the social pact itself might legitimately -be dissolved, by agreement of all the citizens assembled. (_Ib_.) -(Whether unanimity is necessary for the purpose is not specified.) -Without such assemblies there can be no exercise of the general will -(which, as before stated, cannot be represented), and consequently -no freedom. The English people, e.g., is quite mistaken in thinking -itself free. It is only free while the election of members of -Parliament is going on. As soon as they are elected, it is in -bondage, it is nothing. In the short moments of its freedom it makes -such a bad use of it that it well deserves to lose it. (III, xv.) - -73. It appears from the above that, according to Rousseau, the -general will, which is the true sovereign, can only be exercised -in assemblies of the whole people. On the other hand, he does not -hold that an act of such an assembly is necessarily an act of the -general will. After telling us that the 'general will is always -right, and always tends to the public good,' he adds, 'but it does -not follow that the deliberations of the people have always the same -rectitude.... There is often a great difference between the will -of all and the general will. The latter only looks to the common -interest; the other looks to private interests, and is only a sum of -the wills of individuals.' (II, iii.) Again (II, iv.), 'that which -generalises the will is not so much the number of voices as the -common interest which unites them.' He holds apparently that in the -assembly of the whole people, if they had sufficient information, and -if no minor combinations of particular interests were formed within -the entire body, the difference between the wills of individuals -would neutralise each other, and the vote of the whole body would -express the true general will. But in fact in all assemblies there -is at least a liability to lack of information and to the formation -of cliques; and hence it cannot be held that the vote of the -assembly necessarily expresses the general will. Rousseau, however, -does not go so far as to say that unless the law is actually such -as contributes to the common good, it is not an expression of the -general will. The general will, according to him, always aims at -or wills the common good, but is liable to be mistaken as to the -means of attaining it.' It is always right, but the judgment which -guides it is not always enlightened.... Individuals see the good -which they reject; the public wills the good which it does not -see.' (II, vi.) Hence the need of a guide in the shape of a great -lawgiver. Apparently, however, the possible lack of enlightenment on -the part of the general will does not, in Rousseau's view, prevent -its decisions from being for the public good. In discussing the -'limits of the sovereign power' he maintains that there can be no -conflict between it and the natural right of the individual, because, -'although it is only that part of his power, his goods, his freedom, -of which the use is important to the community, that the individual -transfers to the sovereign by the social pact, yet the sovereign -alone can be judge of the importance'; and the sovereign 'cannot -lay on the subjects any constraint which is not for the good of the -community.' 'Under the law of reason' (which is thus identified with -the general will) 'nothing is done without a cause, any more than -under the law of nature.' (II, iv.) - -74. But though even an unenlightened general will is the general -will still, and (as we are left to infer) cannot in its decisions -do otherwise than promote the public good, Rousseau distinctly -contemplates the possibility of the general will being so overpowered -by particular interests that it finds no expression in the votes of -a popular assembly, though the assembly be really one of a whole -people, and the vote of the majority is duly taken. (IV, i.) In such -cases it is not that the general will is 'annihilated or corrupted; -it is always constant, unalterable, and pure.' Even in the individual -whose vote is governed by his private interest the general will -is not extinct, nor is he unaware either of what the public good -requires or of the fact that what is for the public good is also for -his own. But his share in the public evil to which he knows that -his vote will contribute, seems nothing by the side of the special -private good which he hopes to gain. By his vote, in short, he does -not answer the question, Is so and so for the advantage of the state? -but, Is it for the advantage of this particular man or party? (Ib.) - -75. The test of the dominance of the general will in assemblies of -the people is an approach to unanimity. 'Long debates, discussions, -tumult, indicate the ascendency of particular interests and the -decline of the state.' (IV, ii.) Rousseau, however, does not venture -to say that absolute unanimity in the assembly is necessary to an -expression of the general will, or to give a law a claim upon the -obedience of the subjects. This would have been to render effectual -legislation impossible. Upon the theory, however, of the foundation -of legitimate sovereignty in consent, the theory that the natural -right of the individual is violated unless he is himself a joint -imponent of the law which he is called to obey, it is not easy to see -what rightful claim there can be to the submission of a minority. -Rousseau so far recognises the difficulty that he requires unanimity -in the original compact. (IV, ii.) If among those who are parties -to it there are others who oppose it, the result is simply that -the latter are not included in it. 'They are strangers among the -citizens.' But this does not explain how they are to be rightfully -controlled, on the principle that the only rightful control is -founded on consent; or, if they are not controlled, what is the -value of the 'social compact.' How can the object of the pact be -attained while those who are bound by it have these 'strangers' -living among them who are not bound by it, and who, not being bound -by it, cannot be rightfully controlled? The difficulty must recur -with each generation of the descendants of those who were parties to -the original pact. The parties to the pact, it is true, have no right -to resist the general will, because the pact is _ex hypothesi_ to the -effect that each individual, in all things of common concern, will -take the general will for his own. The true form, therefore, of the -question upon which each party to the pact should consider himself -to be voting in the assembly is, as Rousseau puts it, not 'Is the -proposed measure what I wish for, or what I approve, or no?' but 'Is -it in conformity with the general will?' If, having voted upon this -question, he finds himself in a minority, he is bound to suppose that -he is mistaken in his views of the general will, and to accept the -decision of the majority as the general will which, by the pact, he -is bound to obey. So far all is consistent; though how the individual -is to be answered if he pleads that the vote of the assembly has been -too much biassed by particular interests to be an expression of the -general will, and that therefore it is not binding on him, does not -appear. - -76. But after the first generation of those who were parties to -the supposed original compact, what is to settle whether anyone -is a party to it or no? Rousseau faces the question, but his only -answer is that when once the state is instituted, consent is implied -in residence; 'to dwell on the territory is to submit to the -sovereignty.' (IV, ii.) This answer, however, will scarcely stand -examination. Rousseau himself does not consider that residence in -the same region with the original parties to the pact renders those -so resident also parties to it. Why should it do so, when the pact -has descended to a later generation? It may be argued of course that -everyone residing in a settled society, which secures him in his -rights of person and property, has the benefit of the society from -the mere fact of his residence in it, and is therefore morally bound -to accept its laws. But this is to abandon the doctrine of obligation -being founded on consent. Residence in a territory governed by a -certain sovereign can only be taken to imply consent to the rule of -that sovereign, if there is any real possibility of relinquishing it, -and this there can scarcely ever be. - -77. Rousseau certainly carried out the attempt to reconcile -submission to government with the existence of natural rights -antecedent to the institution of government, by the hypothesis of a -foundation of government in consent, more consistently than any other -writer; and his result shows the hopelessness of the attempt. To the -consistency of his theory he sacrifices every claim to right on the -part of any state except one in which the whole body of citizens -directly legislates, i.e. on the part of nearly all states then or -now existing; and finally he can only justify the control of the -minority by the majority in any state whatever by a subterfuge. It -does not follow, however, because the doctrine of natural rights and -the consequent conception of government as founded on compact are -untenable, that there is no truth in the conception of the state -or sovereign as representing a general will, and as authorised or -entitled to obedience on that account. It is this conception, as the -permanently valuable thing in Rousseau, that we have now further to -consider. - -78. The first remark upon it which suggests itself is that, as -Rousseau puts the matter, there may be an independent political -society in which there is no sovereign power at all, or in which, at -any rate, it is not exercised. The sovereign is the general will. -But the general will can only be exercised through the assembly of -a whole people. The necessary conditions of its exercise, then, -in Rousseau's time, were only fulfilled in the Swiss cantons and -(perhaps) in the United Provinces. In England they were fulfilled in -a way during the time of a general election. But even where these -conditions were fulfilled, it did not follow that the general will -was put in force. It might be overpowered, as in the Roman comitia, -by particular interests. Is it then to be understood that, according -to Rousseau, either there can be independent states without any -sovereignty in actual exercise, or that the European states of his -time, and equally the great states of the present day (for in none -of these is there any more exercise of the general will than in the -England of his time), are not properly states at all? - -79. We may try to answer this question by distinguishing sovereign -_de facto_ from sovereign _de jure_, and saying that what Rousseau -meant was that the general will, as defined by him and as exercised -under the conditions which he prescribes, was the only sovereign _de -jure_, but that he would have recognised in the ordinary states of -his time a sovereign _de facto_; and that in the same way, when he -describes the institution of government as arising out of a twofold -act consequent on the original pact (an act in which the sovereign -people first decides that there shall be a government, and then, -not as a sovereign people, but as a democratic magistracy, decides -in what hands the government shall be placed), he does not conceive -himself to be describing what has actually taken place, but what is -necessary to give a government a moral title to obedience. Whether -Rousseau himself had this distinction in view is not always clear. -At the outset he states his object thus: 'Man is born free, and -everywhere he is in fetters. How has this change come about? I do -not know. What can render it legitimate? That is a question which -I deem myself able to answer.' (I, i.) The answer is the account -of the establishment of a sovereign by social pact. It might be -inferred from this that he considered himself in the sequel to be -delineating transactions to the actual occurrence of which he did -not commit himself, but which, if they did occur, would constitute -a duty as distinct from a physical necessity of submission on the -part of subjects to a sovereign, and to which some equivalent must -be supposed, in the shape of a tacit present convention on the part -of the members of a state, if their submission is to be matter of -duty as distinct from physical necessity, or is to be explained as -a matter of right by the ostensible sovereign. This, however, would -merely be an inference as to his meaning. His actual procedure is to -describe transactions, by which the sovereignty of the general will -was established, and by which it in turn established a government, as -if they had actually taken place. Nor is he content with supposing a -tacit consent of the people as rendering subjection legitimate. The -people whose submission to law is to be 'legitimate' must actually -take part in sovereign legislative assemblies. It is very rarely that -he uses language which implies the possibility of a sovereign power -otherwise constituted. He does indeed speak [1] of the possibility -of a prince (in the special meaning of the term, as representing -the head of the executive) usurping sovereignty, and speaks of the -sovereignty thus usurped as existing _de facto_, not _de jure_; but -in no other connection (so far as I have observed) does he speak of -anything short of the 'volonté générale' exercised through the vote -of an assembled people as sovereign at all. And the whole drift of -his doctrine is to show that no sovereign, otherwise constituted, had -any claim on obedience. There was no state in Europe at his time in -which his doctrine would not have justified rebellion, and even under -existing representative systems the conditions are not fulfilled -which according to him are necessary to give laws the claim on our -obedience which arises from their being an expression of the general -will. The only system under which these conditions could be fulfilled -would be one of federated self-governing communes, small enough to -allow each member an active share in the legislation of the commune. -It is probably the influence of Rousseau that has made such a system -the ideal of political enthusiasts in France. - -[1] 'If it happened that the prince had a private will more active -than that of the sovereign, and that he made use of the public -force placed in his hands as the instrument of this private will, -there would result, so to speak, two sovereignties, one _de jure_, -the other _de facto_; but from that moment the social union would -disappear, and the body politic would be dissolved.' (III, i.) 'When -the prince ceases to administer the state according to the laws, and -usurps the sovereign power ... then the state in the larger sense is -dissolved, and there is formed another within it, composed only of -the members of the government ... the social pact is broken ... and -all the ordinary citizens return as a matter of right to their state -of natural liberty, and are merely forced, but not obliged, to obey.' -(III, X.) - - F. _SOVEREIGNTY AND THE GENERAL WILL._ Rousseau and Austin. - -80. The questions then arise (1) whether there is any truth in -Rousseau's conception of sovereignty as founded upon a 'volonté -générale' in its application to actual sovereignty. Does anything -like such a sovereignty exist in the societies properly called -political? (2) Is there any truth in speaking of a sovereignty _de -jure_ founded upon the 'volonté générale? (3) If there is, are we to -hold with Rousseau that this 'will' can only be exercised through the -votes of a sovereign people? - -81. (1) The first question is one which, if we take our notions -of sovereignty from such writers as Austin, we shall be at first -disposed decidedly to negative. Austin is considered a master of -precise definition. We may begin, therefore, by looking to his -definition of sovereignty and the terms connected with it. His -general definition of law runs as follows: 'A law, in the most -general and comprehensive acceptation in which the term, in its -literal meaning, is employed, may be said to be a rule laid down -for the guidance of an intelligent being by an intelligent being -having power over him.' [1] These rules are of two kinds: (1) laws -set by God to men, or the law of nature; and (2) laws set by men to -men, or human law. We are only concerned with the latter, the human -laws. These are again distinguished into two classes, according as -they are or are not established by political superiors. 'Of the laws -or rules set by men to men, some are established by _political_ -superiors, sovereign and subject; by persons exercising supreme and -subordinate _government_, in independent nations, or independent -political societies' (pp. 88 and 89). 'The aggregate of the rules -established by political superiors is frequently styled _positive_ -law, or law existing _by position_' (p. 89). This is distinguished -from 'positive morality.' Laws are further explained as a species of -commands. A command is a signification of desire, distinguished by -the fact that the party to whom it is addressed is liable to evil -from the party expressing the desire in case he does not comply -with it (p. 91). This liability to evil forms the sanction of the -command. Where a command 'obliges _generally_ to acts or forbearances -of _a class_, it is a law' (p. 95). 'Every positive law, or every -law simply and strictly so called, is set by a sovereign person or a -sovereign body of persons to a member or members of the independent -political society wherein that person or body is sovereign or -supreme. Or (changing the expression) it is set by a monarch, or -sovereign member, to a person or persons in a state of subjection to -its author. Even though it sprung directly from another fountain or -source, it is a positive law, or a law strictly so called, by the -institution of that present sovereign in the character of political -superior. Or (borrowing the language of Hobbes) the legislator is he, -not by whose authority the law was first made, but by whose authority -it continues to be a law' (pp. 225 and 226). - -'The notions of sovereignty and independent political society may be -expressed concisely thus. If a _determinate_ human superior, _not_ in -a habit of obedience to a like superior, receive _habitual_ obedience -from the _bulk_ of a given society, that determinate superior is -sovereign in that society, and the society (including the superior) -is a society political and independent' (p. 226). - -'In order that a given society may form a society political and -independent, the two distinguishing marks which I have mentioned -above must unite. The _generality_ of the given society must be in a -_habit_ of obedience to a _determinate_ and _common_ superior; whilst -that determinate person, or determinate body of persons, must _not_ -be habitually obedient to a determinate person or body. It is the -union of that positive with this negative mark which renders that -certain superior sovereign or supreme, and which renders that given -society (including that certain superior) a society political and -independent' (p. 227). - -[1] _Lectures on Jurisprudence_, vol. i. p. 88 (edit. of 1869, in two -vols.) - -82. It may be remarked in passing that, according to the above, while -every law implies a sovereign, from whom directly or indirectly -(through a subordinate political superior) it proceeds, it is not -necessary to a sovereign that his commands should take the form of -laws, as opposed to 'particular or occasional commands.' A superior -might signify his desires only in the form of such particular and -occasional commands, and yet there might be a habit of obedience to -him, and he might not be habitually obedient to any other person or -body; in which case he would be a 'sovereign.' - -83. Austin's doctrine seems diametrically opposite to one which -finds the sovereign in a 'volonté générale,' because _(a)_ it only -recognises sovereignty in a _determinate_ person or persons, and -_(b)_ it considers the essence of sovereignty to lie in the power, on -the part of such determinate persons, to put compulsion without limit -on subjects, to make them do exactly as it pleases. [1] The 'volonté -générale,' on the other hand, it would seem, cannot be identified -with the will of any determinate person or persons; it can, indeed, -according to Rousseau, only be expressed by a vote of the whole body -of subject citizens; but when you have got them together, there is -no certainty that their vote does express it; and it does not--at -any rate necessarily--command any power of compulsion, much less -unlimited power. Rousseau expressly contemplates the possibility of -the executive power conflicting with and overbearing the general -will. Indeed, according to his view, it was the ordinary state -of things; and though this view may be exaggerated, no one could -maintain that the 'general will,' in any intelligible sense of the -words, had always unlimited force at its command. - -[1] Cf. Maine's statement of Austin's doctrine in _The Early History -of Institutions_, pp. 349 and 350: 'There is in every independent -political community--that is, in every political community not in the -habit of obedience to a superior above itself--some single person or -some combination of persons which has the power of compelling the -other members of the community to do exactly as it pleases. This -single person or group--this individual or this collegiate sovereign -(to employ Austin's phrase) may be found in every independent -political community as certainly as the centre of gravity in a mass -of matter. If the community be violently or voluntarily divided into -a number of separate fragments, then, as soon as each fragment has -settled down (perhaps after an interval of anarchy) into a state of -equilibrium, the sovereign will exist, and with proper care will be -discoverable in each of the now independent portions. The sovereignty -over the North American colonies of Great Britain had its seat in -one place before they became the United States, in another place -afterwards; but in both cases there was a discoverable sovereign -somewhere. This sovereign, this person or combination of persons, -universally occurring in all independent political communities, has -in all such communities one characteristic, common to all the shapes -sovereignty may take, the possession of irresistible force, not -necessarily exerted, but capable of being exerted. According to the -terminology preferred by Austin, the sovereign, if a single person, -is or should be called a monarch; if a small group, the name is an -oligarchy; if a group of considerable dimensions, an aristocracy; -if very large and numerous, a democracy. Limited monarchy, a phrase -perhaps more fashionable in Austin's day than it is now, is abhorred -by Austin, and the government of Great Britain he classes with -aristocracies. That which all the forms of sovereignty have in -common is the power (the power but not necessarily the will) to put -compulsion without limit on subjects or fellow-subjects.' - -84. The two views thus seem mutually exclusive, but perhaps it may -be by taking each as complementary to the other that we shall gain -the truest view of sovereignty as it actually exists. In those -states of society in which obedience is habitually rendered by the -bulk of society to some determinate superior, single or corporate, -who, in turn, is independent of any other superior, the obedience -is so rendered because this determinate superior is regarded as -expressing or embodying what may properly be called the general -will, and is virtually conditional upon the fact that the superior -is so regarded. It is by no means an unlimited power of compulsion -that the superior exercises, but one dependent in the long run, or -dependent for the purpose of insuring an _habitual_ obedience, upon -conformity to certain convictions on the part of the subjects as to -what is for their general interest. As Maine says (_Early History -of Institutions_, p. 359), 'the vast mass of influences, which we -may call for shortness moral, perpetually shapes, limits, or forbids -the actual direction of the forces of society by its sovereign.' -Thus, quite apart from any belief in the right of revolution, from -the view that the people in any state are entitled to an ultimate -sovereignty, or are sovereign _de jure_, and may withdraw either -legislative or executive power from the hands in which it has been -placed in the event of its being misused, it may fairly be held that -the ostensible sovereign--the determinate person or persons to whom -we can point and say that with him or them lies the ultimate power of -exacting habitual obedience from the people--is only able to exercise -this power in virtue of an assent on the part of the people, nor -is this assent reducible to the fear of the sovereign felt by each -individual. It is rather a common desire for certain ends--specially -the 'pax vitaeque securitas'--to which the observance of law or -established usage contributes, and in most cases implies no conscious -reference on the part of those whom it influences to any supreme -coercive power at all. Thus when it has been ascertained in regard to -any people that there is some determinate person or persons to whom, -in the last resort, they pay habitual obedience, we may call this -person or persons sovereign if we please, but we must not ascribe to -him or them the real power which governs the actions and forbearances -of the people, even those actions and forbearances (only a very -small part) which are prescribed by the sovereign. This power is a -much more complex and less determinate, or less easily determinable, -thing; but a sense of possessing common interests, a desire for -common objects on the part of the people, is always the condition of -its existence. Let this sense or desire--which may properly be called -general will--cease to operate, or let it come into general conflict -with the sovereign's commands, and the habitual obedience will cease -also. - -85. If, then, those who adopt the Austinian definition of a sovereign -mean no more than that in a thoroughly developed state there must be -some determinate person or persons, with whom, in the last resort, -lies the recognised power of imposing laws and enforcing their -observance, over whom no legal control can be exercised, and that -even in the most thorough democracy, where laws are passed in the -assembly of the whole people, it is still with determinate persons, -viz. a majority of those who meet in the assembly, that this power -resides, they are doubtless right. So far they only need to be -reminded that the thoroughly developed state, as characterised by -the existence of such definite sovereignty, is even among civilised -people but imperfectly established. It is perfectly established (1) -where customary or 'common' or 'judge-made' law, which does not -proceed from any determinate person or persons, is either superseded -by express enactments that do proceed from such person or persons, -or (as in England) is so frequently trenched upon by statute law -that it may fairly be said only to survive upon sufferance, or to be -itself virtually enacted by the sovereign legislature; and (2) where -no question of right can be raised between local legislatures or -authorities and the legislature claiming to be supreme, as in America -before the war of secession, and as might perhaps be found to be the -case in Germany now, if on certain educational and ecclesiastical -matters the imperial legislature came to be at issue with the local -legislatures. But though the organisation of the state, even in -civilised and independent nations, is not everywhere complete, it -no doubt involves the residence with determinate persons, or a body -or bodies, of supreme i.e. legally uncontrolled power to make and -enforce laws. The term 'sovereign' having acquired this definite -meaning, Rousseau was misleading his readers when he ascribed -sovereignty to the general will. He could only be understood as -meaning, and in fact understood himself to mean, that there was no -legitimate sovereign except in the most thorough democracy, as just -described. - -86. But the Austinians, having found their sovereign, are apt to -regard it as a much more important institution than--if it is to -be identified with a determinate person or persons--it really is; -they are apt to suppose that the sovereign, with the coercive power -(i.e. the power of operating on the fears of the subjects) which -it exercises, is the real determinant of the habitual obedience of -the people, at any rate of their habitual obedience in respect of -those acts and forbearances which are prescribed by law. But, as we -have seen, this is not the case. It then needs to be pointed out -that if the sovereign power is to be understood in this fuller, less -abstract sense, if we mean by it the real determinant of the habitual -obedience of the people, we must look for its sources much more -widely and deeply than the 'analytical jurists' do; that it can no -longer be said to reside in a determinate person or persons, but in -that impalpable congeries of the hopes and fears of a people, bound -together by common interests and sympathy, which we call the general -will. - -87. It may be objected that this view of the general will, as that -on which habitual obedience to the sovereign really depends, is at -best only applicable to 'self-governing' communities, not to those -under a despotic sovereign. The answer is that it is applicable in -all forms of society where a sovereign in the sense above defined -(as a determinate person or persons with whom in the last resort -lies the recognised power of imposing laws and enforcing their -observance) really exists, but that there are many where there cannot -fairly be said to be any such sovereign at all; in other words, that -in all organised communities the power which practically commands -the habitual obedience of the people in respect of those acts and -forbearances which are enjoined by law or authoritative custom, is -one dependent on the general will of the community, but this power is -often not sovereign in the sense in which the ruler of an independent -state is sovereign. It may very well be that there is at the same -time another power merely coercive, a power really operating on -people simply through their fears, to which obedience is rendered, -and which is not in turn representative of a general will; but where -this is the case we shall find that such power is only in contact -with the people, so to speak, at one or two points; that their -actions and forbearances, as determined by law and custom, are in the -main independent of it; that it cannot in any proper sense be said -to be a sovereign power over them; at any rate, not in the sense in -which we speak of King, Lords, and Commons as sovereign in England. - -88. Maine has pointed out (_Early History of Institutions_, Lecture -XIII.) that the great despotic empires of ancient times, excluding -the Roman, of which more shall be said directly, and modern empires -in the East were in the main tax-collecting institutions. They -exercise coercive force over their subjects of the most violent kind -for certain purposes at certain times, but they do not impose laws -as distinct from 'particular and occasional commands' nor do they -judicially administer or enforce a customary law. In a certain sense -the subjects render them habitual obedience, i.e. they habitually -submit when the agents of the empire descend on them for taxes and -recruits, but in the general tenor of their lives their actions and -forbearances are regulated by authorities with which the empire -never interferes,--with which probably it could not interfere -without destroying itself. These authorities can scarcely be said -to reside in a determinate person or persons at all, but, so far as -they do so, they reside mixedly in priests or exponents of customary -religion, in heads of families acting within the family, and in some -village-council acting beyond the limits of the family. Whether, in -such a state of things, we are to consider that there is a sovereign -power at all, and, if so, where it is to be considered to reside, -are chiefly questions of words. If complete uncontrolledness by a -stronger power is essential to sovereignty, the local authorities -just spoken of are not sovereign. The conquering despot could descend -on them and sweep them away, leaving anarchy in their place, and he -does compel them to be put in exercise for a particular purpose, -that of raising tribute or sometimes recruits. On the other hand, -these authorities, which represent a general will of the communities, -form the power which determines such actions and forbearances of the -individual as do not proceed from natural inclination. The military -ruler, indeed, is sovereign in the sense of possessing irresistible -coercive power, but in fact this power is only exercised within -narrow limits, and not at all in any legislative or judicial way. If -exercised beyond these limits and in conflict with customary law, -the result would be a general anarchy. The truest way of expressing -the state of the case is to say that, taking the term 'sovereign' in -the sense which we naturally associate with it, and in which it is -used by modern European writers on sovereignty, there is under such -conditions no sovereign, but that the practical regulation of life, -except during intervals of military violence and anarchy, rests with -authorities representing the general will, though these are to a -certain extent interfered with by an alien force. - -89. The same account is applicable to most cases of foreign -dominion over a people with any organised common life of their own. -The foreign power is not sovereign in the sense of being a maker -or maintainer of laws. Law-making, under such conditions, there -is properly none. The subject people inherits laws, written or -unwritten, and maintains them for itself, a certain shelter from -violence being afforded by the foreign power. Such, in the main, -was the condition of North Italy, for instance, under Austrian -domination. Where this is the case, the removal of the coercive -power of the foreigner need not involve anarchy, or any violation of -established rights (such as Hobbes supposes to follow necessarily -from the deposition of an actual sovereign). The social order does -not depend on the foreign dominion, and may survive it. The question -whether in any particular case it actually can do so must depend on -the possibility of preventing further foreign aggression, and on the -question whether there is enough national unity in the subject people -to prevent them from breaking up into hostile communities when the -foreign dominion is removed. - -90. It is otherwise where the foreign power is really a law-making -and law-maintaining one, and is sovereign in that proper sense, as -was the Roman Empire. But just so far as the Roman Empire was of -this sovereign, i.e. law-making and law-maintaining, character, it -derived its permanence, its hold on the 'habitual obedience' of -its subjects, from the support of the general will. As the empire -superseded customary or written laws of conquered countries, it -conferred rights of Roman citizenship, a much more perfect system of -protection in action and acquisition than the conquered people had -generally possessed before. Hence, while nothing could be further -removed from what Rousseau would have counted liberty than the -life of the citizens of the Roman Empire, for they had nothing to -do with making the laws which they obeyed, yet probably there was -never anv political system more firmly grounded on the good-will of -the subjects, none in the maintenance of which the subjects felt a -stronger interest. The British power in India exercises a middle -function between that of the Roman Empire and that of the mere -tax-collecting and recruit-raising empire with which the Roman Empire -has just been contrasted. It presents itself to the subject people -in the first place as a tax-collector. It leaves the customary law -of the people mostly untouched. But if only to a very small extent -a law-making power, it is emphatically a law-maintaining one. It -regulates the whole judicial administration of the country, but -applies its power generally only to enforce the customary law which -it finds in existence. For this reason an 'habitual obedience' may -fairly be said to be rendered by the Indian people to the English -government, in a sense in which it could not be said to be rendered -to a merely tax-collecting military power; but the 'habitual -obedience' is so rendered only because the English government -presents itself to the people, not merely as a tax-collector, but -as the maintainer of a customary law, which, on the whole, is the -expression of the general will. The same is true in principle of -those independent states which are despotically governed, in which, -i.e., the ultimate legislative power does not reside, wholly or in -part, with an assembly representing the people, or with the people -themselves; e.g. Russia. It is not the absolute coercive power of -the Czar which determines the habitual obedience of the people. This -coercive power, if put to the test as a _coercive_ power, would -probably be found very far from absolute. The habitual obedience -is determined by a system of law, chiefly customary, which the -administration controlled by the Czar enforces against individuals, -but which corresponds to the general sense of what is equitable and -necessary. If a despotic government comes into anything like habitual -conflict with the unwritten law which represents the general will, -its dissolution is beginning. - -91. The answer, then, to the question whether there is any truth -in Rousseau's conception of sovereignty as founded upon a 'volonté -générale,' in its application to actual sovereignty, must depend on -what we mean by 'sovereign.' The essential thing in political society -is a power which guarantees men rights, i.e. a certain freedom of -action and acquisition conditionally upon their allowing a like -freedom in others. It is but stating the same condition otherwise -to speak of a power which guarantees the members of the society -these rights, this freedom of action and acquisition, impartially -or according to a general will or law. What is the lowest form in -which a society is fit to be called political, is hard to say. The -political society is more complete as the freedom guaranteed is more -complete, both in respect of the persons enjoying it and of the range -of possible action and acquisition over which it extends. A family -or a nomad horde could not be called a political society, on account -of the narrow range of the political freedom which they severally -guarantee. The nomad horde might indeed be quite as numerous as a -Greek state, or as the sovereign canton of Geneva in Rousseau's -time; but in the horde the range within which reciprocal freedom of -action and acquisition is guaranteed to the individual is exceedingly -small. It is the power of guaranteeing rights, defined as above, -which the old writers on sovereignty and civil government supposed to -be established by covenant of all with all, translating the common -interest which men have in the maintenance of such a power into an -imaginary historical act by which they instituted it. It was this -power that they had chiefly in view when they spoke of sovereignty. - -92. It is to be observed, however, that the power may very well exist -and serve its purpose where it is not sovereign in the sense of being -exempt from any liability of being interfered with by a stronger -coercive power, such as that of a tax-collecting military ruler. The -occasional interference of the military ruler is so far a drawback -to the efficiency with which freedom of action and acquisition is -guaranteed, but does not nullify the general maintenance of rights. -On the other hand, when the power by which rights are guaranteed is -sovereign (as it is desirable that it should be) in the special sense -of being maintained by a person or persons, and wielding coercive -force not liable to control by any other human force, it is not -this coercive force that is the important thing about it, or that -determines the habitual obedience essential to the real maintenance -of rights. That which determines this habitual obedience is a power -residing in the common will and reason of men, i.e. in the will and -reason of men as determined by social relations, as interested in -each other, as acting together for common ends. It is a power which -this universal rational will exercises over the inclinations of -the individual, and which only needs exceptionally to be backed by -coercive force. - -93. Thus, though it may be misleading to speak of the general will -as anywhere either actually or properly sovereign, because the term -'sovereign' is best kept to the ordinary usage in which it signifies -a determinate person or persons charged with the supreme coercive -function of the state, and the general will does not admit of being -vested in a person or persons, yet it is true that the institutions -of political society--those by which equal rights are guaranteed to -members of such a society--are an expression of, and are maintained -by, a general will. The sovereign should be regarded, not in -abstraction as the wielder of coercive force, but in connection with -the whole complex of institutions of political society. It is as -their sustainer, and thus as the agent of the general will, that the -sovereign power must be presented to the minds of the people if it -is to command habitual loyal obedience; and obedience will scarcely -be habitual unless it is loyal, not forced. If once the coercive -power, which must always be an incident of sovereignty, becomes the -characteristic thing about it in its relation to the people governed, -this must indicate one of two things; either that the general -interest in the maintenance of equal rights has lost its hold on -the people, or that the sovereign no longer adequately fulfils its -function of maintaining such rights, and thus has lost the support -derived from the general sense of interest in supporting it. It may -be doubted whether the former is ever really the case; but whatever -explanation of the case may be the true one, it is certain that when -the idea of coercive force is that predominantly associated with -the law-imposing and law-enforcing power, then either a disruption -of the state or a change in the sources of sovereignty must sooner -or later take place. In judging, however, whether this is the case, -we must not be misled by words. In England, e.g., from the way in -which many people speak of 'government,' we might suppose that it -was looked on mainly as the wielder of coercive force; but it would -be a mistake on that account to suppose that English people commonly -regard the laws of the country as so much coercion, instead of as an -institution in the maintenance of which they are interested. When -they speak disapprovingly of 'government,' they are not thinking of -the general system of law, but of a central administrative agency, -which they think interferes mischievously with local and customary -administration. - -94. It is more true, then, to say that law, as the system of rules -by which rights are maintained, is the expression of a general will -than that the general will is the sovereign. The sovereign, being -a person or persons by whom in the last resort laws are imposed -and enforced, in the long run and on the whole is an agent of the -general will, contributes to realise that will. Particular laws may, -no doubt, be imposed and enforced by the sovereign, which conflict -with the general will; not in the sense that if all the subject -people could be got together to vote upon them, a majority would -vote against them,--that might be or might not be,--but in the sense -that they tend to thwart those powers of action, acquisition, and -self-development on the part of the members of the society, which -there is always a general desire to extend (though the desire may -not be enlightened as to the best means to the end), and which it is -the business of the law to sustain and extend. The extent to which -laws of this kind may be intruded into the general 'corpus juris' -without social disruption it is impossible to specify. Probably -there has never been a civilised state in which they bore more than -a very small proportion to the amount of law which there was the -strongest general interest in maintaining. But, so far as they go, -they always tend to lessen the 'habitual obedience' of the people, -and thus to make the sovereign cease to be sovereign. The hope must -be that this will result in the transfer of sovereignty to other -hands before a social disruption ensues; before the general system -of law has been so far perverted as to lose its hold on the people. -Of the possibility of a change in sovereignty without any detraction -from the law-abiding habits of the people, France has lately given -a conspicuous example. Here, however, it must be remembered that a -temporary foreign conquest made the transition easier. - -95. (2) After what has been said, we need not dwell long on the -second question raised [1] concerning Rousseau's theory: Is there -any truth in speaking of a sovereignty 'de jure' founded upon the -'volonté générale'? It is a distinction which can only be maintained -so long as either 'sovereign' is not used in a determinate sense, or -by 'jus' is understood something else than law or right established -by law. If by 'sovereign' we understand something short of a person -or persons holding the supreme law-making and law-enforcing power, -e.g. an English king who is often called sovereign, we might say -that sovereignty was exercised 'de facto' but not 'de jure' when -the power of such a 'sovereign' was in conflict with, or was not -sanctioned by, the law as declared and enforced by the really supreme -power. Thus an English king, so far as he affected to control the -army or raise money without the co-operation of Parliament, might be -said to be sovereign 'de facto' but not 'de jure'; only, however, -on the supposition that the supreme law-making and law-enforcing -power does not belong to him, and thus that he is called 'sovereign' -in other than the strict sense. If he were sovereign in the full -sense 'de facto,' he could not fail to be so 'de jure,' i.e. -legally. In such a state of things, if the antagonism between king -and parliament continued for any length of time, it would have to -be admitted that there was no sovereign in the sense of a supreme -law-making and law-enforcing power; that sovereignty in this sense -was in abeyance, and that anarchy prevailed. Or the same thing might -be explained by saying that sovereignty still resided 'de jure' -with the king and parliament, though not 'de facto' exercised by -them; but if we use such language, we must bear in mind that we are -qualifying 'sovereignty' by an epithet which neutralises its meaning -as an actually supreme power. If, however, the king succeeded in -establishing such a power on a permanent footing, he would have -become sovereign in the full sense, and there would be no ground -for saying, as before, that he was not sovereign 'de jure'; for the -qualifications 'de jure' and 'not de jure,' in that sense in which -they might be applied to a power which is not supreme, are equally -inapplicable to the power of making and enforcing law which is -supreme. The monarch's newly established supremacy may be in conflict -with laws that were previously in force, but he has only to abolish -those laws in order to render it legal. If, then, it is still to -be said to be not 'de jure,' it must be because 'jus' is used for -something else than law or right established by law; viz. either -for 'natural right' (if we admit that there is such a thing), and -'natural right' as not merely = natural power; or for certain claims -which the members of the subject community have come to recognise as -inherent in the community and in themselves as members of it, claims -regarded as the foundation of law, not as founded upon it, and with -which the commands of the sovereign conflict. But even according to -this meaning of 'jus,' a sovereign in the strict Austinian sense, -that is not so 'de jure,' is in the long run an impossibility. -'Habitual obedience' cannot be secured in the face of such claims. - -[1] [Above, sec. 80. RLN] - -96. But whether or no in any qualified sense of 'sovereign' or 'jus,' -a sovereign that is not so 'de jure' is possible, once understand -by 'sovereign' the determinate person or persons with whom the -ultimate law-imposing and law-enforcing power resides, and by 'jus' -law, it is then obviously a contradiction to speak of a sovereign -'de jure' as distinguished from one 'de facto.' The power of the -ultimate imponent of law cannot be derived from, or limited by, law. -The sovereign may no doubt by a legislative act of its own lay down -rules as to the mode in which its power shall be exercised, but if -it is sovereign in the sense supposed, it must always be open to it -to alter these rules. There can be no illegality in its doing so. -In short, in whatever sense 'jus' is derived from the sovereign, in -that sense no sovereign can hold his power 'de jure.' So Spinoza held -that 'imperium' was 'de jure' indeed, but 'de jure naturali' ('jus -naturale' = natural power), which is the same as 'de jure divino'; -only powers exercised in subordination to 'imperium' are 'de jure -civili.' So Hobbes said that there could be no 'unjust law.' A law -was not a law unless enacted by a sovereign, and 'the just' being -that to which the sovereign obliges, the sovereign could not enact -the unjust, though it might enact the inequitable and the pernicious, -the 'inequitable' presumably meaning that which conflicts with a law -of nature, the 'pernicious' that which tends to weaken individuals -or society. Rousseau retains the same notion of the impeccability of -the sovereign, but on different grounds. Every act of the sovereign -is according to him 'de jure,' not because all right is derived from -a supreme coercive power and the sovereign is that power, but because -the sovereign is the general will, which is necessarily a will for -the good of all. The enactment of the sovereign could as little, on -this view, be 'inequitable' or 'pernicious' as it could be 'unjust.' -But this view necessitates a distinction between the sovereign, thus -conceived, and the actually supreme power of making and enforcing -law as it exists anywhere but in what Rousseau considered a perfect -state. Rousseau indeed generally avoids calling this actually supreme -power 'sovereign,' though he cannot, as we have seen, altogether -avoid it; and since, whatever he liked to call it, the existence -of such a power in forms which according to him prevented its -equivalence to the general will was almost everywhere a fact, his -readers would naturally come to think of the actually supreme power -as sovereign 'de facto,' in distinction from something else which was -sovereign 'de jure.' And further, under the influence of Rousseau's -view that the only organ of the general will was an assembly of -the whole people, they would naturally regard such an assembly as -sovereign 'de jure,' and any other power actually supreme as merely -sovereign 'de facto.' This opposition, however, really arises out of -a confusion in the usage of the term 'sovereign'; out of inability -on the one side to hold fast the identification of sovereign with -general will, on the other to keep it simply to the sense of the -supreme law-making and law-enforcing power. If 'sovereign' = 'general -will,' the distinction of 'de facto' and 'de jure' is inapplicable -to it. A certain desire either is or is not the general will. A -certain interest is or is not an interest in the common good. There -is no sense in saying that such desire or interest is general will -'de jure' but not 'de facto,' or _vice versa_. On the other hand, if -'sovereign' = the supreme law-making and law-enforcing power, the -distinction is equally inapplicable to it. If any person or persons -have this power at all, they cannot be said to have it merely 'de -facto' while others have it 'de jure.' - -97. It may be urged with much truth that the actual possession of -such power by a determinate person or persons is rather a convenient -hypothesis of writers on jurisprudence than an actual fact; and, as -we have seen, the actual condition of things at certain times in -certain states may conveniently be expressed by saying that there was -a sovereign 'de facto' that was not so 'de jure,' or vice versa; but -only on the supposition that 'sovereign' is not taken necessarily -in the full sense of a supreme law-making and law-enforcing power. -In a state of things that can be so described, however, there is no -'sovereignty' at all in the sense of an actually supreme power of -making and enforcing law resident in a determinate person or persons. -Sovereignty in this sense can only exist 'de facto'; and when it so -exists, it is obvious that no other can in the same sense exist 'de -jure.' It may be denied indeed in particular cases that an actually -supreme power of making and enforcing law is exercised 'de jure,' in -a sense of that phrase already explained (see section 95). Reasons -were given for doubting whether a power could really maintain its -sovereign attributes if conflicting with 'jus,' in the sense thus -explained. But supposing that it could, the fact that it was not -exercised 'de jure' would not entitle us to say that any other person -or persons were sovereign 'de jure,' without altering the meaning of -'sovereign.' If any one has supreme power 'de facto,' that which any -one else has cannot be supreme power. The qualification of a power as -held not 'de facto' but 'de jure' is one which destroys its character -as supreme, i.e. as sovereign in the sense before us. - -98. It is only through trying to combine under the term 'sovereign' -the notions of the general will and of supreme power that we are led -to speak of the people as sovereign 'de jure,' if not 'de facto.' -There would be no harm indeed in speaking of the general will as -sovereign, if the natural association of 'sovereign' with supreme -coercive power could be got rid of; but as this cannot be, when once -we have pronounced the general will 'sovereign,' we are pretty sure -to identify the general will with a vote of the majority of citizens. -A majority of citizens can be conceived as exercising a supreme -coercive power, but a general will, in the sense of an unselfish -interest in the common good which in various degrees actuates men in -their dealings with each other, cannot be so conceived. Thus for the -sovereignty, in an impalpable and unnatural sense, of the general -will, we get a sovereignty, in the natural and demonstrable sense, of -the multitude. But as the multitude is not everywhere supreme, the -assertion of its sovereignty has to be put in the form that it is -sovereign 'de jure.' The truth which underlies this proposition is -that an interest in common good is the ground of political society, -in the sense that without it no body of people would recognise any -authority as having a claim on their common obedience. It is so far -as a government represents to them a common good that the subjects -are conscious that they ought to obey it, i.e. that obedience to it -is a means to an end desirable in itself or absolutely. This truth -is latent in Rousseau's doctrine of the sovereignty of the general -will, but he confounds with it the proposition that no government has -a claim on obedience, but that which originates in a vote passed by -the people themselves who are called on to obey (a vote which must -be unanimous in the case of the original compact, and carried by a -majority in subsequent cases). - -99. This latter doctrine arises out of the delusion of natural right. -The individual, it is thought, having a right, not derived from -society, to do as he likes, can only forego that right by an act to -which he is a party. Therefore he has a right to disregard a law -unless it is passed by an assembly of which he has been a member, -and by the decision of which he has expressly or tacitly agreed to -be bound. Clearly, however, such a natural right of the individual -would be violated under most popular sovereignties no less than under -one purely monarchical, if he happened to object to the decision of -the majority; for to say, as Rousseau says, that he has virtually -agreed, by the mere fact of residence in a certain territory, to be -bound by the votes of the majority of those occupying that territory, -is a mere trick to save appearances. But in truth there is no such -natural right to do as one likes irrespectively of society. It is on -the relation to a society, to other men recognising a common good, -that the individual's rights depend, as much as the gravity of a body -depends on relations to other bodies. A right is a power claimed and -recognised as contributory to a common good. A right against society, -in distinction from a right to be treated as a member of society, is -a contradiction in terms. No one, therefore, has a right to resist a -law or ordinance of government, on the ground that it requires him -to do what he does not like, and that he has not agreed to submit -to the authority from which it proceeds; and if no one person has -such a right, no number of persons have it. If the common interest -requires it, no right can be alleged against it. Neither can its -enactment by popular vote enhance, nor the absence of such vote -diminish, its right to be obeyed. Rousseau himself well says that -the proper question for each citizen to ask himself in regard to any -proposal before the assembly is not, Do I like or approve it? but, -Is it according to the general will? which is only another way of -asking, Is it according to the general interest? It is only as the -organ of this general interest that the popular vote can endow any -law with the right to be obeyed; and Rousseau himself, if he could -have freed himself from the presuppositions of natural right, might -have admitted that, as the popular vote is by no means necessarily -an organ of the general interest, so the decree of a monarch or of -an aristocratic assembly, under certain conditions, might be such an -organ. - -100. But it may be asked, Must not the individual judge for himself -whether a law is for the common good? and if he decides that it is -not, is he not entitled to resist it? Otherwise, not only will laws -passed in the interest of individuals or classes, and against the -public good, have a claim to our absolute and permanent submission, -but a government systematically carried on for the benefit of a few -against the many can never be rightfully resisted. To the first -part of this question we must of course answer 'yes,' without -qualification. The degree to which the individual judges for himself -of the relation between the common good and the laws which cross -the path of his ordinary life, is the measure of his intelligent, -as distinguished from a merely instinctive, recognition of rights -in others and in the state; and on this recognition again depends -his practical understanding of the difference between mere powers -and rights as recognised by himself. Supposing then the individual -to have decided that some command of a 'political superior' is not -for the common good, how ought he to act in regard to it? In a -country like ours, with a popular government and settled methods of -enacting and repealing laws, the answer of common sense is simple -and sufficient. He should do all he can by legal methods to get the -command cancelled, but till it is cancelled he should conform to it. -The common good must suffer more from resistance to a law or to the -ordinance of a legal authority, than from the individual's conformity -to a particular law or ordinance that is bad, until its repeal can be -obtained. It is thus the social duty of the individual to conform, -and he can have no right, as we have seen, that is against his social -duty; no right to anything or to do anything that is not involved in -the ability to do his duty. - -101. But difficulties arise when either (I) it is a case of disputed -sovereignty, and in consequence the legal authority of the supposed -command is doubtful; or (2) when the government is so conducted -that there are no legal means of obtaining the repeal of a law; or -(3) when the whole system of a law and government is so perverted -by private interests hostile to the public that there has ceased to -be any common interest in maintaining it; or (4),--a more frequent -case,--when the authority from which the objectionable command -proceeds is so easily separable from that on which the maintenance of -social order and the fabric of settled rights depends, that it can be -resisted without serious detriment to this order and fabric. In such -cases, may there not be a right of resistance based on a 'higher law' -than the command of the ostensible sovereign? - -102. (1) As to cases where the legal authority of the supposed -command is doubtful. In modern states the definition of -sovereignty,--the determination of the person or persons with whom -the supreme power of making and enforcing law legally resides,--has -only been arrived at by a slow process. The European monarchies have -mostly arisen out of the gradual conversion of feudal superiority -into sovereignty in the strict sense. Great states, such as Germany -and Italy, have been formed by the combination of independent or -semi-dependent states. In England the unity of the state goes back -much further than anywhere else, but in England it was but gradually -that the residence of sovereignty jointly in king, lords, and commons -came to be practically established, and it is still founded merely on -a customary law. In the United States, with a written constitution, -it required all Austin's subtlety to detect where sovereignty lay, -and he places it where probably no ordinary citizen of the United -States had ever thought of it as residing, viz. 'in the states' -governments as forming one aggregate body: meaning by a state's -government, not its ordinary legislature, but the body of citizens -which appoints its ordinary legislature, and which, the union apart, -is properly sovereign therein.' He bases this view on the provision -in the constitution, according to which amendments to it are only -valid 'when ratified by the legislature in three-fourths of the -several states, or by convention in three-fourths thereof.' (I, p. -268.) But no ordinary citizen of the United States probably ever -thought of sovereignty except as residing either in the government -of his state or in the federal government consisting of congress and -president, or sometimes in one way, sometimes in the other. In other -countries, e.g. France, where since Louis XIV the quarter in which -sovereignty resides has at any given time been easily assignable, -there have since the revolution been such frequent changes in the -ostensible sovereign that there might almost at any time have been a -case for doubting whether the ostensible sovereign had such command -over the habitual obedience of the people as to be a sovereign in -that sense in which there is a social duty to obey the sovereign, as -the representative of the common interest in social order; whether -some prior sovereignty was not really still in force. For these -various reasons there have been occasions in the history of all -modern states at which men, or bodies of men, without the conscious -assertion of any right not founded upon law, might naturally deem -themselves entitled to resist an authority which on its part claimed -a right--a legally established power--to enforce obedience, and -turned out actually to possess the power of doing so. - -103. In such cases the truest retrospective account to be given -of the matter will often be, that at the time there was nothing -amounting to a right on either side. A right is a power of which the -exercise by the individual or by some body of men is recognised by -a society, either as itself directly essential to a common good, or -as conferred by an authority of which the maintenance is recognised -as so essential. But in cases of the kind described the authorities, -appealed to on each side as justifying respectively compulsion and -resistance, often do not command a sufficiently general recognition -of their being necessary to the common good to enable them to confer -rights of compulsion or resistance. One or other of them may be -coming to do so, or ceasing to do so, but rights, though on the one -hand they are eternal or at least coeval with human society, on the -other hand take time to form themselves in this or that particular -subject and to transfer themselves from one subject to another; (just -as one may hold reason to be eternal, and yet hold that it takes -time for this or that being to become rational.) Hence in periods -of conflict between local or customary and imperial or written law, -between the constituent powers of a sovereignty, such as king and -parliament in England, of which the relation to each other has not -become accurately defined, between a falling and a rising sovereign -in a period of revolution, between federal and state authorities in -a composite state, the facts are best represented by saying that -for a time there may be no right on either side in the conflict, -and that it is impossible to determine precisely the stage at which -there comes to be such a right on the one side as implies a definite -resistance to right on the other. This of course is not to be taken -to mean that in such periods rights in general are at an end. It is -merely that right is in suspense on the particular point at issue -between the conflicting powers. As we have seen, the general fabric -of rights in any society does not depend on the existence of a -definite and ascertained sovereignty, in the restricted sense of the -words; on the determination of a person or persons in whom supreme -power resides; but on the control of the conduct of men according to -certain regular principles by a society recognising common interests; -and though such control may be more or less weakened during periods -of conflict of the kind supposed, it never ceases. - -104. It does not follow, however, because there may often not be -strictly a right on either side in such periods of conflict, that -there is not a good and an evil, a better and a worse, on one side -or the other. Of this we can only judge by reference to the end, -whatever it be, in which we conceive the good of man to consist. -There may be clear ground for saying, in regard to any conflict, -that one side rather than the other _ought_ to have been taken, not -because those on one side were, those on the other were not, entitled -to say that they had a right to act as they did, but because the -common good of a nation or mankind was clearly promoted by one line -of action, not by the other. E.g. in the American war of secession, -though it would be difficult to say that a man had not as much a -right to fight for his seceding state as for the Union, yet as the -special interest of the seceding states was that of maintaining -slavery, there was reason for holding that the side of the Union, not -that of the seceding states, was the one which ought to be taken. On -the other hand, it does not follow that in a struggle for sovereignty -the good of man is more served by one of the competing powers than -by the other. Good may come out of the conflict without one power -contributing more to it than the other. There may thus be as little -ground retrospectively for saying that one side or the other ought -to have been taken, as that men had a right to take one and not -the other. At the same time, as regards the individual, there is -no reason for doubting that the better the motive which determines -him to take this side or that, the more he is actuated in doing so -by some unselfish desire for human good, the more free he is from -egotism, and that conceit or opinionatedness which is a form of -egotism, the more good he will do whichever side he adopts. - -105. It is in such cases as we have been considering that the -distinction between sovereign 'de facto' and sovereign 'de jure' -arises. It has a natural meaning in the mouths of those who, in -resisting some coercive power that claims their obedience, can point -to another determinate authority to which they not only consider -obedience due, but to which such obedience in some considerable -measure is actually rendered; a meaning which it has not when all -that can be opposed to sovereign 'de facto' is either a 'general -will,' or the mere name of a fallen dynasty exercising no control -over men in their dealings with each other. But where this opposition -can be used with a natural meaning, it is a truer account of the -matter (as we have seen) to say that sovereignty is in abeyance. The -existence of competing powers, each affecting to control men in the -same region of outward action, and each having partisans who regard -it alone as entitled to exercise such control, implies that there is -not that unity of supreme control over the outward actions of men -which constitutes sovereignty and which is necessary to the complete -organisation of a state. The state has either not reached complete -organisation, or is for the time disorganised, the disorganisation -being more or less serious according to the degree to which the -everyday rights of men (their ordinary freedom of action and -acquisition) are interfered with by this want of unity in the supreme -control. - -106. In such a state of things, the citizen has no rule of 'right' -(in the strict sense of the word) to guide him. He is pretty sure -to think that one or other of the competing powers has a right to -his obedience because, being himself interested (not necessarily -selfishly interested) in its support, he does not take account of its -lacking that general recognition as a power necessary to the common -good which is requisite in order to give it a right. But we looking -back may see that there was no such right. Was there then nothing to -direct him either way? Simply, I should answer, the general rule of -looking to the moral good of mankind, to which a necessary means is -the organisation of the state, which again requires unity of supreme -control, in the common interest, over the outward actions of men. -The citizen ought to have resisted or obeyed either of the competing -authorities, according as by doing so he contributed most to the -organisation of the state in the sense explained. It must be admitted -that without more knowledge and foresight than the individual can be -expected to possess, this rule, if he had recognised it, could have -afforded him no sure guidance; but this is only to say that there are -times of political difficulty in which the line of conduct adopted -may have the most important effect, but in which it is very hard to -know what is the proper line to take. On the other side must be set -the consideration that the man who brings with him the character most -free from egotism to the decision even of those questions of conduct, -as to which established rules of right and wrong are of no avail, is -most sure on the whole to take the line which yields the best results. - -107. We come next to the question of the possible duty of resistance -in cases where no law, acknowledged or half-acknowledged, -written or customary, can be appealed to against a command -(general or particular) contrary to the public good; where no -counter-sovereignty, in the natural sense of the words, can be -alleged against that of the imponent of the law; and where at the -same time, from the people having no share, direct or indirect, in -the government, there is no means of obtaining a repeal of the law -by legal means. I say the 'duty' of resistance because, from the -point of view here adopted, there can be no 'right,' unless on the -ground that it is for the common good, and if so, there is a duty. In -writings of the seventeenth and eighteenth centuries, starting with -the assumption of natural rights, the question was never put on its -proper footing. It was not asked, When, for the sake of the common -good, the citizen ought to resist the sovereign? but, What sort of -injury to person or property gave him a natural right to resist? Now -there is sense in inquiring upon what sort and amount of provocation -from government individuals inevitably will resist; how (in Spinoza's -language) that 'indignatio' is excited which leads them 'in unum -conspirare'; but there is none in asking what gives them a right to -resist, unless we suppose a wrong done to society in their persons; -and then it becomes a question not of right merely, but of duty, -whether the wrong done is such as to demand resistance. Now when the -question is thus put, no one presumably would deny that under certain -conditions there might be a duty of resistance to sovereign power. - -108. It is important, however, that instead of discussing the right -of a majority to resist, we should discuss the duty of resistance as -equally possible for a minority and a majority. There can be no right -of a majority of citizens, as such, to resist a sovereign. If by -law, written or customary, the majority of citizens possess or share -in the sovereign power, then any conflict that may arise between it -and any power cannot be a conflict between it and the sovereign. The -majority may have a right to resist such a power, but it will not be -a right to resist a _sovereign_. If, on the other hand, the majority -of citizens have no share by law or custom in the supreme law-making -and law-enforcing power, they never can have a right, simply as a -majority, to resist that power. - -In such a case, there may arise a social duty to resist, and the -exercise of men's powers in fulfilment of that duty may be sustained -by such a general recognition of its being for the public good, as to -become a right; but the resistance may be a duty before a majority of -the citizens approve it, and does not necessarily become a duty when -a majority of them do approve it; while that general recognition of -its exercise as being for the common good, through which the power -of resistance becomes a right, must be something more habitual and -sustained and penetrating than any vote of a majority can convey. -Incidentally, however, the consideration of the attitude of the mass -of the people in regard to a contemplated resistance to established -government must always be most important in determining the question -whether the resistance should be made. It should be made, indeed, if -at all, not because the majority approve it, but because it is for -the public good; but account must be taken of the state of mind of -the majority in considering whether it is for the public good or no. -The presumption must generally be that resistance to a government is -not for the public good when made on grounds which the mass of the -people cannot appreciate; and it must be on the presence of a strong -and intelligent popular sentiment in favour of resistance that the -chance of avoiding anarchy, of replacing the existing government -by another effectual for its purpose, must chiefly depend. On the -other hand, it is under the worst governments that the public spirit -is most crushed; and thus in extreme cases there may be a duty of -resistance in the public interest, though there is no hope of the -resistance finding efficient popular support. (An instance is the -Mazzinian outbreaks in Italy.) Its repeated renewal and repeated -failure may afford the only prospect of ultimately arousing the -public spirit which is necessary for the maintenance of a government -in the public interest. And just as there may thus be a duty of -resistance on the part of a hopeless minority, so on the other side -resistance even to a monarchic or oligarchic government is not -justified by the fact that a majority, perhaps in some temporary -fit of irritation or impatience, is ready to support it, if, as may -very well be, the objects for which government subsists--the general -freedom of action and acquisition and self-development--are likely to -suffer from an overthrow of the government in the popular interest. - -109. No precise rule, therefore, can be laid down as to the -conditions under which resistance to a despotic government becomes -a duty. But the general questions which the good citizen should -ask himself in contemplating such resistance will be, __(a)__ What -prospect is there of resistance to the sovereign power leading to -a modification of its character or an improvement in its exercise -without its subversion? _(b)_ If it is overthrown, is the temper of -the people such, are the influences on which the general maintenance -of social order and the fabric of recognised rights depend so far -separable from it, that its overthrow will not mean anarchy? _(c)_ If -its overthrow does lead to anarchy, is the whole system of law and -government so perverted by private interests hostile to the public, -that there has ceased to be any common interest in maintaining it? - -110. Such questions are so little likely to be impartially -considered at a time when resistance to a despotic government is -in contemplation, and, however impartially considered, are so -intrinsically difficult to answer, that it may seem absurd to dwell -on them. No doubt revolutionists do and must to a great extent 'go -it blind.' Such beneficent revolutions as there have been could not -have been if they did not. But in most of those questions of right -and wrong in conduct, which have to be settled by consideration of -the probable effects of the conduct, the estimate of effects which -regulates our approval or disapproval upon a retrospective survey, -and according to which we say that an act should or should not have -been done, is not one which we could expect the agent himself to have -made. The effort to make it would have paralysed his power of action. - -111. In the simple cases of moral duty, where there is no real doubt -as to the effects of this or that action, and danger arises from -interested self-sophistication, we can best decide for ourselves -whether we ought to act in this way or that by asking whether it -is what is good in us--a disinterested or unselfish motive--that -moves us to act in this way or that; and in judging of the actions -of others, where the issues and circumstances are simple, the moral -question, the question of 'ought' or 'ought not,' is often best put -in the form, How far was the action such as could represent a good -character? That indeed is the form in which the question should -always be put, when the nature of the case admits it; since, as -argued elsewhere [_Prol. to Ethics_, Bk II, Chaps I and II], it is -only in its relation to character that action is in the full sense -good or bad. But where the probable effects of a certain line of -action are at the time of taking it very obscure, we cannot be sure -that relatively the best character will lead a man to take the line -which turns out best in the result, or that because a line of action -has turned out well in result, the character of the man who adopted -it was good. This being so, in judging of the act retrospectively we -have to estimate it by the result simply, in abstraction from the -character of the agent. Thus in looking back upon a revolutionary -outbreak we can only judge whether it was vindicated by the result. -If in the light of the result it appears that conditions were not -present under which it would have furthered rather than interfered -with the true objects of government, we judge that it should not -have been made; if otherwise, we approve it,--judge that the persons -concerned in it were doing their duty in acting as they did. But -whether they were really doing their duty in the full sense of -the term in acting as they did in a case when the outbreak was -successful, or not doing it in a case where it failed, is what we -simply cannot tell; for this depends on the state of character which -their action represented, and that is beyond our ken. - -112. Such is the necessary imperfection under which all historical -judgments labour, though historians are not apt to recognise it and -would be thought much more dull if they did. They would have fewer -readers if they confined themselves to the analysis of situations, -which may be correctly made, and omitted judgments on the morality -of individuals for which, in the proper sense, the data can never -be forthcoming. We scarcely have them for ourselves (except that we -know that we are none of us what we should be), still less for our -intimate acquaintance; not at all for men whom we only know through -history, past or present, in regard to them, we can only fall back on -the generalisation, that the best man--the man most disinterestedly -devoted to the perfecting of humanity, in some form or other, in -his own person or that of others--is more likely to act in a way -that is good as measured by its results, those results again being -estimated with reference to an ideal of character, and that this is -so even under circumstances of political complication. Appearances -to the contrary, appearances of harm done from good motives, may be -met by the considerations, (1) that there is often much egotism in -what calls itself conscientiousness, and that the 'conscientious' -motives which lead to mischievous acts may not be in the highest -sense disinterested; (2) that to what we call the consequences of an -action many influences contribute besides the action which we call -the cause, and if evil seems to clog the consequences of action pure -in motive, this may be due to other influences connected with motives -less worthy, while the consequences which in the rough we call bad -might have been worse but for the intervention of the purely-motived -action; (3) that the beneficent results are often put to the credit -of the actions of selfish men when they should rather be credited to -influences more remote and complex, without which those actions would -have been impossible or had no good effect, and which have arisen out -of unselfish activities. We see the evil in a course of events and -lay the blame on someone who should have acted differently, and whom -perhaps we take as an instance of how good men cause mischief; but -we do not see the greater evil which would otherwise have ensued. In -regard to the questions stated above as those which the good citizen -should set himself in contemplation of a possible rebellion, though -they are questions to which it is impossible for a citizen in the -heat of a revolutionary crisis to give a sufficient answer, and which -in fact can only be answered after the event, yet they represent -objects which the good citizen will set before himself at such times; -and in proportion to the amount of good citizenship, as measured by -interest in those objects, interest in making the best of existing -institutions, in maintaining social order and the general fabric of -rights, interest which leads to a _bona fide_ estimate of the value -of the existing government in its relation to public good, will be -the good result of the political movement. - - G. _WILL, NOT FORCE, IS THE BASIS OF THE STATE._ - -113. Looking back on the political theories which we have discussed, -we may see that they all start with putting the question to be dealt -with in the same way, and that their errors are very much due to the -way in which they put it. They make no inquiry into the development -of society and of man through society. They take no account of -other forms of community than that regulated by a supreme coercive -power, either in the way of investigating their historical origin -and connection, or of considering the ideas and states of mind which -they imply or which render them possible. They leave out of sight the -process by which men have been clothed with rights and duties, and -with senses of right and duty, which are neither natural nor derived -from a sovereign power. They look only to the supreme coercive power -on the one side and to individuals, to whom natural rights are -ascribed, on the other, and ask what is the nature and origin of -the right of that supreme coercive power as against these natural -rights of individuals. The question so put can only be answered by -some device for representing the individuals governed as consenting -parties to the exercise of government over them. This they no doubt -are so long as the government is exercised in a way corresponding to -their several wishes; but, so long as this is the case, there is no -interference with their 'natural liberty' to do as they like. It is -only when this liberty is interfered with, that any occasion arises -for an explanation of the compatibility of the sovereign's right with -the natural right of the individual; and it is just then that the -explanation by the supposition that the right of the sovereign is -founded on consent, fails. But the need of the fictitious explanation -arises from a wrong way of putting the question; the power which -regulates our conduct in political society is conceived in too -abstract a way on the one side, and on the other are set over against -it, as the subjects which it controls, individuals invested with all -the moral attributes and rights of humanity. But in truth it is only -as members of a society, as recognising common interests and objects, -that individuals come to have these attributes and rights; and the -power, which in a political society they have to obey, is derived -from the development and systematisation of those institutions for -the regulation of a common life without which they would have no -rights at all. - -114. To ask why I am to submit to the power of the state, is to -ask why I am to allow my life to be regulated by that complex of -institutions without which I literally should not have a life to -call my own, nor should be able to ask for a justification of what -I am called on to do. For that I may have a life which I can call -my own, I must not only be conscious of myself and of ends which I -present to myself as mine; I must be able to reckon on a certain -freedom of action and acquisition for the attainment of those ends, -and this can only be secured through common recognition of this -freedom on the part of each other by members of a society, as being -for a common good. Without this, the very consciousness of having -ends of his own and a life which he can direct in a certain way, a -life of which he can make something, would remain dormant in a man. -It is true that slaves have been found to have this consciousness -in high development; but a slave even at his lowest has been partly -made what he is by an ancestral life which was not one of slavery -pure and simple, a life in which certain elementary rights were -secured to the members of a society through their recognition of a -common interest. He retains certain spiritual aptitudes from that -state of family or tribal freedom. This, perhaps, is all that could -be said of most of the slaves on plantations in modern times; but -the slavery of the ancient world, being mainly founded on captivity -in war, was compatible with a considerable amount of civilisation -on the part of the slaves at the time when their slavery began. A -Jewish slave, e.g., would carry with him into slavery a thoroughly -developed conception of right and law. Slavery, moreover, implies the -establishment of some regular system of rights in the slave-owning -society. The slave, especially the domestic slave, has the signs -and effects of this system all about him. Hence such elementary -consciousness of rights--of powers that are his own to make the best -of--as the born slave may inherit from an ancestral life of freedom, -finds a stimulus to its inward development, though no opportunity -for outward exercise, in the habits and ideas of civilised life with -which a common language enables the slave to become conversant, and -which, through the sympathy implied in a common language, he to some -extent makes his own. Thus the appearance in slaves of the conception -that they should be masters of themselves, does not conflict with -the proposition that only so far as a certain freedom of action and -acquisition is secured to a body of men through their recognition of -the exercise of that freedom by each other as being for the common -good, is there an actualisation of the individual's consciousness -of having life and ends of his own. The exercise, manifestation, -expression of this consciousness through a freedom secured in the way -described is necessary to its real existence, just as language of -some sort is necessary to the real existence of thought, and bodily -movement to that of the soul. - -115. The demand, again, for a justification of what one is called on -by authority to do presupposes some standard of right, recognised -as equally valid for and by the person making the demand and others -who form a society with him, and such a recognised standard in turn -implies institutions for the regulation of men's dealings with each -other, institutions of which the relation to the consciousness of -right may be compared, as above, to that of language to thought. -It cannot be said that the most elementary consciousness of right -is prior to them, or they to it. They are the expressions in which -it becomes real. As conflicting with the momentary inclinations -of the individual, these institutions are a power which he obeys -unwillingly; which he has to, or is made to, obey. But it is only -through them that the consciousness takes shape and form which -expresses itself in the question, 'Why should I thus be constrained? -By what right is my natural right to do as I like overborne?' - -116. The doctrine that the rights of government are founded on the -consent of the governed is a confused way of stating the truth, -that the institutions by which man is moralised, by which he comes -to do what he sees that he must, as distinct from what he would -like, express a conception of a common good; that through them that -conception takes form and reality; and that it is in turn through its -presence in the individual that they have a constraining power over -him, a power which is not that of mere fear, still less a physical -compulsion, but which leads him to do what he is not inclined to -because there is a law that he should. - -Rousseau, it will be remembered, speaks of the 'social pact' not -merely as the foundation of sovereignty or civil government, but as -the foundation of morality. Through it man becomes a moral agent; for -the slavery to appetite he substitutes the freedom of subjection to a -self-imposed law. If he had seen at the same time that rights do not -begin till duties begin, and that if there was no morality prior to -the pact there could not be rights, he might have been saved from the -error which the notion of there being natural rights introduces into -his theory. But though he does not seem himself to have been aware -of the full bearing of his own conception, the conception itself -is essentially true. Setting aside the fictitious representation -of an original covenant as having given birth to that common 'ego' -or general will, without which no such covenant would have been -possible, and of obligations arising out of it, as out of a bargain -made between one man and another, it remains true that only through -a recognition by certain men of a common interest, and through the -expression of that recognition in certain regulations of their -dealings with each other, could morality originate, or any meaning be -gained for such terms as 'ought' and 'right' and their equivalents. - -117. Morality, in the first instance, is the observance of such -regulations, and though a higher morality, the morality of the -character governed by 'disinterested motives,' i.e. by interest -in some form of human perfection, comes to differentiate itself -from this primitive morality consisting in the observance of rules -established for a common good, yet this outward morality is the -presupposition of the higher morality. Morality and political -subjection thus have a common source, '_political_ subjection' -being distinguished from that of a slave, as a subjection which -secures rights to the subject. That common source is the rational -recognition by certain human beings--it may be merely by children of -the same parent--of a common well-being which is their well-being, -and which they conceive as their well-being whether at any moment -any one of them is inclined to it or no, and the embodiment of that -recognition in rules by which the inclinations of the individuals are -restrained, and a corresponding freedom of action for the attainment -of well-being on the whole is secured. - -118. From this common source morality and political subjection in -all its forms always retain two elements in common, one consisting -in antagonism to some inclination, the other consisting in the -consciousness that the antagonism to inclination is founded on reason -or on the conception of some adequate good. It is the antagonism -to inclination involved in the moral life, as alone we know it, -that makes it proper to speak analogically of moral 'laws' and -'imperatives.' It must be remembered, however, that such language -_is_ analogical, and that there is an essential difference between -laws in the strictest sense (laws which are indeed not adequately -described as general commands of a political superior, sanctioned -by liability to pains which that superior can inflict, but in which -a command so sanctioned is an essential element), and the laws of -conscience, of which it is the peculiar dignity that they have no -external imponent and no sanction consisting in fear of bodily evil. -The relation of constraint, in the one case between the man and the -externally imposed law, in the other between some particular desire -of the man and his consciousness of something absolutely desirable, -we naturally represent in English, when we reflect on it, by the -common term 'must.' 'I _must_ connect with the main drainage,' says -the householder to himself, reflecting on an edict of the Local -Board. 'I _must_ try to get A.B. to leave off drinking,' he says to -himself, reflecting on a troublesome moral duty of benevolence to his -neighbour. And if the 'must' in the former case represents in part -the knowledge that compulsion may be put on the man who neglects to -do what he must, which is no part of its meaning in the second, on -the other hand the consciousness that the constraint is for a common -good, which wholly constitutes the power over inclination in the -second case, must always be an element in that obedience which is -properly called obedience to law, or civil or political obedience. -Simple fear can never constitute such obedience. To represent it as -the basis of civil subjection is to confound the citizen with the -slave, and to represent the motive which is needed for the restraint -of those in whom the civil sense is lacking, and for the occasional -reinforcements of the law-abiding principle in others, as if it were -the normal influence in habits of life of which the essential value -lies in their being independent of it. How far in any particular act -of conformity to law the fear of penalties may be operative, it is -impossible to say. What is certain is, that a habit of subjection -founded upon such fear could not be a basis of political or free -society; for to this it is necessary, not indeed that everyone -subject to the laws should take part in voting them, still less -that he should consent to their application to himself, but that it -should represent an idea of common good, which each member of the -society can make his own so far as he is rational, i.e. capable of -the conception of a common good, however much particular passions -may lead him to ignore it and thus necessitate the use of force -to prevent him from doing that which, so far as influenced by the -conception of a common good, he would willingly abstain from. - -119. Whether the legislative and administrative agencies of society -can be kept in the main free from bias by private interests, and -true to the idea of common good, without popular control; whether -again, if they can, that 'civil sense,' that appreciation of common -good on the part of the subjects, which is as necessary to a free or -political society as the direction of law to the maintenance of a -common good, can be kept alive without active participation of the -people in legislative functions; these are questions of circumstances -which perhaps do not admit of unqualified answers. The views of those -who looked mainly to the highest development of political life in a -single small society, have to be modified if the object sought for -is the extension of political life to the largest number of people. -The size of modern states renders necessary the substitution of a -representative system for one in which the citizens shared directly -in legislation, and this so far tends to weaken the active interest -of the citizens in the common weal, though the evil may partly be -counteracted by giving increased importance to municipal or communal -administration. In some states, from the want of homogeneity or -facilities of communication, a representative legislature is -scarcely possible. In others, where it exists, a great amount of -power, virtually exempt from popular control, has to be left with -what Rousseau would have called the 'prince or magistrate.' In all -this there is a lowering of civil vitality as compared with that of -the ancient, and perhaps of some exceptionally developed modern, -commonwealths. But perhaps this is a temporary loss that we have to -bear as the price of having recognised the claim to citizenship as -the claim of all men. Certainly all political ideals, which require -active and direct participation by the citizens in the functions of -the sovereign state, fail us as soon as we try to conceive their -realisation on the wide area even of civilised mankind. It is easy -to conceive a better system than that of the great states of modern -Europe, with their national jealousies, rival armies, and hostile -tariffs; but the condition of any better state of things would seem -to be the recognition of some single constraining power, which would -be even more remote from the active co-operation of the individual -citizen than is the sovereign power of the great states at present. - -120. These considerations may remind us how far removed from any -foundation in their own will the requirements of the modern state -must seem to be to most of those who have to submit to them. It is -true that the necessity which the state lays upon the individual -is for the most part one to which he is so accustomed that he no -longer kicks against it; but what is it, we may ask, but an external -necessity, which he no more lays on himself than he does the weight -of the atmosphere or the pressure of summer heat and winter frosts, -that compels the ordinary citizen to pay rates and taxes, to serve -in the army, to abstain from walking over the squire's fields, -snaring his hares, or fishing in preserved streams, to pay rent, -to respect those artificial rights of property which only the -possessors of them have any obvious interest in maintaining, or -even (if he is one of the 'proletariate') to keep his hands off the -superfluous wealth of his neighbour, when he has none of his own -to lose? Granted that there are good reasons of social expediency -for maintaining institutions which thus compel the individual to -actions and forbearances that are none of his willing, is it not -abusing words to speak of them as founded on a conception of general -good? A conception does not float in the air. It must be somebody's -conception. Whose conception, then, of general good is it that these -institutions represent? Not that of most of the people who conform -to them, for they do so because they are made to, or have come to -do so habitually from having been long made to; (i.e. from being -frightened at the consequences of not conforming, not consequences -which follow from not conforming in the ordinary course of nature, -but consequences which the state inflicts, artificial consequences.) -But when a man is said to obey an authority from interest in a common -good, some other good is meant than that which consists in escaping -the punishment which the authority would inflict on disobedience. Is -then the conception of common good which is alleged a conception of -it on the part of those who founded or who maintain the institutions -in question? But is it not certain that private interests have been -the main agents in establishing, and are still in maintaining, at any -rate all the more artificial rights of property? Have not our modern -states, again, in nearly every case been founded on conquest, and are -not the actual institutions of government in great measure the direct -result of such conquest, or, where revolutions have intervened, of -violence which has been as little governed by any conception of -general good? Supposing that philosophers can find exquisite reasons -for considering the institutions and requirements which have resulted -from all this self-seeking and violence to be contributory to the -common good of those who have to submit to them, is it not trifling -to speak of them as founded on or representing a conception of this -good, when no such conception has influenced those who established, -maintain, or submit to them? And is it not seriously misleading, when -the requirements of the state have so largely arisen out of force -directed by selfish motives, and when the motive to obedience to -those requirements is determined by fear, to speak of them as having -a common source with the morality of which it is admitted that the -essence is to be disinterested and spontaneous? - -121. If we would meet these objections fairly, certain admissions -must be made. The idea of a common good which the state fulfils has -never been the sole influence actuating those who have been agents in -the historical process by which states have come to be formed; and -even so far as it has actuated them, it has been only as conceived -in some very imperfect form that it has done so. This is equally -true of those who contribute to the formation and maintenance of -states rather as agents, and of those who do so rather as patients. -No one could pretend that even the most thoughtful and dispassionate -publicist is capable of the idea of the good served by the state to -which he belongs, in all its fulness. He apprehends it only in some -of its bearings; but it is as a common good that he apprehends it, -i.e. not as a good for himself or for this man or that more than -another, but for all members equally in virtue of their relation -to each other and their common nature. The idea which the ordinary -citizen has of the common good served by the state is much more -limited in content. Very likely he does not think of it at all in -connection with anything that the term 'state' represents to him. -But he has a clear understanding of certain interests and rights -common to himself with his neighbours, if only such as consist in -getting his wages paid at the end of the week, in getting his money's -worth at the shop, in the inviolability of his own person and that -of his wife. Habitually and instinctively, i.e. without asking the -reason why, he regards the claim which in these respects he makes -for himself as conditional upon his recognising a like claim in -others, and thus as in the proper sense a right,--a claim of which -the essence lies in its being common to himself with others. Without -this instinctive recognition he is one of the 'dangerous classes,' -virtually outlawed by himself. With it, though he have no reverence -for the 'state' under that name, no sense of an interest shared with -others in maintaining it, he has the needful elementary conception of -a common good maintained by law. It is the fault of the state if this -conception fails to make him a loyal subject, if not an intelligent -patriot. It is a sign that the state is not a true state; that it is -not fulfilling its primary function of maintaining law equally in -the interest of all, but is being administered in the interest of -classes; whence it follows that the obedience which, if not rendered -willingly, the state compels the citizen to render, is not one that -he feels any spontaneous interest in rendering, because it does not -present itself to him as the condition of the maintenance of those -rights and interests, common to himself with his neighbours, which he -understands. - -122. But if the law which regulates private relations and its -administration are so equally applied to all, that all who are -capable of a common interest are prompted by that interest to conform -to the law, the result is still only the loyal subject as distinct -from the intelligent patriot, i.e. as distinct from the man who so -appreciates the good which in common with others he derives from the -state--from the nation organised in the form of a self-governing -community to which he belongs--as to have a passion for serving -it, whether in the way of defending it from external attack, or -developing it from within. The citizens of the Roman empire were -loyal subjects; the admirable maintenance of private rights made them -that; but they were not intelligent patriots, and chiefly because -they were not, the empire fell. That active interest in the service -of the state, which makes patriotism in the better sense, can hardly -arise while the individual's relation to the state is that of a -passive recipient of protection in the exercise of his rights of -person and property. While this is the case, he will give the state -no thanks for the protection which he will come to take as a matter -of course, and will only be conscious of it when it descends upon him -with some unusual demand for service or payment, and then he will be -conscious of it in the way of resentment. If he is to have a higher -feeling of political duty, he must take part in the work of the -state. He must have a share, direct or indirect, by himself acting -as a member or by voting for the members of supreme or provincial -assemblies, in making and maintaining the laws which he obeys. Only -thus will he learn to regard the work of the state as a whole, and -to transfer to the whole the interest which otherwise his particular -experience would lead him to feel only in that part of its work that -goes to the maintenance of his own and his neighbour's rights. - -123. Even then his patriotism will hardly be the passion which it -needs to be, unless his judgment of what he owes to the state is -quickened by a feeling of which the 'patria,' the fatherland, the -seat of one's home, is the natural object; and of this feeling -the state becomes the object only so far as it is an organisation -of a people to whom the individual feels himself bound by ties -analogous to those which bind him to his family, ties derived from a -common dwelling-place with its associations, from common memories, -traditions and customs, and from the common ways of feeling and -thinking which a common language and still more a common literature -embodies. Such an organisation of an homogeneous people the modern -state in most cases is (the two Austrian states being the most -conspicuous exceptions), and such the Roman state emphatically was -not. - -124. But, it will be said, we are here again falling back on our -unproved assumption that the state is an institution for the -promotion of a common good. This granted, it is not difficult to -make out that in most men at any rate there is a sufficient interest -in some form of social well-being, sufficient understanding of the -community between their own well-being and that of their neighbours, -to make them loyal to such an institution. But the question is, -whether the promotion of a common good, at any rate in any sense -appreciable by the multitude, is any necessary characteristic of a -state. It is admitted that the outward visible sign of a state is -the presence of a supreme or independent coercive power, to which, -habitual obedience is rendered by a certain multitude of people, -and that this power may often be exercised in a manner apparently -detrimental to the general well-being. It may be the case, as we -have tried to show that it is, that a power which is in the main so -exercised, and is generally felt to be so, is not likely long to -maintain its supremacy; but this does not show that a state cannot -exist without the promotion of the common good of its subjects, or -that (in any intelligible way) the promotion of such good belongs -to the idea of a state. A short-lived state is not therefore not a -state, and if it were, it is rather the active interference with the -subject's well-being, than a failure to promote it, that is fatal -to the long life of a state. How, finally, can the state be said to -exist for the sake of an end, or to fulfil an idea, the contemplation -of which, it is admitted, has had little to do with the actions which -have had most to do with bringing states into existence? - -125. The last question is a crucial one, which must be met at -the outset. It must be noticed that the ordinary conception of -organisation, as we apply it in the interpretation of nature, implies -that agents may be instrumental in the attainment of an end or the -fulfilment of an idea of which there is no consciousness on the -part of the organic agents themselves. If it is true on the one -hand that the interpretation of nature by the supposition of ends -external to it, with reference to which its processes are directed, -has been discarded, and that its rejection has been the condition -of growth in an exact knowledge of nature, on the other hand the -recognition of ends immanent in nature, of ideas realised within it, -is the basis of a scientific explanation of life. The phaenomena -of life are not ideal, in the sense in which the ideal is opposed -to that which is sensibly verifiable, but they are related to the -processes of material change which are their conditions, as ideas -or ideal ends which those processes contribute to realise, because, -while they determine the processes (while the processes would not -be what they are but for relation to them), yet they are not those -processes, not identical with any one or number of them, or all of -them together. Life does not reside in any of the organs of life, -or in any or all of the processes of material change through which -these pass. Analyse or combine these as you will, you do not detect -it as the result of the analysis or combination. It is a function or -end which they realise according to a plan or idea which determines -their existence before they exist and survives their disappearance. -If it were held, then, that the state were an organised community -in the same sense in which a living body is, of which the members -at once contribute to the function called life, and are made what -they are by that function, according to an idea of which there is no -consciousness on their part, we should only be following the analogy -of the established method of interpreting nature. - -126. The objection to such a view would be that it represents the -state as a purely natural, not at all as a moral, organism. Moral -agency is not merely an agency by which an end is attained, or an -idea realised, or a function fulfilled, but an agency determined by -an idea on the part of the agent, by his conception of an end or -function; and the state would be brought into being and sustained -by merely natural, as opposed to moral, agency, unless there were -a consciousness of ends--and of ends the same in principle with -that served by the state itself--on the part of those by whom it is -brought into being, and sustained. I say 'ends the same in principle -with that served by the state itself,' because, if the state arose -out of the action of men determined, indeed, by the consciousness of -ends, but ends wholly heterogeneous to that realised by the state, -it would not be a moral institution, would not stand in any moral -relation to men. Now among the influences that have operated in the -formation of states, a large part, it must be admitted, are simply -natural. Such are the influences of climate, of distribution of -mountain and plain, land and water, &c, of all physical demarcations -and means of communication. But these, it is clear, are only organic -to the formation of states so far as, so to speak, they take a -character, which does not belong to them as merely natural, from -agencies distinctively human. - -127. 'Human, if you like,' it may be replied, 'but not moral, if a -moral agency implies any reference to a social or human good, to a -good which the individual desires because it is good for others, or -for mankind, as well as himself. In the earth--hunger of conquering -hordes, in the passions of military despots, in the pride or avarice -or vindictiveness which moved such men as Louis XI or Henry VIII to -override the semi-anarchy of feudalism with a real sovereignty, what -is there of reference to such good? Yet if we suppose the influence -of such motives as these, together with the natural influences just -spoken of, to be erased from the history of the formation of states, -its distinguishing features are gone.' - -128. The selfish motives described must not, any more than the -natural influences, be regarded in abstraction, if we would -understand their true place in the formation of states. The pure -desire for social good does not indeed operate in human affairs -unalloyed by egotistic motives, but on the other hand what we call -egotistic motives do not act without direction from an involuntary -reference to social good,--'involuntary' in the sense that it is so -much a matter of course that the individual does not distinguish it -from his ordinary state of mind. The most conspicuous modern instance -of a man who was instrumental in working great and in some ways -beneficial changes in the political order of Europe, from what we -should be apt to call the most purely selfish motives, is Napoleon. -Without pretending to analyse these motives precisely, we may say -that a leading one was the passion for glory; but if there is to -be truth in the statement that this passion governed Napoleon, it -must be qualified by the farther statement that the passion was -itself governed by social influences, operative on him, from which -it derived its particular direction. With all his egotism, his -individuality was so far governed by the action of the national -spirit in and upon him, that he could only glorify himself in the -greatness of France; and though the national spirit expressed itself -in an effort after greatness which was in many ways of a mischievous -and delusive kind, yet it again had so much of what may be called the -spirit of humanity in it, that it required satisfaction in the belief -that it was serving mankind. Hence the aggrandisement of France, in -which Napoleon's passion for glory satisfied itself, had to take at -least the semblance of a deliverance of oppressed peoples, and in -taking the semblance it to a great extent performed the reality; at -any rate in western Germany and northern Italy, wherever the Code -Napoléon was introduced. - -129. It is thus that actions of men, whom in themselves we reckon -bad, are 'overruled' for good. There is nothing mysterious or -unintelligible in such 'overruling.' There is nothing in the effect -which we ascribe to the 'overruling,' any more than in any effect -belonging to the ordinary course of nature, which there was not -in the cause as it really was and as we should see it to be if we -fully understood it. The appearance to the contrary arises from our -taking too partial and abstract a view of the cause. We look at the -action e.g. of Napoleon with reference merely to the selfishness -of his motives. We forget how far his motives, in respect of their -concrete reality, in respect of the actual nature of the ends -pursued as distinct from the particular relation in which those -ends stood to his personality, were made for him by influences with -which his selfishness had nothing to do. It was not his selfishness -that made France a nation, or presented to him continuously an end -consisting in the national aggrandisement of France, or at particular -periods such ends as the expulsion of the Austrians from Italy, the -establishment of a centralised political order in France on the -basis of social equality, the promulgation of the civil code, the -maintenance of the French system along the Rhine. His selfishness -gave a particular character to his pursuit of these ends, and (so far -as it did so) did so for evil. Finally it led him into a train of -action altogether mischievous. But at each stage of his career, if -we would understand what his particular agency really was, we must -take account of his ends in their full character, as determined by -influences with, which, his passion for glory no doubt co-operated, -but which, did not originate with it or with him, and in some measure -represented the struggle of mankind towards perfection. - -130. And not only must we thus correct our too abstract views of the -particular agency of such a man as Napoleon. If we would understand -the apparent results of his action, we must bear in mind how much -besides his particular agency has really gone to produce them, so far -as they were good; how much of unnoticed effort on the part of men -obscure because unselfish, how much of silent process in the general -heart of man. Napoleon was called the 'armed soldier of revolution,' -and it was in that character that he rendered what service he did -to men; but the revolution was not the making of him or his likes. -Caesar again we have learnt to regard as a benefactor of mankind, but -it was not Caesar that made the Roman law, through which chiefly or -solely the Roman empire became a blessing. The idiosyncrasy, then, -of the men who have been most conspicuous in the production of great -changes in the condition of mankind, though it has been an essential -element in their production, has been so only so far as it has been -overborne by influences and directed to ends, which were indeed not -external to the men in question--which on the contrary helped to make -them inwardly and spiritually what they really were--but which formed -no part of their distinguishing idiosyncrasy. If that idiosyncrasy -was conspicuously selfish, it was still not through their selfishness -that such men contributed to mould the institutions by which nations -have been civilised and developed, but through their fitness to act -as organs of impulses and ideas which had previously gained a hold on -some society of men, and for the realisation of which the means and -conditions had been preparing quite apart from the action of those -who became the most noticeable instruments of their realisation. - -131. The assertion, then, that an idea of social good is represented -by, or realised in, the formation of states, is not to be met by -pointing to the selfishness and bad passions of men who have been -instrumental in forming them, if there is reason to think that the -influences, under the direction of which these passions became thus -instrumental, are due to the action of such an idea. And when we -speak thus we do not refer to any action of the idea otherwise than -in the consciousness of men. It may be legitimate, as we have seen, -to consider ideas as existing and acting otherwise, and perhaps, -on thinking the matter out, we should find ourselves compelled to -regard the idea of social good as a communication to the human -consciousness, a consciousness developing itself in time, from an -eternally complete consciousness. But here we are considering it as -a source of the moral action of men, and therefore necessarily as -having its seat in their consciousness, and the proposition advanced -is that such an idea is a determining element in the consciousness of -the most selfish men who have been instrumental in the formation or -maintenance of states; that only through its influence in directing -and controlling their actions could they be so instrumental; and -that, though its active presence in their consciousness is due to the -institutions, the organisation of life, under which they are born -and bred, the existence of these institutions is in turn due to the -action, under other conditions, of the same idea in the minds of men. - -132. It is the necessity of a supreme coercive power to the existence -of a state that gives plausibility to the view that the action of -merely selfish passions may lead to the formation of states. They -have been motive causes, it would seem, in the processes by which -this 'imperium' has been established; as, e.g., the acquisition of -military power by a tribal chieftain, the conquest of one tribe -by another, the supersession of the independent prerogatives of -families by a tyrant which was the antecedent condition of the -formation of states in the ancient world, the supersession of feudal -prerogatives by the royal authority which served the same purpose in -modern Europe. It is not, however, supreme coercive power, simply -as such, but supreme coercive power exercised in a certain way and -for certain ends, that makes a state; viz. exercised according to -law, written or customary, and for the maintenance of rights. The -abstract consideration of sovereignty has led to these qualifications -being overlooked. Sovereignty = supreme coercive power, indeed, -but such power as exercised in and over a state, which means with -the qualifications specified; but the mischief of beginning with -an inquiry into sovereignty before the idea of a state has been -investigated, is that it leads us to adopt this abstract notion of -sovereignty, as merely supreme coercive power, and then, when we -come to think of the state as distinguished by sovereignty, makes -us suppose that supreme coercive power is all that is essential -to a state, forgetting that it is rather the state that makes the -sovereign, than the sovereign that makes the state. Supposing one -man had been master of all the slaves in one of the states of the -American Union, there would have been a multitude of men under one -supreme coercive power, but the slaves and the master would have -formed no state, because there would have been no recognised rights -of slave against slave enforced by the master, nor would dealings -between master and slaves have been regulated by any law. The fact -that sovereign power, as implied in the fact of its supremacy, -can alter any laws, is apt to make us overlook the necessity of -conformity to law on the part of the sovereign, if he is to be the -sovereign of a state. A power that altered laws otherwise than -according to law, according to a constitution, written or unwritten, -would be incompatible with the existence of a state, which is a body -of persons, recognised by each other as having rights, and possessing -certain institutions for the maintenance of those rights. The office -of the sovereign, as an institution of such a society, is to protect -those rights from invasion, either from without, from foreign -nations, or from within, from members of the society who cease to -behave as such. Its supremacy is the society's independence of such -attacks from without or within. It is an agency of the society, or -the society itself acting for this end. If the power, existing for -this end, is used on the whole otherwise than in conformity either -with a formal constitution or with customs which virtually serve the -purpose of a constitution, it is no longer an institution for the -maintenance of rights and ceases to be the agent of a state. We only -count Russia a state by a sort of courtesy on the supposition that -the power of the Czar, though subject to no constitutional control, -is so far exercised in accordance with a recognised tradition of what -the public good requires as to be on the whole a sustainer of rights. - -It is true that, just as in a state, all law being derived from the -sovereign, there is a sense in which the sovereign is not bound by -any law, so there is a sense in which all rights are derived from -the sovereign, and no power which the sovereign refuses to allow -can be a right; but it is only in the sense that, the sovereign -being the state acting in a certain capacity, and the state being -an institution for the more complete and harmonious maintenance of -the rights of its members, a power, claimed as a right, but which -the state or sovereign refuses to allow, cannot be really compatible -with the general system of rights. In other words, it is true only -on the supposition that a state is made a state by the functions -which it fulfils of maintaining the rights of its members as a -whole or a system, in such a way that none gains at the expense of -another (no one has any power guaranteed to him through another's -being deprived of that power). Thus the state, or the sovereign as -a characteristic institution of the state, does not create rights, -but gives fuller reality to rights already existing. It secures and -extends the exercise of powers, which men, influenced in dealing with -each other by an idea of common good, had recognised in each other -as being capable of direction to that common good, and had already -in a certain measure secured to each other in consequence of chat -recognition. It is not a state unless it does so. - -133. It may be said that this is an arbitrary restriction of the -term 'state.' If any other word, indeed, can be found to express -the same thing, by all means let it be used instead. But some word -is wanted for the purpose, because as a matter of fact societies of -men, already possessing rights, and whose dealings with each other -have been regulated by customs conformable to those rights, but not -existing in the form to which the term 'state' has just been applied -(i.e. not having a systematic law in which the rights recognised are -harmonised, and which is enforced by a power strong enough at once -to protect a society against disturbance within and aggression from -without), have come to take on that form. A word is needed to express -that form of society, both according to the idea of it which has -been operative in the minds of the members of the societies which -have undergone the change described (an idea only gradually taking -shape as the change proceeded), and according to the more explicit -and distinct idea of it which we form in reflecting on the process. -The word 'state' is the one naturally used for the purpose. The exact -degree to which the process must have been carried before the term -'state' can be applied to the people in which it has gone on, cannot -be precisely determined, but as a matter of fact we never apply it -except in cases where it has gone some way, and we are justified in -speaking of the state according to its idea as the society in which -it is completed. - -134. It is a mistake then to think of the state as an aggregation -of individuals under a sovereign; equally so whether we suppose the -individuals as such, or apart from what they derive from society, to -possess natural rights, or suppose them to depend on the sovereign -for the possession of rights. A state presupposes other forms of -community, with the rights that arise out of them, and only exists -as sustaining, securing, and completing them. In order to make a -state there must have been families of which the members recognised -rights in each other (recognised in each other powers capable of -direction by reference to a common good); there must further have -been intercourse between families, or between tribes that have grown -out of families, of which each in the same sense recognised rights -in the other. The recognition of a right being very short of its -definition, the admission of a right in each other by two parties, -whether individuals, families, or tribes, being very different from -agreement as to what the right consists in, what it is a right to do -or acquire, the rights recognised need definition and reconciliation -in a general law. When such a general law has been arrived at, -regulating the position of members of a family towards each other -and the dealings of families or tribes with each other; when it is -voluntarily recognised by a community of families or tribes, and -maintained by a power strong enough at once to enforce it within -the community and to defend the integrity of the community against -attacks from without, then the elementary state has been formed. - -135. That, however, is the beginning, not the end, of the state. -When once it has come into being, new rights arise in it (1) through -the claim for recognition on the part of families and tribes living -on the same territory with those which in community form the state, -but living at first in some relation of subjection to them. A common -humanity, of which language is the expression, necessarily leads to -the recognition of some good as common to these families with those -which form the state. This is in principle the recognition of rights -on their part; and the consequent embodiment of this recognition in -the laws of the state is their admission as members of it. (Instances -of this process are found in the states of Greece and the early -history of Rome.) (2) The same thing may happen in regard to external -communities ('external' territorially), whether these have been -already formed into states or no. It may happen through the conquest -of one by another, through their submission to a common conqueror, -as under the Roman empire, or through voluntary combination, as -with the Swiss cantons and the United States of America. However -the combination may arise, it results in new rights as between the -combined communities within the system of a single state. (3) The -extended intercourse between individuals, which the formation of the -state renders possible, leads to new complications in their dealings -with each other, and with it to new forms of right, especially in -regard to property; rights as far removed from any obvious foundation -on the _suum cuique_ principle as the right of a college to the great -tithes of a parish for which it does nothing. (4) The administration -of the state gives rise to rights, to the establishment of powers -necessary for its administration. (5) New situations of life may -arise out of the extended dealings of man with man which the state -renders possible (e.g. through the crowding of population in certain -localities) which make new modes of protecting the people a matter -virtually of right. And, as new rights arise in the state once -formed, so further purposes are served. It leads to a development and -moralisation of man beyond the stage which they must have reached -before it could be possible. - -136. On this I shall dwell more in my next course of lectures. What -I am now concerned to point out is that, however necessary a factor -force may have been in the process by which states have been formed -and transformed, it has only been such a factor as co-operating with -those ideas without which rights could not exist. I say 'could not -_exist_,' not 'could not be recognised,' because rights are made by -recognition. There is no right 'but thinking makes it so'; none that -is not derived from some idea that men have about each other. Nothing -is more real than a right, yet its existence is purely ideal, if by -'ideal' is meant that which is not dependent on anything material -but has its being solely in consciousness. It is to these ideal -realities that force is subordinate in the creation and development -of states. The force of conquest from without, the force exercised -within communities by such agents as the early Greek tyrants or the -royal suppressors of feudalism in modern Europe, has only contributed -to the formation of states in so far as its effects have taken -a character which did not belong to them as effects of force; a -character due to their operation in a moral world, in which rights -already existed, resting on the recognition by men of each other as -determined, or capable of being determined, by the conception of a -common good. It is not indeed true that only a state can produce a -state, though modern history might seem to favour that notion. As a -matter of fact, the formation of modern states through feudalism out -of an earlier tribal system has been dependent on ideas derived from -the Roman state, if not on institutions actually handed down from it; -and the improvement and development of the state-system which has -taken place since the French Revolution has been through agencies -which all presuppose and are determined by the previous existence -of states. But the Greek states, so far as we know, were a first -institution of the kind, not a result of propagation from previously -existing states. But the action which brought them into being was -only effectual for its purpose, because the idea of right, though -only in the form of family or tribal right, was already in operation. - - H. _HAS THE CITIZEN RIGHTS AGAINST THE STATE?_ - -137. I propose to pursue the inquiry, begun in my last course, -into the nature and functions of the state. In the last course we -were chiefly occupied with criticism. We have seen that no true -conception of the rights of individuals against each other or against -the state, or of the rights of the state over individuals, can be -arrived at, while we look upon the state merely as an aggregation -of individuals under a sovereign power that is able to compel their -obedience, and consider this power of compelling a general obedience -to be the characteristic thing in a state. So long as this view is -retained, no satisfactory answer can be given to the question, by -what right the sovereign compels the obedience of individuals. It can -only be met either by some device for representing the individuals -as so consenting to the exercise of sovereign power over them that -it is no violation of their individual rights, or by representing -the rights of individuals as derived from the sovereign and thus -as having no existence against it. But it is obviously very often -against the will of individuals that the sovereign power is exercised -over them; indeed if it were not so, its characteristic as a power -of compulsion would be lost; it would not be a sovereign power; and -the fact that the majority of a given multitude may consent to its -exercise over an unconsenting minority, is no justification for its -exercise over that minority, if its justification is founded on -consent; the representation that the minority virtually consent to be -bound by the will of the majority being an obvious fiction. On the -other hand, the theory that all right is derived from a sovereign, -that it is a power of which the sovereign secures the exercise to -the individual, and that therefore there can be no right against the -sovereign, conflicts with the primary demands of human consciousness. -It implies the identification of 'I ought' with 'I am forced to.' -Reducing the 'right' of the sovereign simply to a power, it makes -it unintelligible that this power should yet represent itself as a -right, and claim obedience to itself as such. No such theory indeed -admits of consistent statement. To say (with Hobbes) that a law may -be inequitable or pernicious, though it cannot be unjust, is to admit -a criticism of laws, a distinction between those enactments of the -sovereign which are what they should be and those which are not. And -this is to recognise the individual's demand for a justification of -the laws which he obeys; to admit in effect that there is some rule -of right, of which the individual is conscious, and to which law -ought to conform. - -138. It is equally impossible, then, to hold that the right of the -sovereign power in a state over its members is dependent on their -consent, and, on the other hand, that these members have no rights -except such as are constituted and conferred upon them by the -sovereign. The sovereign, and the state itself as distinguished by -the existence of a sovereign power, presupposes rights and is an -institution for their maintenance. But these rights do not belong to -individuals as they might be in a state of nature, or as they might -be if each acted irrespectively of the others. They belong to them -as members of a society in which each recognises the other as an -originator of action in the same sense in which he is conscious of -being so himself (as an 'ego,' as himself the object which determines -the action), and thus regards the free exercise of his own powers as -dependent upon his allowing an equally free exercise of his powers -to every other member of the society. There is no harm in saying -that they belong to individuals as such, if we understand what -we mean by 'individual,' and if we mean by it a self-determining -subject, conscious of itself as one among other such subjects, and -of its relation to them as making it what it is; for then there is -no opposition between the attachment of rights to the individuals -as such and their derivation from society. They attach to the -individual, but only as a member of a society of free agents, as -recognising himself and recognised by others to be such a member, as -doing and done by accordingly. A right, then, to act unsocially,--to -act otherwise than as belonging to a society of which each member -keeps the exercise of his powers within the limits necessary to the -like exercise by all the other members,--is a contradiction. No one -can say that, unless he has consented to such a limitation of his -powers, he has a right to resist it. The fact of his not consenting -would be an extinction of all right on his part. - -139. The state then presupposes rights, and rights of individuals. It -is a form which society takes in order to maintain them. But rights -have no being except in a society of men recognising each other as -ἴσοι καὶ ὅμοιοι. [1] They are constituted by that mutual recognition. -In analysing the nature of any right, we may conveniently look at -it on two sides, and consider it as on the one hand a claim of the -individual, arising out of his rational nature, to the free exercise -of some faculty; on the other, as a concession of that claim by -society, a power given by it to the individual of putting the claim -in force. But we must be on our guard against supposing that these -distinguishable sides have any really separate existence. It is only -a man's consciousness of having an object in common with others, a -well-being which is consciously his in being theirs and theirs in -being his,--only the fact that they are recognised by him and he by -them as having this object,--that gives him the claim described. -There can be no reciprocal claim on the part of a man and an animal -each to exercise his powers unimpeded by the other, because there is -no consciousness common to them. But a claim founded on such a common -consciousness is already a claim conceded; already a claim to which -reality is given by social recognition, and thus implicitly a right. - -[1] [Greek ἴσοι καὶ ὅμοιοι (isoi kai homoioi) = equals and alike, -plural Tr] - -140. It is in this sense that a slave has 'natural rights' They are -'natural' in the sense of being independent of, and in conflict with, -the laws of the state in which he lives, but they are not independent -of social relations. They arise out of the fact that there is a -consciousness of objects common to the slave with those among whom -he lives,--whether other slaves or the family of his owner,--and -that this consciousness constitutes at once a claim on the part of -each of those who share it to exercise a free activity conditionally -upon his allowing a like activity in the others, and a recognition -of this claim by the others through which it is realised. The slave -thus derives from his social relations a real right which the law of -the state refuses to admit. The law cannot prevent him from acting -and being treated, within certain limits, as a member of a society of -persons freely seeking a common good. Now that capability of living -in a certain limited community with a certain limited number of -human beings, which the slave cannot be prevented from exhibiting, -is in principle a capability of living in community with any other -human beings, supposing the necessary training to be allowed; and as -every such capability constitutes a right, we are entitled to say -that the slave has a right to citizenship, to a recognised equality -of freedom with any and every one with whom he has to do, and that -in refusing him not only citizenship but the means of training his -capability of citizenship, the state is violating a right founded on -that common human consciousness which is evinced both by the language -which the slave speaks, and by actual social relations subsisting -between him and others. And on the same principle upon which a state -is violating natural rights in maintaining slavery, it does the same -in using force, except under the necessity of self-defence, against -members of another community. Membership of any community is so -far, in principle, membership of all communities as to constitute a -right to be treated as a freeman by all other men, to be exempt from -subjection to force except for prevention of force. - -141. A man may thus have rights as a member of a family or of human -society in any other form, without being a member of a state at -all,--rights which remain rights though any particular state or all -states refuse to recognise them; and a member of a state, on the -ground of that capability of living as a freeman among freemen which -is implied in his being a member of a state, has rights as against -all other states and their members. These latter rights are in fact -during peace recognised by all civilised states. It is the object of -'private international law' to reduce them to a system. But though -it follows from this that the state does not create rights, it may -be still true to say that the members of a state derive their rights -from the state and have no rights against it. We have already seen -that a right against society, as such, is an impossibility; that -every right is derived from some social relation: that a right -against any group of associated men depends on association, as -ἴσος καὶ ὅμοιος [1], with them and with some other men. Now for -the member of a state to say that his rights are derived from his -social relations, and to say that they are derived from his position -as member of a state, are the same thing. The state is for him the -complex of those social relations out of which rights arise, so far -as those rights have come to be regulated and harmonised according to -a general law, which is recognised by a certain multitude of persons, -and which there is sufficient power to secure against violation from -without and from within. The other forms of community which precede -and are independent of the formation of the state, do not continue -to exist outside it, nor yet are they superseded by it. They are -carried on into it. They become its organic members, supporting its -life and in turn maintained by it in a new harmony with each other. -Thus the citizen's rights, e.g. as a husband or head of a family or a -holder of property, though such rights, arising out of other social -relations than that of citizen to citizen, existed when as yet there -was no state, are yet to the citizen derived from the state, from -that more highly developed form of society in which the association -of the family and that of possessors who respect each other's -possessions are included as in a fuller whole; which secures to the -citizen his family rights and his rights as a holder of property, but -under conditions and limitations which the membership of the fuller -whole--the reconciliation of rights arising out of one sort of social -capability with those arising out of another--renders necessary. Nor -can the citizen have any right against the state, in the sense of a -right to act otherwise than as a member of some society, the state -being for its members the society of societies, the society in which -all their claims upon each other are mutually adjusted. - -[1] [Greek ἴσος καὶ ὅμοιος (isos kai homoios) = equal and alike, -singular Tr.] - -142. But what exactly is meant by the citizen's acting 'as a member -of his state'? What does the assertion that he can have no right -to act otherwise than as a member of his state amount to? Does it -mean that he has no right to disobey the law of the state to which -he belongs, whatever that law may be? that he is not entitled to -exercise his power in any way that the law forbids and to refuse -to exercise them in any way that it commands? This question was -virtually dealt with before [1] in considering the justifiability of -resistance to an ostensible sovereign. The only unqualified answer -that can be given to it is one that may seem too general to be of -much practical use, viz. that so far as the laws anywhere or at any -time in force fulfil the idea of a state, there can be no right to -disobey them; or, that there can be no right to disobey the law of -the state except in the interest of the state; i.e. for the purpose -of making the state in respect of its actual laws more completely -correspond to what it is in tendency or idea, viz. the reconciler -and sustainer of the rights that arise out of the social relations -of men. On this principle there can be no right to disobey or evade -any particular law on the ground that it interferes with any freedom -of action, any right of managing his children or 'doing what he -will with his own,' which but for that law the individual would -possess. Any power which has been allowed to the individual up to a -certain time, he is apt to regard as permanently his right. It has, -indeed, been so far his right, if the exercise of that power has been -allowed with any reference to social good, but it does not, as he -is apt to think, remain his right when a law has been enacted that -interferes with it. A man e.g. has been allowed to drive at any pace -he likes through the streets, to build houses without any reference -to sanitary conditions, to keep his children at home or send them to -work 'analphabetic,' to buy or sell alcoholic drinks at his pleasure. -If laws are passed interfering with any or all of these powers, -he says that his rights are being violated. But he only possessed -these powers as rights through membership of a society which secured -them to him, and of which the only permanent bond consists in the -reference to the well-being of its members as a whole. It has been -the social recognition grounded on that reference that has rendered -certain of his powers rights. If upon new conditions arising, or -upon elements of social good being taken account of which had been -overlooked before, or upon persons being taken into the reckoning as -capable of participation in the social well-being who had previously -been treated merely as means to its attainment,--if in any of these -ways or otherwise the reference to social well-being suggest the -necessity of some further regulation of the individual's liberty to -do as he pleases, he can plead no right against this regulation, -for every right that he has possessed has been dependent on that -social judgment of its compatibility with general well-being which in -respect to the liberties in question is now reversed. - -[1] [Above, sections 100, 101. RLN] - -143. 'Is then,' it may be asked, 'the general judgment as to the -requirements of social well-being so absolutely authoritative that -no individual right can exist against it? What if according to this -judgment the institution of slavery is so necessary that citizens are -prohibited by law from teaching slaves to read and from harbouring -runaways? or if according to it the maintenance of a certain form -of worship is so necessary that no other worship can be allowed -and no opinion expressed antagonistic to it? Has the individual no -rights against enactments founded on such accepted views of social -well-being?' We may answer: A right against society as such, a right -to act without reference to the needs or good of society, is an -impossibility, since every right depends on some social relation, and -a right against any group of associated men depends upon association -on some footing of equality with them or with some other men. We -saw how the right of the slave really rested on this basis, on a -social capacity shown in the footing on which he actually lives -with other men. On this principle it would follow, if we regard the -state as the sustainer and harmoniser of social relations, that the -individual can have no right against the state; that its law must be -to him of absolute authority. But in fact, as actual states at best -fulfil but partially their ideal function, we cannot apply this rule -to practice. The general principle that the citizen must never act -otherwise than as a citizen, does not carry with it an obligation -under all conditions to conform to the law of his state, since those -laws may be inconsistent with the true end of the state as the -sustainer and harmoniser of social relations. The assertion, however, -by the citizen of any right which the state does not recognise must -be founded on a reference to an acknowledged social good. The fact -that the individual would like to exercise the power claimed as a -right does not render the exercise of it a right, nor does the fact -that he has been hitherto allowed to exercise it render it a right, -if social requirements have arisen under changed conditions, or have -newly come to be recognised, with which its exercise is incompatible. -The reason that the assertion of an illegal right must be founded on -reference to acknowledged social good is that, as we have seen, no -exercise of a power, however abstractedly desirable for the promotion -of human good it might be, can be claimed as a right unless there is -some common consciousness of utility shared by the person making the -claim and those on whom it is made. It is not a question whether or -no it ought to be claimed as a right; it simply cannot be claimed -except on this condition. It would have been impossible, e.g., in -an ancient state, where the symbol of social union was some local -worship, for a monotheistic reformer to claim a right to attempt the -subversion of that worship. If a duty to do so had suggested itself, -consciousness of the duty could never have expressed itself in the -form of a claim of right, in the absence of any possible sense of -a public interest in the religious revolution to which the claim -could be addressed. Thus, just as it is not the exercise of every -power, properly claimable as a right, that is a right in the full -or explicit sense of being legally established, so it is not every -power, of which the exercise would be desirable in an ideal state -of things, that is properly claimable as a right. The condition of -its being so claimable is that its exercise should be contributory -to some social good which the public conscience is capable of -appreciating, not necessarily one which in the existing prevalence -of private interests can obtain due acknowledgment, but still one of -which men in their actions and language show themselves to be aware. - -144. Thus to the question, Has the individual no rights against -enactments founded on imperfect views of social well-being? we may -answer, He has no rights against them founded on any right to do -as he likes. Whatever counter-rights he has must be founded on a -relation to the social well-being, and that a relation of which his -fellow -citizens are aware. He must be able to point to some public -interest, generally recognised as such, which is involved in the -exercise of the power claimed by him as a right; to show that it is -not the general well-being, even as conceived by his fellow-citizens, -but some special interest of a class that is concerned in preventing -the exercise of the power claimed. In regard to the right of teaching -or harbouring the slave, he must appeal to the actual capacity of the -slave for community with other men as evinced in the manner described -above, to the recognition of this capacity as shown by the actual -behaviour of the citizens in many respects towards the slave, to -the addition to social well-being that results from the realisation -of this capacity in all who possess it through rights being legally -guaranteed to them. In this way he must show that the reference to -social well-being, on which is founded the recognition of powers as -rights, if fairly and thoroughly carried out, leads to the exercise -of powers in favour of the slave, in the manner described, not to -the prohibition of that exercise as the supposed law prohibits it. -The response which in doing so he elicits from the conscience of -fellow-citizens shows that in talking of the slave as 'a man and a -brother,' he is exercising what is implicitly his right, though it is -a right which has not become explicit through legal enactments. This -response supplies the factor of social recognition which, as we have -seen, is necessary in order to render the exercise of any power a -right. To have an implicit right, however, to exercise a power which -the law disallows is not the same thing as having a right to exercise -that right. The right may be claimed without the power being actually -exercised so long as the law prohibits its exercise. The question, -therefore, would arise whether the citizen was doing his duty as -such--acting as a member of the state--if he not merely did what he -could for the repeal of the law prohibiting the instruction of a -slave or the assistance of runaways, but himself in defiance of the -law instructed and assisted them. As a general rule, no doubt, even -bad laws, laws representing the interests of classes or individuals -as opposed to those of the community, should be obeyed. There can -be no right to disobey them, even while their repeal is urged on -the ground that they violate rights, because the public interest, -on which all rights are founded, is more concerned in the general -obedience to law than in the exercise of those powers by individuals -or classes which the objectionable laws unfairly withhold. The -maintenance of a duty prohibiting the import of certain articles in -the interest of certain manufacturers would be no justification for -smuggling these articles. The smuggler acts for his private gain, -as does the man who buys of him; and no violation of the law for -the private gain of the violator, however unfair the law violated, -can justify itself by reference to a recognised public good, or -consequently be vindicated as a right. On the other hand, there may -be cases in which the public interest--not merely according to some -remote philosopher's view of it, but according to conceptions which -the people are able to assimilate--is best served by a violation -of some actual law. It is so in regard to slavery when the public -conscience has come to recognise a capacity for right (for exercising -powers under the control of a reference to general well-being) in a -body of men to whom legal rights have hitherto been refused, but when -some powerful class in its own interest resists the alteration of the -law. In such a case the violation of the law on behalf of the slave -is not only not a violation in the interest of the violator; the -general sense of right on which the general observance of law depends -being represented by it, there is no danger of its making a breach in -the law-abiding habits of the people. - -145. 'But this,' it will be said, 'is to assume a condition of things -in which the real difficulty of the question disappears. What is to -be done when no recognition of the implicit rights of the slave can -be elicited from the public conscience; when the legal prohibitions -described are supported by the only conceptions of general good of -which the body of citizens is capable? Has the citizen still a right -to disregard these legal prohibitions? Is the assertion of such a -right compatible with the doctrine that social recognition of any -mode of action as contributory to the common good is necessary to -constitute a right so to act, and that no member of a state can -have a right to act otherwise than according to that position?' The -question, be it observed, is not as to the right of the slave, but -as to the right of the citizen to treat the slave as having rights -in a state of which the law forbids his being so treated. The claim -of the slave to be free, his right implicit to have rights explicit, -i.e. to membership of a society of which each member is treated by -the rest as entitled to seek his own good in his own way, on the -supposition that he so seeks it as not to interfere with the like -freedom of quest on the part of others, rests, as we have seen, on -the fact that the slave is determined by conceptions of a good common -to himself with others, as shown by the actual social relations in -which he lives. No state-law can neutralise this right. The state -may refuse him family rights and rights of property, but it cannot -help his living as a member of a family, acting and being treated as -a father, husband, son, or brother, and therefore cannot extinguish -the rights which are necessarily involved in his so acting and being -so treated. Nor can it prevent him from appropriating things and from -associating with others on the understanding that they respect each -other's appropriations, and thus possessing and exercising rights of -property. He has thus rights which the state neither gives nor can -take away, and they amount to or constitute a right to freedom in -the sense explained. The state, under which the slave is a slave, -refusing to recognise this right, he is not limited in its exercise -by membership of the state. He has a right to assert his right to -such membership in any way compatible with that susceptibility to -the claims of human fellowship on which the right rests. Other men -have claims upon him, conditioning his rights, but the state, as -such, which refuses to recognise his rights, has no claim on him. The -obligation to observe the law, because it is the law, does not exist -for him. - -146. It is otherwise with the citizen. The slave has a claim upon him -to be treated in a certain way, the claim which is properly described -as that of a common humanity. But the state which forbids him so to -treat the slave has also a claim upon him, a claim which embodies -many of the claims that arise out of a common humanity in a form -that reconciles them with each other. Now it may be argued that the -claim of the state is only absolutely paramount on the supposition -that in its commands and prohibitions it takes account of all the -claims that arise out of human fellowship; that its authority over -the individual is in principle the authority of those claims, taken -as a whole; that if, as in the case supposed, its ordinances conflict -with those claims as possessed by a certain class of persons, their -authority, which is essentially a conditional or derived authority, -disappears; that a disregard of them in the interest of the claims -which they disregard is really conformity to the requirements of -the state according to its true end or idea, since it interferes -with none of the claims or interests which the state has its value -in maintaining or protecting, but, on the contrary, forces on -the attention of members of the state claims which they hitherto -disregarded; and that if the conscience of the citizens is so far -mastered by the special private interests which the institution of -slavery breeds that it cannot be brought to recognise action on the -slave's behalf as contributory to a common good, yet there is no -ground under such conditions for considering a man's fellow-citizens -to be the sole organs of the recognition which is needed to render -his power of action a right; that the needful recognition is at any -rate forthcoming from the slave, and from all those acquainted with -the action in whom the idea of a good common to each man with others -operates freely. - -147. This may be truly urged, but it does not therefore follow that -the duty of befriending the slave is necessarily paramount to the -duty of obeying the law which forbids his being befriended: and if it -is possible for the latter duty to be paramount, it will follow, on -the principle that there is no right to violate a duty, that under -certain conditions the right of helping the slave may be cancelled -by the duty of obeying the prohibitory law. It would be so if the -violation of law in the interest of the slave were liable to result -in general anarchy, not merely in the sense of the dissolution of -this or that form of civil combination, but of the disappearance of -the conditions under which any civil combination is possible; for -such a destruction of the state would mean a general loss of freedom, -a general substitution of force for mutual good-will in men's -dealings with each other, that would outweigh the evil of any slavery -under such limitations and regulations as an organised state imposes -on it. - - I. _PRIVATE RIGHTS._ _THE RIGHT TO LIFE AND LIBERTY._ - -148. Returning from this digression, we resume our consideration of -the nature and functions of the state. In order to understand this -nature, we must understand the nature of those rights which do not -come into being with the state, but arise out of social relations -that may exist where a state is not; it being the first though -not the only office of the state to maintain those rights. They -depend for their existence, indeed, on society, a society of men -who recognise each other as ἴσοι καὶ ὅμοιοι, as capable of a common -well-being, but not on society's having assumed the form of a state. -They may therefore be treated as claims of the individual without -reference to the form of the society which concedes or recognises -them, and on whose recognition, as we have seen, their nature as -rights depends. Only it must be borne in mind that the form in which -these claims are admitted and acted on by men in their dealings with -each other varies with the form of society; that the actual form, -e.g., in which the individual's right of property is admitted under -a patriarchal _régime_ is very different from that in which it is -admitted in a state; and that though the principle of each right is -throughout the same, it is a principle which only comes to be fully -recognised and acted on when the state has not only been formed, but -fully developed according to its idea. - -149. The rights which may be treated as independent of the state -in the sense explained are of course those which are commonly -distinguished as _private_, in opposition to _public_ rights. 'If -rights be analysed, they will be found to consist of several kinds. -For, first, they are such as regard a man's own person; secondly, -such as regard his dominion over the external and sensible things by -which he is surrounded; thirdly, such as regard his private relations -as a member of a family; fourthly, such as regard his social state or -condition as a member of the community: the first of which classes -may be designated as _personal rights_; the second, as _rights of -property_; the third, as _rights in private relations_; and the -fourth, as _public rights_.' (Stephen, _Comm_., I, p. 136.) - -150. An objection might fairly be made to distinguishing one class -of rights as 'personal,' on the ground that all rights are so; -not merely in the legal sense of 'person' according to which the -proposition is a truism, since every right implies a person as its -subject, but in the moral sense, since all rights depend on that -capacity in the individual for being determined by a conception of -well-being, as an object at once for himself and for others, which -constitutes personality in the moral sense. By personal rights in the -above classification are meant rights of life and liberty, i.e. of -preserving one's body from the violence of other men, and of using -it as an instrument only of one's own will; if of another's, still -only through one's own. The reason why these come to be spoken of -as 'personal' is probably the same with the reason why we talk of a -man's 'person' in the sense simply of his body. They may, however, -be reckoned in a special sense personal even by those who consider -all rights personal, because the person's possession of a body and -its exclusive determination by his own will is the condition of -his exercising any other rights,--indeed, of all manifestation of -personality. Prevent a man from possessing property (in the ordinary -sense), and his personality may still remain. Prevent him (if it were -possible) from using his body to express a will, and the will itself -could not become a reality; he would not be really a person. - -151. If there are such things as rights at all, then, there must be a -right to life and liberty, or, to put it more properly, to free life. -No distinction can be made between the right to life and the right -to liberty, for there can be no right to mere life, no right to life -on the part of a being that has not also the right to use the life -according to the motions of its own will. What is the foundation of -this right? The answer is, capacity on the part of the subject for -membership of a society, for determination of the will, and through -it of the bodily organisation, by the conception of a well-being -as common to self with others. This capacity is the foundation of -the right, or the right potentially, which becomes actual through -the recognition of the capacity by a society, and through the power -which the society in consequence secures to the individual of acting -according to the capacity. In principle, or intrinsically, or in -respect of that which it has it in itself to become, the right is -one that belongs to every man in virtue of his human nature (of the -qualities that render him capable of any fellowship with any other -men), and is a right as between him and any other men; because, as -we have seen, the qualities which enable him to act as a member of -any one society having the general well-being of its members for its -object (as distinct from any special object requiring special talent -for its accomplishment) form a capacity for membership of any other -such society; but actually, or as recognised, it only gradually -becomes a right of a man, as man, and against all men. - -152. At first it is only a right of the man as a member of some one -particular society, and a right as between him and the other members -of that society, the society being naturally a family or tribe. -Then, as several such societies come to recognise, in some limited -way, a common well-being, and thus to associate on settled terms, -it comes to be a right not merely between the members of any one of -the societies, but between members of the several families or tribes -in their dealings with each other, not, however, as men, but only -as belonging to this or that particular family. This is the state -of things in which, if one man is damaged or killed, compensation -is made according to the terms of some customary law by the family -or tribe of the offender to that of the man damaged or killed, the -compensation varying according to the rank of the family. Upon -this system, generally through some fusion of family demarcations -and privileges, whether through pressure upward of a population -hitherto inferior, or through a levelling effected by some external -power, there supervenes one in which the relation between citizen -and citizen, as such, is substituted for that between family and -family as such. This substitution is one of the essential processes -in the formation of the state. It is compatible, however, with the -closest limitation of the privileges of citizenship, and implies -no acknowledgment in man as man of the right to free life ascribed -to the citizen as citizen. In the ancient world the companion -of citizenship is everywhere slavery, and it was only actual -citizenship, not any such capacity for becoming a citizen as might -naturally be held to be implied in civil birth, that was considered -to give a right to live; for the exposure of children was everywhere -practised [1] (and with the approval of the philosophers), a practice -in strong contrast with the principle of modern law that even a child -in the womb has a right to live. - -[1] Tacitus speaks of it as a peculiarity of the Jews and Germans -that they did not allow the killing of younger children (_Hist_., -V, 5; _Germ_. 19). Aristotle (Pol. 1335, b, 19) enjoins that μηδὲν -πεπηρωμένον shall be brought up, but seems to condemn exposure, -preferring that the required limit of population should be preserved -by destruction of the embryo, on the principle that τὸ ὅσιον καὶ τὸ -μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται Plato's rule is the same -as regards the defective children and the procuring abortion, but he -leaves it in the dark whether he meant any healthy children, actually -born, to be put out of the way (_Rep_. 460 C. and 461 C.). - -[Greek μηδὲν πεπηρωμένον (meden peperomenon) = no deformed [child], -τὸ ὅσιον καὶ τὸ μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται (to -hosion kai to me diorismenon te aisthesei kai to zen estai) = what -may lawfully be done in such cases [of children not deformed] depends -on the question of sensation and life Tr] - -153. The influences commonly pointed out as instrumental in -bringing about the recognition of rights in the man, as independent -of particular citizenship, are these: (1) The adjudication by -Roman praetors of questions at issue between citizens and those -who were not so, which led to the formation of the system of -'equity,' independent of the old civil law and tending gradually -to be substituted for it. The existence of such a system, however, -presupposes the recognition of rights so far independent of -citizenship in a particular state as to obtain between citizens of -different states. (2) The doctrine of a 'law of nature' applicable -to dealings of all men, popularised by the Stoics. (3) The Christian -conception of the universal redemption of a brotherhood, of which all -could become members through a mental act within the power of all. - -154. The admission of a right to free life on the part of every man, -as man, does in fact logically imply the conception of all men as -forming one society in which each individual has some service to -render, one organism in which each has a function to fulfil. There -can be no claim on society such as constitutes a right, except in -respect of a capacity freely (i.e. under determination by conception -of the good) to contribute to its good. If the claim is made on -behalf of any and every human being, it must be a claim on human -society as a whole, and there must be a possible common good of -human society as a whole, conceivable as independent of the special -conditions of particular societies, to render such a claim possible. -We often find, however, that men assimilate a practical idea in -respect of one of its implications without doing so in respect of -the rest. Thus the idea of the individual's right to free life has -been strongly laid hold of in Christendom in what may be called an -abstract or negative way, but little notice has been taken of what -it involves. Slavery is everywhere condemned. It is established that -no one has a right to prevent the individual from determining the -conditions of his own life. We treat life as sacred even in the human -embryo, and even in hopeless idiots and lunatics recognise a right to -live, a recognition which can only be rationally explained on either -or both of two grounds: (1) that we do not consider either their -lives, or the society which a man may freely serve, to be limited to -this earth, and thus ascribe to them a right to live on the strength -of a social capacity which under other conditions may become what -it is not here; or (2) that the distinction between curable and -incurable, between complete and incomplete, social incapacity is so -indefinite that we cannot in any case safely assume it to be such as -to extinguish the right to live. Or perhaps it may be argued that -even in cases where the incapacity is ascertainably incurable, the -patient has still a social function (as undoubtedly those who are -incurably ill in other ways have), a passive function as the object -of affectionate ministrations arising out of family instincts and -memories; and that the right to have life protected corresponds to -this passive social function. The fact, however, that we have almost -to cast about in certain cases for an explanation of the established -belief in the sacredness of human life, shows how deeply rooted that -belief is unless where some counter-belief interferes with it. - -155. On the other hand, it is equally noticeable that there are -counter-beliefs which, under conditions, do neutralise it, and that -certain other beliefs, which form its proper complement, have very -slight hold on the mind of modern Christendom. It is taken for -granted that the exigencies of the state in war, whether the war be -necessary or not for saving the state from dissolution, absolutely -neutralise the right to live. We are little influenced by the idea of -the universal brotherhood of men, of mankind as forming one society -with a common good, of which the conception may determine the action -of its members. In international dealings we are apt to suppose that -it can have no place at all. Yet, as has been pointed out, it is -the proper correlative of the admission of a right to free life as -belonging to man in virtue simply of his human nature. And though -this right can only be grounded on the capacity, which belongs to -the human nature, for freely fulfilling some function in the social -organism, we do very little to give reality to the capacity or to -enable it to realise itself. We content ourselves with enacting that -no man shall be used by other men as a means against his will, but we -leave it to be pretty much a matter of chance whether or no he shall -be qualified to fulfil any social function, to contribute anything to -the common good, and to do so freely (i.e. under the conception of a -common good). The only reason why a man should not be used by other -men simply as a means to their ends, is that he should use himself -as a means to an end which is really his and theirs at once. But -while we say that he shall not be used as a means, we often leave him -without the chance of using himself for any social end at all. - -156. Four questions then arise: (1) With what right do the -necessities of war override the individual's right of life? (2) In -what relation do the rights of states to act for their own interest -stand to that right of human society, as such, of which the existence -is implied in the possession of right by the individual as a member -of that society, irrespectively of the laws of particular states? -(3) On what principle is it to be assumed that the individual by a -certain conduct of his own forfeits the right of free life, so that -the state (at any rate for a time) is entitled to subject him to -force; to treat him as an animal or a thing? Is this forfeiture ever -so absolute and final that the state is justified in taking away his -life? (4) What is the nature and extent of the individual's claim -to be enabled to realise that capacity for contributing to a social -good, which is the foundation of his right to free life? - - K. _THE RIGHT OF THE STATE OVER THE INDIVIDUAL IN WAR._ - -157. (1) It may be admitted that to describe war as 'multitudinous -murder' is a figure of speech. The essence of murder does not lie -in the fact that one man takes away the life of another, but that -he does this to 'gain his private ends' and with 'malice' against -the person killed. I am not here speaking of the legal definition -of murder, but of murder as a term of moral reprobation, in which -sense it must be used by those who speak of war as 'multitudinous -murder.' They cannot mean murder in the legal sense, because in -that sense only 'unlawful killing,' which killing in war is not, is -murder. When I speak of 'malice,' therefore, I am not using 'malice' -in the legal sense. In that sense 'malice' is understood to be the -attribute of every 'wrongful act done intentionally without just -or lawful excuse,' [1] and is ascribed to acts (such as killing an -officer of justice, knowing him to be such, while resisting him in a -riot) in which there is no ill-will of the kind which we suppose in -murder, when we apply the term in its natural sense as one of moral -disapprobation. Of murder in the moral sense the characteristics are -those stated, and these are not present in the case of a soldier who -kills one on the other side in battle. He has no ill-will to that -particular person or to any particular person. He incurs an equal -risk with the person whom he kills, and incurs that risk not for -the sake of killing him. His object in undergoing it is not private -to himself, but a service (or what he supposes to be a service) to -his country, a good which is his own no doubt (that is implied in -his desiring it), but which he presents to himself as common to him -with others. Indeed, those who might speak of war as 'multitudinous -murder' would not look upon the soldier as a murderer. If reminded -that there cannot be a murder without a murderer, and pressed to say -who, when a bloody battle takes place, the murderer or murderers -are, they would probably point to the authors of the war. It may be -questioned, by the way, whether there has ever been a war of which -the origination could be truly said to rest with a definite person -or persons, in the same way in which the origination of an act which -would be called murder in the ordinary sense rests with a particular -person. No doubt there have been wars for which certain assignable -individuals were specially blameable, wars which they specially -helped to bring about or had special means of preventing (and the -more the wickedness of such persons is kept in mind the better); but -even in these cases the cause of the war can scarcely be held to be -gathered up within the will of any individual, or the combined will -of certain individuals, in the same way as is the cause of murder or -other punishable acts. When A.B. is murdered, the sole cause lies in -some definite volition of CD. or others, however that volition may -have been caused. But when a war 'breaks out,' though it is not to -be considered, as we are too apt to consider it, a natural calamity -which could not be prevented, it would be hard to maintain that -the sole cause lies in some definite volition on the part of some -assignable person or persons, even of those who are most to blame. -Passing over this point, however, if the acts of killing in war are -not murders (in the _moral_ sense, the _legal_ being out of the -question) because they lack those characteristics on the part of the -agent's state of mind which are necessary to constitute a murder, -the persons who cause those acts to be committed, if such persons -can be pointed out, are not the authors of murder, multitudinous -or other. They would only be so if the characteristic of 'malice,' -which is absent on the part of the immediate agent of the act, were -present on their part as its ultimate agents. But this is not the -case. However selfish their motives, they cannot fairly be construed -into ill-will towards the persons who happened to be killed in the -war; and therefore, whatever wickedness the persons responsible for -the war are guilty of, they are not guilty of 'murder' in any natural -sense of the term, nor is there any murder in the case at all. - -[1] Markby, _Elements of Law_, sec. 226. - -158. It does not follow from this, however, that war is ever other -than a great wrong, as a violation on a multitudinous scale of the -individual's right to life. Whether it is so or not must be discussed -on other grounds. If there is such a thing as a right to life on the -part of the individual man as such, is there any reason to doubt that -this right is violated in the case of every man killed in war? It is -not to the purpose to allege that in order to a violation of right -there must be not only a suffering of some kind on the part of the -subject of a right, but an intentional act causing it on the part of -a human agent. There is of course no violation of right when a man -is killed by a wild beast or a stroke of lightning, because there is -no right as between a man and a beast or between a man and a natural -force. But the deaths in a battle are caused distinctly by human -agency and intentional agency. The individual soldier may not have -any very distinct intention when he fires his rifle except to obey -orders, but the commanders of the army and the statesmen who send it -into the field intend the death of as many men as may be necessary -for their purpose. It is true they do not intend the death of this or -that particular person, but no more did the Irishman who fired into -a body of police guarding the Fenian prisoners. It might fairly be -held that this circumstance exempted the Irishman from the special -moral guilt of murder, though according to our law it did not exempt -him from the legal guilt expressed by that term; but no one would -argue that it made the act other than a violation of the right to -life on the part of the policeman killed. No more can the absence -of an intention to kill this or that specific person on the part of -those who cause men to be killed in battle save their act from being -a violation of the right to life. - -159. Is there then any condition on the part of the persons killed -that saves the act from having this character? It may be urged that -when the war is conducted according to usages that obtain between -civilised nations, (not when it is a village-burning war like that -between the English and Afghans), the persons killed are voluntary -combatants, and οὐδεὶς ἀδικεῖται ἑκών [1]. Soldiers, it may be said, -are in the position of men who voluntarily undertake a dangerous -employment. If some of them are killed, this is not more a violation -of the human right to life than is the death of men who have engaged -to work in a dangerous coal-pit. To this it must be answered that -if soldiers did in fact voluntarily incur the special risk of death -incidental to their calling, it would not follow that the right to -life was not violated in their being--killed. It is not a right -which it rests with a man to retain or give up at his pleasure. It -is not the less a wrong that a man should be a slave because he has -sold himself into slavery. The individual's right to live is but -the other side of the right which society has in his living. The -individual can no more voluntarily rid himself of it than he can of -the social capacity, the human nature, on which it is founded. Thus, -however ready men may be for high wages to work in a dangerous pit, -a wrong is held to be done if they are killed in it. If provisions -which might have made it safe have been neglected, someone is held -responsible. If nothing could make it safe, the working of the pit -would not be allowed. The reason for not more generally applying the -power of the state to prevent voluntary noxious employments, is not -that there is no wrong in the death of the individual through the -incidents of an employment which he has voluntarily undertaken, but -that the wrong is more effectually prevented by training and trusting -individuals to protect themselves than by the state protecting them. -Thus the waste of life in war would not be the less a wrong,--not the -less a violation of the right, which subsists between all members -of society, and which none can alienate, that each should have his -life respected by society,--if it were the fact that those whose -lives are wasted voluntarily incurred the risk of losing them. But -it can scarcely be held to be the fact. Not only is it impossible, -even when war is conducted on the most civilised methods, to prevent -great incidental loss of life (to say nothing of other injury) among -non-combatants; the waste of the life of the combatants is one which -the power of the state compels. This is equally true whether the army -is raised by voluntary enlistment or by conscription. It is obviously -so in the case of conscription; but under a system of voluntary -enlistment, though the individual soldier cannot say that he in -particular has been compelled by the government to risk his life, -it is still the case that the state compels the risk of a certain -number of lives. It decrees that an army of such a size shall be -raised, though if it can get the men by voluntary hiring it does not -exercise compulsion on the men of a particular age, and it sends the -army into the field. Its compulsive agency causes the death of the -soldiers killed, not any voluntary action on the part of the soldiers -themselves. The action of the soldiers no doubt contributes to the -result, for if they all refused to fight there would be no killing, -but it is an action put in motion and directed by the power of the -state, which is compulsive in the sense that it operates on the -individual in the last resort through fear of death. - -[1] [Greek οὐδεὶς ἀδικεῖται ἑκών (oudeis adikeitai hekon) = there can -be no injustice to a person who has agreed to what is done to him Tr.] - -160. We have then in war a destruction of human life inflicted on -the sufferers intentionally by voluntary human agency. It is true, -as we saw, that it is not easy to say in any case by whose agency in -particular. We may say indeed that it is by the agency of the state, -but what exactly does that mean? The state here must = the sovereign -power in the state; but it is always difficult to say by whom that -power is wielded, and if we could in any case specify its present -holders, the further question will arise whether their course of -action has not been shaped for them by previous holders of power. -But however widely distributed the agency may be which causes the -destruction of life in war, it is still intentional human agency. The -destruction is not the work of accident or of nature. If then it is -to be other than a wrong, because a violation of the right to mutual -protection of life involved in the membership of human society, it -can only be because there is exercised in war some right that is -paramount to this. It may be argued that this is the case; that there -is no right to the preservation of life at the cost of losing the -necessary conditions of 'living well'; that war is in some cases the -only means of maintaining these conditions, and that where this is -so, the wrong of causing the destruction of physical life disappears -in the paramount right of preserving the conditions under which alone -moral life is possible. - -161. This argument, however, seems to be only available for shifting -the quarter in which we might be at first disposed to lay the blame -of the wrong involved in war, not for changing the character of -that wrong. It goes to show that the wrong involved in the death -of certain soldiers does not necessarily lie with the government -which sends those soldiers into the field, because this may be -the only means by which the government can prevent more serious -wrong; it does not show that there is no wrong in their death. If -the integrity of any state can only be maintained at the cost of -war, and if that state is more than what many so-called states have -been,--more than an aggregation of individuals or communities under -one ruling power,--if it so far fulfils the idea of a state, that -its maintenance is necessary to the free development of the people -belonging to it; then by the authorities or people of that state no -wrong is done by the destruction of life which war involves, except -so far as they are responsible for the state of things which renders -the maintenance of the integrity of the state impossible by other -means. But how does, it come about that the integrity of such a state -is endangered? Not by accident or by the forces of nature, but by -intentional human agency in some form or other, however complicated; -and with that agency lies the wrong-doing. To determine it (as we -might be able to do if a horde of barbarians broke in on a civilised -state, compelling it to resort to war for its defence) is a matter -of small importance: what _is_ important to bear in mind (being one -of those obvious truths out of which we may allow ourselves to be -sophisticated), is that the destruction of life in war is always -wrong-doing, whoever be the wrong-doer, and that in the wars most -strictly defensive of political freedom the wrong-doing is only -removed from the defenders of political freedom to be transferred -elsewhere. If it is difficult in any case to say precisely where, -that is only a reason for more general self-reproach, for a more -humbling sense (as the preachers would say) of complicity in that -radical (but conquerable, because moral) evil of mankind which -renders such a means of maintaining political freedom necessary. The -language, indeed, which we hear from the pulpit about war being a -punishment for the sins of mankind, is perfectly true, but it needs -to be accompanied by the reminder that this punishment of sin is -simply a consequence of the sin and itself a further sin, brought -about by the action of the sinner, not an external infliction brought -about by agencies to which man is not a party. - -162. In fact, however, if most wars had been wars for the maintenance -or acquisition of political freedom, the difficulty of fixing the -blame of them, or at any rate of freeing one of the parties in -each case from blame, would be much less than it really is. Of the -European wars of the last four hundred years, how many could be -fairly said to have been wars in which either or any of the parties -were fighting for this end? Perhaps the wars in which the Dutch -Republics defended themselves against Spain and against Louis XIV, -and that in which Germany shook off the dominion of Napoleon. Perhaps -the more recent struggles of Italy and Hungary against the Austrian -Government. Perhaps in the first outset of the war of 1792 the French -may be fairly held to have been defending institutions necessary -for the development of social freedom and equality. In this war, -however, the issue very soon ceased to be one between the defenders -of such institutions on the one side, and their assailants on the -other, and in most modern wars the issue has not been of this kind -at all. The wars have arisen primarily out of the rival ambition of -kings and dynasties for territorial aggrandisement, with national -antipathies and ecclesiastical ambitions, and the passions arising -out of religious partisanship, as complicating influences. As nations -have come more and more to distinguish and solidify themselves, and -a national consciousness has come definitely to be formed in each, -the rival ambitions of nations have tended more and more first to -support, then perhaps to supersede, the ambitions of dynasties as -causes of war. The delusion has been practically dominant that the -gain of one nation must mean the loss of another. Hence national -jealousies in regard to colonial extension, hostile tariffs and -the effort of each nation to exclude others from its markets. The -explosion of this idea in the region of political economy has had -little effect in weakening its hold on men's minds. The people of -one nation still hear with jealousy of another nation's advance -in commerce, as if it meant some decay of their own. And if the -commercial jealousy of nations is very slow in disappearing, their -vanity, their desire apart from trade each to become or to seem -stronger than the other, has very much increased. A hundred and fifty -years ago national vanity could scarcely be said to be an influence -in politics. The people under one ruler were not homogeneous enough, -had not enough of a corporate consciousness, to develope a national -vanity. Now (under the name of patriotism) it has become a more -serious disturber of peace than dynastic ambition. Where the latter -is dangerous, it is because it has national vanity to work upon. - -163. Our conclusion then is that the destruction of life in war (to -say nothing of other evils incidental to it with which we are not -here concerned) is always wrong doing, with whomsoever the guilt of -the wrong-doing may lie; that only those parties to a war are exempt -from a share in the guilt who can truly plead that to them war is -the only means of maintaining the social conditions of the moral -development of man, and that there have been very few cases in which -this plea could be truly made. In saying this it is not forgotten, -either that many virtues are called into exercise by war, or that -wars have been a means by which the movement of mankind, which there -is reason for considering a progress to higher good, has been carried -on. These facts do not make the wrong-doing involved in war any less -so. If nothing is to be accounted wrong-doing through which final -good is wrought, we must give up either the idea of there being such -a thing as wrong-doing, or the idea of there being such a thing as -final good. If final good results from the world of our experience, -it results from processes in which wrong-doing is an inseparable -element. Wrong-doing is voluntary action, either (in the deeper -moral sense) proceeding from a will uninfluenced by the desire to be -good on the part of the agent (which may be taken to include action -tending to produce such action), or (in the sense contemplated by -the 'jus naturae') it is action that interferes with the conditions -necessary to the free-play and development of a good-will on the -part of others. It may be that, according to the divine scheme of -the world, such wrong-doing is an element in a process by which men -gradually approximate more nearly to good (in the sense of a good -will). We cannot think of God as a moral being without supposing -this to be the case. But this makes no difference to wrong-doing in -those relations in which it is wrong-doing, and with which alone we -are concerned, viz. in relation to the will of human agents and to -the results which those agents can foresee and intend to produce. If -an action, so far as any results go which the agent can have in view -or over which he has control, interferes with conditions necessary -to the free-play and development of a good-will on the part of -others, it is not the less wrong-doing because, through some agency -which is not his, the effects which he intended, and which rendered -it wrong-doing, come to contribute to an ulterior good. Nor, if it -issues from bad will (in the sense explained), is it less wrong (in -the moral sense) because this will is itself, in the view of some -higher being, contributory to a moral good which is not, in whole or -part, within the view of the agent. If then war is wrong-doing in -both the above senses (as it is always, at any rate on the part of -those with whom the ultimate responsibility for it lies), it does not -cease to be so on account of any good resulting from it in a scheme -of providence. - -164. 'But,' it may be asked, 'are we justified in saying that it -is always wrong-doing on the part of those with whom the ultimate -responsibility lies? It is admitted that certain virtues may be -evoked by war; that it may have results contributory to the moral -progress of mankind; may not the eliciting of these virtues, the -production of these results, be contemplated by the originators of -war, and does not the origination of war, so far as influenced by -such motives, cease to be wrong-doing? It must be admitted that -Caesar's wars in Gaul were unprovoked wars of conquest, but their -effect was the establishment of Roman civilisation with its equal law -over a great part of western Europe, in such a way that it was never -wholly swept away, and that a permanent influence in the progress of -the European polity can be traced to it. May he not be credited with -having had, however indefinitely, such an effect as this in view? -Even if his wish to extend Roman civilisation was secondary to a plan -for raising an army by which he might master the Republic, is he to -have no credit for the beneficent results which are admitted to have -ensued from the success of that plan? May not a similar justification -be urged for English wars in India? If, again, the establishment -of the civil unity of Germany and the liberation of Christian -populations in Turkey are admitted to have been gains to mankind, is -not that a justification of the persons concerned in the origination -of the wars that brought about those results, so far as they can be -supposed to have been influenced by a desire for them?' - -165. These objections might be to the purpose if we were attempting -the task (generally, if not always, an impossible one) of determining -the moral desert, good or ill, of those who have been concerned -in bringing this or that war about. Their tendency merely is to -distribute the blame of the wrong-doing involved in war, to show -how widely ramified is the agency in that wrong-doing, not to -affect its character as wrong-doing. If the only way of civilising -Gaul was to kill all the people whom Caesar's wars caused to be -killed, and if the desire for civilising it was a prevailing motive -in Caesar's mind, so much the better for Caesar, but so much the -worse for the other unassignable and innumerable human agents who -brought it about that such an object could only be attained in such -a way. We are not, indeed, entitled to say that it could have been -brought about in any other way. It is true to say (if we know what -we are about in saying it) that nothing which happens in the world -could have happened otherwise than it has. The question for us is, -whether that condition of things which rendered e.g. Caesar's Gallic -wars, with the violation of human rights which they involved, the -interference in the case of innumerable persons with the conditions -under which man can be helpful to man (physical life being the first -of these), the _sine qua non_ in the promotion of ulterior human -welfare, was or was not the work of human agency. If it was (and -there is no doubt that it was, for to what merely natural agency -could the necessity be ascribed?), then in that ordinary sense of -the word 'could' in which it expresses our responsibility for our -actions, men _could_ have brought about the good result without the -evil means. They could have done so if they had been better. It was -owing to human wickedness--if less on Caesar's part, then so much -the more on the part of innumerable others--that the wrong-doing -of those wars was the appropriate means to this ulterior good. So -in regard to the other cases instanced. It is idle to speculate on -other means by which the permanent pacification of India, or the -unification of Germany, or the liberation of Christians in European -Turkey might have been brought about; but it is important to bear -in mind that the innumerable wrong acts involved in achieving -them--acts wrong, because violations of the rights of those directly -affected by them--did not cease to be wrong acts because under the -given condition of things the results specified would not have been -obtained without them. This given condition of things was not like -that (e.g.) which compels the castaways from a shipwreck, so many -days from shore, and with only so much provision in their boat, to -draw lots which shall be thrown overboard. It was a condition of -things which human wickedness, through traceable and untraceable -channels, brought about. If the individual promoters of wars, -which through the medium of multitudinous wrong-doing have yielded -good to mankind, have been really influenced by a desire for any -such good,--and much scepticism is justified in regard to such a -supposition,--then so much less of the guilt of the wrong-doing has -been theirs. No nation, at any rate, that has taken part in such wars -can fairly take credit for having been governed by such a motive. It -has been either a passive instrument in the hands of its rulers, or -has been animated by less worthy motives, very mixed, but of which -perhaps a diffused desire for excitement has been the most innocent. -On what reasonable ground can Englishmen or Germans or Russians claim -that their several nations took part in the wars by which India was -pacified, Germany unified, Bulgaria liberated, under the dominant -influence of a desire for human good? Rather, if the action of a -national conscience in such matters is possible at all, they should -take shame for their share in that general human selfishness which -rendered certain conditions of human development only attainable by -such means. - -166. (2) Reverting then to the questions which arose [1] out of the -assertion of a right to free life on the part of the individual man -as such, it appears that the first must be answered in the negative. -No state of war can make the destruction of man's life by man other -than a wrong, though the wrong is not always chargeable upon all the -parties to a war. The second question is virtually answered by what -has been said about the first. In regard to the state according to -its idea the question could not arise, for according to its idea -the state is an institution in which all rights are harmoniously -maintained, in which all the capacities that give rise to rights have -free-play given to them. No action in its own interest of a state -that fulfilled this idea could conflict with any true interest or -right of general society, of the men not subject to its law taken as -a whole. There is no such thing as an inevitable conflict between -states. There is nothing in the nature of the state that, given a -multiplicity of states, should make the gain of the one the loss of -the other. The more perfectly each one of them attains its proper -object of giving free scope to the capacities of all persons living -on a certain range of territory, the easier it is for others to -do so; and in proportion as they all do so the danger of conflict -disappears. - -[1] [Above, sec. 156. RLN] - -167. On the other hand, the imperfect realisation of civil equality -in the full sense of the term in certain states, is in greater or -less degree a source of danger to all. The presence in states either -of a prerogatived class or of a body of people who, whether by open -denial of civil rights or by restrictive laws, are thwarted in -the free development of their capacities, or of an ecclesiastical -organisation which disputes the authority of the state on matters -of right and thus prevents the perfect civil fusion of its members -with other citizens, always breeds an imagination of there being -some competition of interests between states. The privileged class -involuntarily believes and spreads the belief that the interest of -the state lies in some extension without, not in an improvement of -organisation within. A suffering class attracts sympathy from without -and invites interference with the state which contains it; and that -state responds, not by healing the sore, but by defending against -aggression what it conceives to be its special interests, but which -are only special on account of its bad organisation. Or perhaps the -suffering population overflows into another state, as the Irish into -America, and there becomes a source not only of internal difficulty -but of hostile feeling between it and the state where the suffering -population still survives. People, again, who, in matters which the -state treats as belonging to itself, take their direction from an -ecclesiastical power external to the state under which they live, -are necessarily in certain relations alien to that state, and may at -any time prove a source of apparently conflicting interests between -it and some other state, which under the influence of the hostile -ecclesiastical power espouses their cause. Remove from European -states, as they are and have been during the last hundred years, the -occasions of conflict, the sources of apparently competing interests, -which arise in one or other of the ways mentioned,--either from the -mistaken view of state-interests which a privileged class inevitably -takes, or from the presence in them of oppressed populations, or from -what we improperly call the antagonism of religious confessions,--and -there would not be or have been anything to disturb the peace between -them. And this is to say that the source of war between states lies -in their incomplete fulfilment of their function; in the fact that -there is some defect in the maintenance or reconciliation of rights -among their subjects. - -168. This is equally true in regard to those causes of conflict -which are loosely called 'religious.' These do not arise out of any -differences between the convictions of different people in regard -to the nature of God or their relations to Him, or the right way of -worshipping Him. They arise either out of some aggression upon the -religious freedom of certain people, made or allowed by the powers -of the state, which thus puts these people in the position of an -alien or unenfranchised class, or else out of an aggression on the -rights of the state by some corporation calling itself spiritual but -really claiming sovereignty over men's actions in the same relations -in which the state claims to determine them. There would be nothing -tending to international disturbance in the fact that bodies of -people who worship God in the Catholic manner live in a state where -the majority worship in the Greek or Protestant manner, and alongside -of another state where the majority is Catholic, but for one or other -or both of these circumstances, viz. that the Catholic worship and -teaching is interfered with by the Protestant or Greek state, and -that Catholics are liable to a direction by a power which claims to -regulate men's transactions with each other by a law of its own, and -which may see fit (e.g.) to prohibit the Catholic subjects in the -Greek or Protestant state from being married, or having their parents -buried, or their children taught the necessary arts, in the manner -which the state directs. This reciprocal invasion of right, the -invasion of the rights of the state by the church on the one side, -and on the other the restriction placed by the sovereign upon the -subject's freedom, not of conscience, (for that is impossible), but -of expressing his conscience in word and act, has sometimes caused a -state of things in which certain of the subjects of a state have been -better affected to another state than to their own, and in such a -case there is an element of natural hostility between the states. An -obvious instance to give of this relation between states would have -been that between Russia and Turkey, if Turkey could be considered to -have been constituted as a state at all. Perhaps a better instance -would be the position of Ireland in the past; its disaffection to -England and gravitation, first to France, then to the United States, -caused chiefly by Protestant penal laws which in turn were at least -provoked by the aggressive attitude of the church towards the English -state. Whenever a like invasion of rights still takes place, e.g. -in the treatment of the Catholic subjects of Russia in Poland, in -the ultramontane movement of resistance to certain requirements -of the state among the Catholic subjects of Germany, it tends to -international conflict. And what is now a somewhat remote tendency -has in the past been a formidable stimulant to war. - -169. It is nothing then in the necessary organisation of the state, -but rather some defect of that organisation in relation to its proper -function of maintaining and reconciling rights, of giving scope to -capacities, that leads to a conflict of apparent interests between -one state and another. The wrong, therefore, which results to human -society from conflicts between states cannot be condoned on the -ground that it is a necessary incident of the existence of states. -The wrong cannot be held to be lost in a higher right, which attaches -to the maintenance of the state as the institution through which -alone the freedom of man is realised. It is not the state, as such, -but this or that particular state, which by no means fulfils its -purpose, and might perhaps be swept away and superseded by another -with advantage to the ends for which the true state exists, that -needs to defend its interests by action injurious to those outside -it. Hence there is no ground for holding that a state is justified -in doing whatever its interests seem to require, irrespectively -of effects on other men. If those effects are bad, as involving -either a direct violation of personal rights or obstruction to the -moral development of society anywhere in the world, then there is -no ultimate justification for the political action that gives rise -to them. The question can only be (as we have seen generally in -regard to the wrong-doing of war), where in particular the blame -lies. Whether there is any justification for a particular state, -which in defence of its interests inflicts an injury on some portion -of mankind; whether, e.g., the Germans are justified in holding -Metz, on the supposition that their tenure of such a thoroughly -French town necessarily thwarts in many ways the healthy activity -of the inhabitants, or the English in carrying fire and sword into -Afghanistan for the sake of acquiring a scientific frontier; this -must depend (1) on the nature of the interests thus defended, (2) on -the impossibility of otherwise defending them, (3) on the question -how they came to be endangered. If they are interests of which the -maintenance is essential to those ends as a means to which the state -has its value, if the state which defends them has not itself been a -joint-cause of their being endangered, and if they cannot be defended -except at the cost of injury to some portion of mankind, then the -state which defends them is clear of the guilt of that injury. But -the guilt is removed from it only to be somewhere else, however wide -its distribution may be. It may be doubted, however, whether the -second question could ever be answered altogether in favour of a -state which finds it necessary to protect its interests at the cost -of inflicting an injury on mankind. - -170. It will be said, perhaps, that these formal arguments in proof -of the wrong-doing involved in war, and of the unjustifiability -of the policy which nations constantly adopt in defence of their -apparent interests, carry very little conviction; that a state is -not an abstract complex of institutions for the maintenance of -rights, but a nation, a people, possessing such institutions; that -the nation has its passions which inevitably lead it to judge all -questions of international right from its own point of view, and to -consider its apparent national interests as justifying anything; -that if it were otherwise, if the cosmopolitan point of view could -be adopted by nations, patriotism would be at an end; that whether -this be desirable or no, such an extinction of national passions is -impossible; that while they continue, wars are as inevitable between -nations as they would be between individuals, if individuals were -living in what philosophers have imagined to be the state of nature, -without recognition of a common superior; that nations in short are -in the position of men judging their own causes, which it is admitted -that no one can do impartially; and that this state of things cannot -be altered without the establishment of a common constraining power, -which would mean the extinction of the life of independent states,--a -result as undesirable as it is unattainable. Projects of perpetual -peace, to be logical, must be projects of all-embracing empire. - -171. There is some cogency in language of this kind. It is true -that when we speak of a state as a living agency, we mean, not an -institution or complex of institutions, but a nation organised in -a certain way; and that members of the nation in their corporate -or associated action are animated by certain passions, arising out -of their association, which, though not egoistic relatively to the -individual subjects of them (for they are motives to self-sacrifice), -may, in their influence on the dealings of one nation with another, -have an effect analogous to that which egoistic passions, properly -so called, have upon the dealings of individuals with each other. -On the other hand, it must be remembered that the national passion, -which in any good sense is simply the public spirit of the good -citizen, may take, and every day is taking, directions which lead -to no collision between one nation and another; (or, to say the -same thing negatively, that it is utterly false to speak as if the -desire for one's own nation to show more military strength than -others were the only or the right form of patriotism); and that -though a nation, with national feeling of its own, must everywhere -underlie a state, properly so called, yet still, just so far as the -perfect organisation of rights within each nation, which entitles -it to be called a state, is attained, the occasions of conflict -between nations disappear; and again, that by the same process, just -so far as it is satisfactorily carried out, an organ of expression -and action is established for each nation in dealing with other -nations, which is not really liable to be influenced by the same -egoistic passions in dealing with the government of another nation as -embroil individuals with each other. The love of mankind, no doubt, -needs to be particularised in order to have any power over life and -action. Just as there can be no true friendship except towards this -or that individual, so there can be no true public spirit which is -not localised in some way. The man whose desire to serve his kind is -not centred primarily in some home, radiating from it to a commune, -a municipality, and a nation, presumably has no effectual desire to -serve his kind at all. But there is no reason why this localised -or nationalised philanthropy should take the form of a jealousy of -other nations or a desire to fight them, personally or by proxy. -Those in whom it is strongest are every day expressing it in good -works which benefit their fellow-citizens without interfering with -the men of other nations. Those who from time to time talk of the -need of a great war to bring unselfish impulses into play, give us -reason to suspect that they are too selfish themselves to recognise -the unselfish activity that is going on all round them. Till all -the methods have been exhausted by which nature can be brought into -the service of man, till society is so organised that everyone's -capacities have free scope for their development, there is no need to -resort to war for a field in which patriotism may display itself. - -172. In fact, just so far as states are thoroughly formed, the -diversion of patriotism into the military channel tends to come to an -end. It is a survival from a condition of things in which, as yet, -the state, in the full sense, was not; in the sense, namely, that -in each territory controlled by a single independent government, -the rights of all persons, as founded on their capacities for -contributing to a common good, are equally established by one system -of law. If each separately governed territory were inhabited by a -people so organised within itself, there would be nothing to lead -to the association of the public spirit of the good citizen with -military aggressiveness,--an association which belongs properly not -to the πολιτεία [1], but to the δυναστεία. The Greek states, however -complete might be the equality of their citizens among themselves, -were all δυναστείαι in relation to some subject populations, and, as -such, jealous of each other. The Peloponnesian war was eminently a -war of rival δυναστείαι. And those habits and institutions and modes -of feeling in Europe of the present day, which tend to international -conflict, are either survivals from the δυναστείαι of the past, or -arise out of the very incomplete manner in which, as yet, over most -of Europe the πολιτεία has superseded the δυναστεία. Patriotism, -in that special military sense in which it is distinguished from -public spirit, is not the temper of the citizen dealing with -fellow-citizens, or with men who are themselves citizens of their -several states, but that of the follower of the feudal chief, or -of the member of a privileged class conscious of a power, resting -ultimately on force, over an inferior population, or of a nation -holding empire over other nations. - -[1] [Greek πολιτεία (politeia) = constitutional government, -particularly a city-state, δυναστεία/ι (dunasteia/i) = narrow -oligarchy/ies Tr] - -173. Standing armies, again, though existing on a larger scale now -than ever before, are not products of the civilisation of Europe, but -of the predominance over that civilisation of the old δυναστείαι. -The influences which have given rise to and keep up those armies -essentially belong to a state of things in which mankind--even -European mankind--is not yet thoroughly organised into political -life. Roughly summarised, they are these: (1). The temporary -confiscation by Napoleon to his own account of the products of the -French Revolution, which thus, though founded on a true idea of a -citizenship in which not the few only, but all men, should partake, -for the time issued in a δυναστεία over the countries which most -directly felt the effects of the revolution. (2). The consequent -revival in dynastic forms, under the influence of antagonism to -France, of national life in Germany. (3), The aspiration after -national unity elsewhere in Europe,--a movement which must precede -the organisation of states on a sound basis, and for the time readily -yields itself to direction by a δυναστεία. (4). The existence, over -all the Slavonic side of Europe, of populations which are only just -beginning to make any approach to political life--the life of the -πολιτεία, or 'civitas '--and still offer a tempting field to the -ambition of rival δυναστείαι, Austrian, Russian, and Turkish (which, -indeed, are by no means to be put on a level, but are alike as not -resting on a basis of citizenship). (5). The tenure of a great Indian -empire by England, which not only gives it a military character which -would not belong to it simply as a state, but brings it into outward -relations with the δυναστείαι just spoken of. This is no doubt a -very incomplete account of the influences which have combined to -'turn Europe into a great camp' (a very exaggerated expression); but -it may serve to show what a fuller account would show more clearly, -that the military system of Europe is no necessary incident of the -relations between independent states, but arises from the fact that -the organisation of state-life, even with those peoples that have -been brought under its influence at all, is still so incomplete. - -174. The more complete that organisation becomes, the more the -motives and occasions of international conflict tend to disappear, -while the bonds of unity become stronger. The latter is the case, if -for no other reason, yet for this; that the better organisation of -the state means freer scope to the individual (not necessarily to do -as he likes, e.g. in, the buying and selling of alcohol, but in such -development of activity as is good on the whole). This again means -free intercourse between members of one state and those of another, -and in particular more freedom of trade. All restrictions on freedom -of wholesome trade are really based on special class-interests, -and must disappear with the realisation of that idea of individual -right, founded on the capacity of every man for free contribution -to social good, which is the true idea of the state. And as trade -between members of different states becomes freer and more full, the -sense of common interests between them, which war would infringe, -becomes stronger. The bond of peace thus established is sometimes -depreciated as a selfish one, but it need be no more selfish than -that which keeps the peace between members of the same state, who -have no acquaintance with each other. In one case as in the other -it may be said that the individual tries to prevent a breach of the -peace because he knows that he has more to gain than to lose by it. -In the latter case, however, this account of the matter would be, to -say the least, insufficient. The good citizen observes the law in -letter and in spirit, not from any fear of consequences to himself -if he did not, but from an idea of the mutual respect by men for -each other's rights as that which should be an idea which has become -habitual with him, and regulates his conduct without his asking airy -questions about it. There was a time, however, when this idea only -thus acted spontaneously in regulating a man's action towards his -family or immediate neighbours or friends. Considerations of interest -were the medium through which a wider range of persons came to be -brought within its range. And thus, although considerations of an -identity of interests, arising out of trade, may be the occasion of -men's recognising in men of other nations those rights which war -violates, there is no reason why, upon that occasion and through -the familiarity which trade brings about, an idea of justice, as a -relation which should subsist between all mankind as well as between -members of the same state, may not come to act on men's minds as -independently of all calculation of their several interests as does -the idea which regulates the conduct of the good citizen. - -175. If the necessary or impelling power of the idea of what is -due from members of different nations to each other is weak, it -must be observed on the other hand that the individual members of a -nation have no such apparent interest in their government's dealing -unfairly with another nation as one individual may have in getting -the advantage of another. Thus, so far as this idea comes to form -part of the habit of men's minds, there ceases to be anything in the -passions of the people which a government represents to stimulate the -government to that unfairness in dealing with another government, -to which an individual might be moved by self-seeking passions in -dealing with another individual, in the absence of an impartial -authority having power over both. If at the same time the several -governments are purely representative of the several peoples, as they -should become with the due organisation of the state, and thus have -no dynastic interests of their own in embroiling one nation with -another, there seems to be no reason why they should not arrive at a -passionless impartiality in dealing with each other, which would be -beyond the reach of the individual in defending his own cause against -another. At any rate, if no government can ever get rid of some bias -in its own favour, there remains the possibility of mediation in -cases of dispute by disinterested governments. With the abatement of -national jealousies and the removal of those deeply-seated causes -of war which, as we have seen, are connected with the deficient -organisation of states, the dream of an international court with -authority resting on the consent of independent states may come to -be realised. Such a result may be very remote, but it is important -to bear in mind that there is nothing in the intrinsic nature of a -system of independent states incompatible with it, but that on the -contrary every advance in the organisation of man kind into states in -the sense explained is a step towards it. - - L. _THE RIGHT OF THE STATE TO PUNISH._ - -176. (3) We come now to the third of the questions raised [l] in -regard to the individual's right to free life, the question under -what conditions that right may be forfeited; the question, in other -words, of the state's right of punishment. The right (i.e. the power -secured by social recognition) of free life in every man rests on -the assumed capacity in every man of free action contributory to -social good ('free' in the sense of determined by the idea of a -common good. Animals may and do contribute to the good of man, but -not thus 'freely'). This right on the part of associated men implies -the right on their part to prevent such actions as interfere with -the possibility of free action contributory to social good. This -constitutes the right of punishment, the right so far to use force -upon a person (to treat him as an animal or a thing) as may be -necessary to save others from this interference. - -[1] [Above, sec. 156. RLN] - -177. Under what conditions a person needs to be thus dealt with, -what particular actions on his part constitute such an interference, -is a question which can only be answered when we have considered -what powers in particular need to be secured to individuals or to -officials in order to the possibility of free action of the kind -described. Every such power is a right of which the violation, if -intended as a violation of a right, requires a punishment, of which -the kind and amount must depend on the relative importance of the -right and of the extent to which its general exercise is threatened. -Thus every theory of rights in detail must be followed by, or -indeed implies, a corresponding theory of punishment in detail, a -theory which considers what particular acts are punishable, and how -they should be punished. The latter cannot precede the former: all -that can be done here is further to consider what general rules of -punishment are implied in the principle on which we hold all right of -punishment to rest, and how far in the actual practice of punishment -that principle has been realised. - -178. It is commonly asked whether punishment according to its proper -nature is retributive or preventive or reformatory. The true answer -is that it is and should be all three. The statement, however, -that the punishment of the criminal by the state is retributive, -though true in a sense that will be explained directly, yet so -readily lends itself to a misunderstanding, that it is perhaps best -avoided. It is not true in the sense that in legal punishment as it -should be there survives any element of private vengeance, of the -desire on the part of the individual who has received a hurt from -another to inflict an equivalent hurt in return. It is true that -the beginning of punishment by the state first appears in the form -of a regulation of private vengeance, but it is not therefore to be -supposed that punishment by the state is in any way a continuation of -private vengeance. It is the essence of the former to suppress and -supersede the latter, but it only does so gradually, just as rights -in actuality are only formed gradually. Private vengeance belongs -to the state of things in which rights are not as yet actualised; -in the sense that the powers which it is for the social good that -a man should be allowed to exercise, are not yet secured to him -by society. In proportion as they are actualised, the exercise of -private vengeance must cease. A _right_ of private vengeance is an -impossibility; for, just so far as the vengeance is private, the -individual in executing it is exercising a power not derived from -society nor regulated by reference to social good, and such a power -is not a right. Hence the view commonly taken by writers of the -seventeenth and eighteenth centuries implies an entire misconception -of the nature of a right; the view, viz., that there first existed -rights of self-defence and self-vindication on the part of -individuals in a state of nature, and that these came to be devolved -on a power representing all individuals, so that the state's right -of using force against those men who use or threaten force against -other men, is merely the sum or equivalent of the private rights -which individuals would severally possess if there were no public -equivalent for them. This is to suppose that to have been a right -which in truth, under the supposed conditions, would merely have been -animal impulse and power, and public right (which is a pleonasm, for -all right is public) to have resulted from the combination of these -animal impulses and powers: it is to suppose that from a state of -things in which 'homo homini lupus' by mere combination of wolfish -impulses, there could result the state of things in which 'homo -homini deus.' - -179. In a state of things in which private vengeance for hurt -inflicted was the universal practice, there could be no rights at -all. In the most primitive society in which rights can exist, it -must at least within the limits of the family be suppressed by -that authority of the family or its head which first constitutes -rights. In such a society it is only on the members of another -family that a man may retaliate at pleasure a wrong done to him, and -then the vengeance is not, strictly speaking, taken by individual -upon individual, though individuals may be severally the agent and -patient of it, but by family upon family. Just because there is as -yet no idea of a state independent of ties of birth, much less of -a universal society from relation to which a man derives rights, -there is no idea of rights attaching to him as a citizen or as a -man, but only as a member of a family. That social right, which is -at once a right of society over the individual, and a right which -society communicates and secures to the individual, appears, so far, -only as a control exercised by the family over its members in their -dealings with each other, as an authorisation which it gives them in -prosecuting their quarrels with members of another family, and at the -same time to a certain extent as a limitation on the manner in which -feuds between families may be carried on, a limitation generally -dependent on some religious authority equally recognised by the -families at feud. - -180. From this state of things it is a long step to the régime of -law in a duly constituted state. Under it the arm of the state alone -is the organ through which force may be exercised on the individual; -the individual is prohibited from averting violence by violence, -except so far as is necessary for the immediate protection of life, -and altogether from avenging wrong done to him, on the understanding -that the society, of which he is an organ and from which he derives -his rights, being injured in every injury to him, duly protects him -against injury, and when it fails to prevent such injury from being -done, inflicts such punishment on the offender as is necessary for -future protection. But the process from the one state of things to -the other, though a long one, consists in the further development of -that social right [1] which properly speaking was the only right the -individual ever had, and from the first, or ever since a permanent -family tie existed, was present as a qualifying and restraining -element in the exercise of private vengeance so far as that exercise -partook at all in the nature of a right. The process is not a -continuance of private vengeance under altered forms, but a gradual -suppression of it by the fuller realisation of the higher principle -which all along controlled it. - -[1] 'Social right,' i.e. right belonging to a society of persons -recognising a common good, and belonging through membership of the -society to the several persons constituting it. The society to which -the right belongs, is in principle or possibility a society of all -men as rendered capable of free intercourse with each other by the -organisation of the state. Actually at first it is only this or -that family; then some association of families; finally the state, -as including all other forms of association, reconciling the rights -which arise out of them, and thus the most perfect medium through -which the individual can contribute to the good of mankind and -mankind to his. - -181. But it will be asked, how upon this view of the nature -of punishment as inflicted by the state it can be considered -retributory. If no private vengeance, no vengeance of the injured -individual, is involved in punishment, there can be no vengeance in -it at all. The conception of vengeance is quite inappropriate to the -action of society or the state on the criminal. The state cannot be -supposed capable of vindictive passion. Nor, if the essence of crime -is a wrong done to society, does it admit of retaliation upon the -person committing it. A hurt done to an individual can be requited by -the infliction of a like hurt upon the person who has done it; but no -equivalent of wrong done to society can be paid back to the doer of -it. - -182. It is true that there is such a thing as a national desire -for revenge [1] (France and Germany): and, if a state = a nation -organised in a certain way, why should it not be 'capable of -vindictive passion'? No doubt there is a unity of feeling among the -members of a nation which makes them feel any loss of strength, real -or apparent, sustained by the nation in its corporate character, as -a hurt or disgrace to themselves, which they instinctively desire to -revenge. The corporate feeling is so strong that individuals feel -themselves severally hurt in the supposed hurt of the nation. But -when it is said that a crime is an offence against the state, it is -not meant that the body of persons forming the nation feel any hurt -in the sense in which the person robbed or wounded does, such a hurt -as excites a natural desire for revenge. What is meant is that there -is a violation of a system of rights which the nation has, no doubt, -an interest in maintaining, but a purely social interest, quite -different from the egoistic interest of the individual of which the -desire for vengeance is a form. A nation is capable of vindictive -feeling, but not so a nation as acting through the medium of a -settled, impartial, general law for the maintenance of rights, and -that is what we mean when we talk of the state as that against which -crimes are committed and which punishes them. - -[1] 'Happy shall he be that rewardeth thee as thou hast served us.' - -183. It is true that when a crime of a certain sort, e.g. a -cold-blooded murder, has been committed, a popular sympathy with -the sufferer is excited, which expresses itself in the wish to -'serve out' the murderer. This has some resemblance to the desire -for personal revenge, but is really quite different, because not -egoistic. Indignation against wrong done to another has nothing in -common with a desire to revenge a wrong done to oneself. It borrows -the language of private revenge, just as the love of God borrows the -language of sensuous affection. Such indignation is inseparable from -the interest in social well-being, and along with it is the chief -agent in the establishment and maintenance of legal punishment. Law -indeed is necessarily general, while indignation is particular in its -reference; and accordingly the treatment of any particular crime, -so far as determined by law, cannot correspond with the indignation -which the crime excites; but the law merely determines the general -category under which the crime falls, and fixes certain limits to -the punishment that may be inflicted under that category. Within -those limits discretion is left to the judge as to the sentence that -he passes, and his sentence is in part influenced by the sort of -indignation which in the given state of public sentiment the crime -is calculated to excite; though generally much more by his opinion -as to the amount of terror required for the prevention of prevalent -crime. Now what is it in punishment that this indignation demands? If -not the sole foundation of public punishment, it is yet inseparable -from that public interest, on which the system of rights, with the -corresponding system of punishments protective of rights, depends. -In whatever sense then this indignation demands retribution in -punishment, in that sense retribution would seem to be a necessary -element in punishment. It demands retribution in the sense of -demanding that the criminal should have his due, should be dealt with -according to his deserts, should be punished justly. - -184. This is quite a different thing from an equivalence between -the amount of suffering inflicted by the criminal and that which -he sustains in punishment. The amount of suffering which is caused -by any crime is really as incalculable as that which the criminal -endures in punishment, whatever the punishment. It is only in the -case of death for murder that there is any appearance of equivalence -between the two sufferings, and in this case the appearance is quite -superficial. The suffering involved in death depends almost entirely -on the circumstances, which are absolutely different in the case -of the murdered man and in that of the man executed for murder. -When a man is imprisoned with hard labour for robbery, there is not -even an appearance of equivalence of suffering between the crime -and the punishment. In what then does the justice of a punishment, -or its correspondence with the criminal's deserts consist? It will -not do to say that these terms merely represent the result of an -association of ideas between a crime and the penalty which we are -accustomed to see inflicted on it; that society has come to attach -certain penalties to certain actions as a result of the experience -(1) of suffering and loss caused by those acts, and (2) of the kind -of suffering of which the expectation will deter men from doing them; -and that these penalties having become customary, the onlookers and -the criminal himself, when one of them is inflicted, feel that he has -got what was to be expected, and call it his due or desert or a just -punishment. If this were the true account of the matter, there would -be nothing to explain the difference between the emotion excited by -the spectacle of a just punishment inflicted, or the demand that it -should be inflicted, on the one side, and on the other that excited -by the sight of physical suffering following according to the usual -course of things upon a physical combination of circumstances, or the -expectation that such suffering will follow. If it is said that the -difference is explained by the fact that in the one case both the -antecedent (the criminal act) and the consequent represent voluntary -human agency, while in the other they do not, we reply, Just so, but -for that reason the conception of a punishment as just differs wholly -from any conception of it that could result either from its being -customary, or from the infliction of such punishment having been -commonly found a means for protecting us against hurt. - -185. The idea of punishment implies on the side of the person -punished at once a capacity for determination by the conception of a -common or public good, or in other words a practical understanding of -the nature of rights as founded on relations to such public good, and -an actual violation of a right or omission to fulfil an obligation, -the right or obligation being one of which the agent might have -been aware and the violation or omission one which he might have -prevented. On the side of the authority punishing, it implies equally -a conception of right founded on relation to public good, and one -which, unlike that on the part of the criminal, is realised in act; a -conception of which the punitive act, as founded on a consideration -of what is necessary for the maintenance of rights, is the logical -expression. A punishment is unjust if either element is absent; if -either the act punished is not a violation of known rights or an -omission to fulfil known obligations of a kind which the agent might -have prevented, or the punishment is one that is not required for -the maintenance of rights, or (which comes to the same thing), if -the ostensible rights for the maintenance of which the punishment -is required are not real rights, are not liberties of action or -acquisition which there is any real public interest in maintaining. - -186. When the specified conditions of just punishment are fulfilled, -the person punished himself recognises it as just, as his due or -desert, and it is so recognised by the onlooker who thinks himself -into the situation. The criminal, being susceptible to the idea of -public good, and through it to the idea of rights, though this idea -has not been strong enough to regulate his actions, sees in the -punishment its natural expression. He sees that the punishment is his -own act returning on himself, in the sense that it is the necessary -outcome of his act in a society governed by the conception of rights, -a conception which he appreciates and to which he does involuntary -reverence. - -It is the outcome of his act, or his act returning upon himself, in -a different way from that in which a man's act returns on himself -when, having misused his body, he is visited according to physical -necessity by painful consequences. The cause of the suffering which -the act entails in the one case is the relation of the act to a -society governed by the conception of rights; in the other it is not. -For that reason, the painful consequence of the act to the doer in -the one case is, in the other is not, properly a punishment. We do -indeed commonly speak of the painful consequences of imprudent or -immoral acts ('immoral' as distinct from 'illegal') as a punishment -of them, but this is either metaphorically or because we think of -the course of the world as regulated by a divine sovereign, whom we -conceive as a maintainer of rights like the sovereign of a state. -We may think of it as divinely regulated, and so regulated with a -view to the realisation of moral good, but we shall still not be -warranted in speaking of the sufferings which follow in the course of -nature upon certain kinds of conduct as punishments, according to the -distinctive sense in which crime is punished, unless we suppose the -maintenance of rights to be the object of the moral government of the -world,--which is to put the cart before the horse; for, as we have -seen, rights are relative to morality, not morality to rights (the -ground on which certain liberties of action and acquisition should -be guaranteed as rights being that they are conditions of the moral -perfection of society). - -While there would be reason, then, as against those who say that the -punishment of crime is merely preventive, in saying that it is also -retributive, if the needed correction of the 'merely preventive' -doctrine could not be more accurately stated, it would seem that -the truth can be more accurately stated by the proposition that -punishment is not justified unless it is just, and that it is not -just unless the act punished is an intentional violation of real -right or neglect of real obligation which the agent could have -avoided (i.e. unless the agent knowingly and by intentional act -interferes with some freedom of action or acquisition which there is -a public interest in maintaining), and unless the future maintenance -of rights requires that the criminal be dealt with as he is in the -punishment.[1] - -[1] The conceptions of the just and of justice implied in this -statement of the conditions of just punishment may be expressed -briefly as follows. 'The just' = that complex of social conditions -which for each individual is necessary to enable him to realise his -capacity of contributing to social good. 'Justice' is the habit of -mind which leads us to respect those conditions in dealing with -others,--not to interfere with them so far as they already exist, -and to bring them into existence so far as they are not found in -existence. - -187. It is clear, however, that this requirement, that punishment of -crime should be just, may be covered by the statement that in its -proper nature it is preventive, if the nature of that which is to be -prevented by it is sufficiently defined. Its proper function is, in -the interest of rights that are genuine (in the sense explained), to -prevent actions of the kind described by associating in the mind of -every possible doer of them a certain terror with the contemplation -of the act,--such terror as is necessary on the whole to protect the -rights threatened by such action. The whipping of an ill-behaved -dog is preventive, but not preventive in the sense in which the -punishment of crime is so, because (1) the dog's ill conduct is not -an intentional violation of a right or neglect of a known obligation, -the dog having no conception of right or obligation, and (2) for -the same reason the whipping does not lead to the association of -terror in the minds of other dogs with the violation of rights and -neglect of obligations. To shoot men down who resist a successful -_coup d'état_ may be effectually preventive of further resistance -to the government established by the _coup d'état_, but it does not -satisfy the true idea of punishment, because the terror produced by -the massacre is not necessary for the protection of genuine rights, -rights founded on public interest. To hang men for sheep-stealing, -again, does not satisfy the idea; because, though it is a genuine -right that sheep-stealing violates, in a society where there was -any decent reconciliation of rights no such terror as is caused -by the punishment of death would be required for the protection -of the right. It is because the theory that punishment is 'merely -preventive' favours the notion that the repetition of any action -which any sufficient body of men find inconvenient may justifiably -be prevented by any sort of terror that may be convenient for the -purpose, that it requires to be guarded by substituting for the -qualifying 'merely' a statement of what it is which the justifiable -punishment prevents and why it prevents it. - -188. But does our theory, after all has been said about the -wrongness of punishment that is not just, afford any standard for -the apportionment of just punishment, any criterion of the amount of -interference with a criminal's personal rights that is appropriate to -his crime, except such as is afforded by a prevalent impression among -men as to what is necessary for their security? Can we construe it so -as to afford such a criterion, without at the same time condemning -a great deal of punishment which yet society could be never brought -to dispense with? Does it really admit of being applied at all in -the presence of the admitted impossibility of ascertaining the -degree of moral guilt of criminals, as depending on their state of -character or habitual motives? How, according to it, can we justify -punishments inflicted in the case of 'culpable negligence,' e.g. when -an engine-driver, by careless driving, for which we think very little -the worse of him, is the occasion of a bad accident, and is heavily -punished in consequence? - -189. It is true that there can be no _a priori_ criterion of just -punishment, except of an abstract and negative kind. We may say that -no punishment is just, unless the rights which it serves to protect -are powers on the part of individuals or corporations of which the -general maintenance is necessary to the well-being of society on -the whole, and unless the terror which the punishment is calculated -to inspire is necessary for their maintenance. For a positive and -detailed criterion of just punishment, we must wait till a system -of rights has been established in which the claims of all men, as -founded on their capacities for contributing to social well-being, -are perfectly harmonised, and till experience has shown the degree -and kind of terror with which men must be affected in order to the -suppression of the anti-social tendencies which might lead to the -violation of such a system of rights. And this is perhaps equivalent -to saying that no complete criterion of just punishment can be -arrived at till punishment is no longer necessary; for the state of -things supposed could scarcely be realised without bringing with it -an extinction of the tendencies which state-punishment is needed to -suppress. Meanwhile there is no method of approximation to justice -in punishment but that which consists in gradually making the system -of established rights just, i.e. in harmonising the true claims of -all men, and in discovering by experience the really efficient means -of restraining tendencies to violation of rights. An intentional -violation of a right must be punished, whether the right violated -is one that should be a right or no, on the principle that social -well-being suffers more from violation of any established right, -whatever the nature of the right, than from the establishment as a -right of a power which should not be so established; and it can only -be punished in the way which for the time is thought most efficient -by the maintainers of law for protecting the right in question by -associating terror with its violation. This, however, does not -alter the moral duty, on the part of the society authorising the -punishment, to make its punishments just by making the system of -rights which it maintains just. The justice of the punishment depends -on the justice of the general system of rights; not merely on the -propriety with reference to social well-being of maintaining this -or that particular right which the crime punished violates, but on -the question whether the social organisation in which a criminal has -lived and acted is one that has given him a fair chance of not being -a criminal. - -190. We are apt to think that the justice of a punishment depends on -some sort of equality between its magnitude and that of the crime -punished, but this notion arises from a confusion of punishment as -inflicted by the state for a wrong done to society with compensation -to the individual for damage done him. Neither a crime nor its -punishment admits of strictly quantitative measurement. It may be -said, indeed, that the greater the crime the heavier should be its -punishment, but this is only true if by the 'heavier punishment' is -understood that with which most terror is associated in the popular -imagination, and if the conception of the 'greater crime' is taken on -the one hand to exclude any estimation of the degree of moral guilt, -and, on the other hand, to be determined by an estimate not only of -the importance in the social system of the right violated by the -crime, but of the amount of terror that needs to be associated with -the crime in the general apprehension in order to its prevention. But -when its terms are thus understood, the statement that the greater -the crime the heavier should be its punishment, becomes an identical -proposition. It amounts to this, that the crime which requires most -terror to be associated with it in order to its prevention should -have most terror thus associated with it. - -191. But why do the terms 'heavier punishment' and 'greater crime' -need to be thus understood? Why should not the 'greater crime' be -understood to mean the crime implying most moral wickedness, or -partly this, partly the crime which violates the more important kind -of right? Why should a consideration of the amount of terror that -needs to be associated with it in order to its prevention enter into -the determination of the 'greater crime' at all? Why again should -not the 'heavier punishment' mean simply that in which the person -punished actually suffers most pain? Why should it be taken to mean -that with which most terror is associated upon the contemplation? -In short, is not the proposition in question at once true and -significant in the sense that the crime which implies the most moral -depravity, or violates the most important right (such as the right to -life), or which does both, should be visited with the punishment that -involves most pain to the sufferer? - -192. The answer is: As regards heaviness of punishment, it is not in -the power of the state to regulate the amount of pain which it causes -to the person whom it punishes. If it could only punish justly by -making this pain proportionate in each case to the depravity implied -in the crime, it could not punish justly at all. The amount of pain -which any kind of punishment causes to the particular person depends -on his temperament and circumstances, which neither the state nor -its agent, the judge, can ascertain. But if it could be ascertained, -and if (which is equally impossible) the amount of depravity implied -in each particular crime could be ascertained likewise in order to -make the pain of the punishment proportionate to the depravity, -a different punishment would have to be inflicted in each case -according to the temperament and circumstances of the criminal. There -would be an end to all general rules of punishment. - -193. In truth, however, the state in its capacity as the sustainer -of rights (and it is in this capacity that it punishes) has nothing -to do with the amount of moral depravity in the criminal, and the -primary reference in punishment, as inflicted by the state, is not -to the effect of the punishment on the person punished but to its -effect on others. The considerations determining its amount should -be prospective rather than retrospective. In the crime a right has -been violated. No punishment can undo what has been done, or make -good the wrong to the person who has suffered. What it can do is -to make less likely the doing of a similar wrong in other cases. -Its object, therefore, is not to cause pain to the criminal for the -sake of causing it, nor chiefly for the sake of preventing him, -individually, from committing the crime again, but to associate -terror with the contemplation of the crime in the mind of others -who might be tempted to commit it. And this object, unlike that of -making the pain of the punishment commensurate with the guilt of the -criminal, is in the main attainable. The effect of the spectacle -of punishment on the onlooker is independent of any minute inquiry -into the degree to which it affects the particular criminal. The -attachment of equal penalties to offences that are alike in respect -of the importance of the rights which they violate, and in respect -of the ordinary temptations to them, will, on the whole, lead to -the association of an equal amount of terror with the prospect of -committing like offences in the public mind. When the circumstances, -indeed, of two criminals guilty of offences alike in both the above -respects are very greatly and obviously different, so different as to -make the operation of the same penalty upon them very conspicuously -different, then the penalty may be varied without interfering with -its terrifying effect on the public mind. We will suppose e.g. that -a fraud on the part of a respectable banker is equivalent, both in -respect of the rights which it violates and of the terror needed to -prevent the recurrence of like offences, to a burglary. It will not -follow because the burglary is punished by imprisonment with hard -labour that hard labour should be inflicted on the fraudulent banker -likewise. The infliction of hard labour is in everyone's apprehension -so different to the banker from what it is to the burglar, that its -infliction is not needed in order to equalise the terror which the -popular imagination associates with the punishment in the two cases. - -194. On the same principle may be justified the consideration of -extenuating circumstances in the infliction of punishment. In fact, -whether under that name or another, they are taken account of in -the administration of criminal law among all civilised nations. -'Extenuating circumstances' is not a phrase in use among our -lawyers, but in fact the consideration of them does constantly, with -the approval of the judge, convert what would otherwise have been -conviction for murder into conviction for manslaughter, and when -there has been conviction for murder, leads to the commutation of -the sentence. This fact is often taken to show that the degree of -moral depravity on the part of the criminal, the question of his -character and motive, is and must be considered in determining the -punishment due to him. In truth, however, 'extenuating circumstances' -may very well make a difference in the kind of terror which needs -to be associated with a crime in order to the future protection of -rights, and under certain conditions the consideration of them may be -sufficiently justified on this ground. Suppose a theft by a starving -man, or a hare shot by an angry farmer whose corn it is devouring. -These are crimes, but crimes under such extenuating circumstances -that there is no need to associate very serious terror with them in -order to the protection of the essential rights of property. In the -latter case the right which the farmer violates is one which perhaps -might be disallowed altogether without interference with any right -which society is interested in maintaining. In the former case the -right violated is a primary and essential one; one which, where there -are many starving people, is in fact pretty sure to be protected by -the most stringent penalties. And it might be argued that on the -principle stated this is as it should be; that, so far from the -hunger of the thief being a reason for lightening his punishment, it -is a reason for increasing it, in order that the special temptation -to steal when far gone in hunger may, if possible, be neutralised by -a special terror associated with the commission of the crime under -those conditions. But this would be a one-sided application of the -principle. It is not the business of the state to protect one order -of rights specially, but all rights equally. It ought not therefore -to protect a certain order of rights by associating special terror -with the violation of them, when the special temptation to their -violation itself implies a violation of right in the persons of -those who are so tempted, as is the case when a general danger to -property arises from the fact that many people are on the edge of -starvation. The attempt to do so is at once ineffectual and diverts -attention from the true way of protecting the endangered right, which -is to prevent people from falling into a state of starvation. In -any tolerably organised society the condition of a man, ordinarily -honest and industrious, who is driven to theft by hunger, will be -so abnormal that very little terror needs to be associated with the -crime as so committed in order to maintain the sanctity of property -in the general imagination. Suppose again a man to be killed in a -quarrel arising out of his having tampered with the fidelity of his -neighbour's wife. In such a case 'extenuating circumstances' may -fairly be pleaded against the infliction of the extremest penalty, -because the extremest terror does not need to be associated with -homicide, as committed under such conditions, in order to the general -protection of human life, and because the attempt so to associate it -would tend, so far as successful, to weaken the general sense of the -wrong--the breach of family right--involved in the act which, in the -case supposed, provokes the homicide. - -195. 'After all,' it may be said, 'this is a far-fetched way of -explaining the admission of extenuating circumstances as modifying -the punishment of crime. Why so strenuously avoid the simpler -explanation, that extenuating circumstances are taken into account -because they are held to modify the moral guilt of the crime? Is not -their recognition a practical proof that the punishment of a crime by -the state represents the moral disapproval of the community? Does it -not show that, however imperfectly the amount of punishment inflicted -on a crime may in fact correspond to its moral wickedness, it is -generally felt that it ought to do so?' - -196. The answer is that there are two reasons for holding that -the state neither can nor should attempt to adjust the amount of -punishment which it inflicts on a crime to the degree of moral -depravity which the crime implies. (1) That the degree of moral -depravity implied in any crime is unascertainable. It depends on the -motive of the crime, and on this as part of the general character of -the agent; on the relation in which the habitual set of his character -stands to the character habitually set on the pursuit of goodness. No -one can ascertain this in regard to himself. He may know that he is -always far from being what he ought to be; that one particular action -of his represents on the whole, with much admixture of inferior -motives; the better tendency; another, with some admixture of better -motives, the worse. But any question in regard to the degree of -moral goodness or badness in any action of his own or of his most -intimate friend is quite unanswerable. Much less can a judge or jury -answer such a question in regard to an unknown criminal. We may be -sure indeed that any ordinary crime--nay, perhaps even that of the -'disinterested rebel'--implies the operation of some motive which -is morally bad, for though it is not necessarily the worst men who -come into conflict with established rights, it probably never can be -the best; but the degree of badness implied in such a conflict in -any particular case is quite beyond our ken, and it is this degree -that must be ascertained if the amount of punishment which the state -inflicts is to be proportionate to the moral badness implied in the -crime. (2) The notion that the state should, if it could, adjust -the amount of punishment which it inflicts on a crime to the moral -wickedness of the crime, rests on a false view of the relation of -the state to morality. It implies that it is the business of the -state to punish wickedness, as such. But it has no such business. It -cannot undertake to punish wickedness, as such, without vitiating -the disinterestedness of the effort to escape wickedness, and thus -checking the growth of a true goodness of the heart in the attempt to -promote a goodness which is merely on the surface. This, however, is -not to be understood as meaning that the punishment of crime serves -no moral purpose. It does serve such a purpose, and has its value -in doing so, but only in the sense that the protection of rights, -and the association of terror with their violation, is the condition -antecedent of any general advance in moral well-being. - -197. The punishment of crime, then, neither is, nor can, nor should -be adjusted to the degree of moral depravity, properly so called, -which is implied in the crime. But it does not therefore follow that -it does not represent the disapproval which the community feels for -the crime. On the whole, making allowance for the fact that law -and judicial custom vary more slowly than popular feeling, it does -represent such disapproval. And the disapproval may fitly be called -moral, so far as that merely means that it is a disapproval relating -to voluntary action. But it is a disapproval founded on a sense of -what is necessary for the protection of rights, not on a judgment -of good and evil of that kind which we call conscience when it is -applied to our own actions, and which is founded on an ideal of -moral goodness with which we compare our inward conduct ('inward,' -as representing motives and character). It is founded essentially on -the outward aspect of a man's conduct, on the view of it as related -to the security and freedom in action and acquisition of other -members of society. It is true that this distinction between the -outward and inward aspects of conduct is not present to the popular -mind. It has not been recognised by those who have been the agents -in establishing the existing law of crimes in civilised nations. -As the state came to control the individual or family in revenging -hurts, and to substitute its penalties for private vengeance, rules -of punishment came to be enacted expressive of general disapproval, -without any clear consciousness of what was the ground of the -disapproval. But in fact it was by what have been just described as -the outward consequences of conduct that a general disapproval of -it was ordinarily excited. Its morality in the stricter or inward -sense was not matter of general social consideration. Thus in the -main it has been on the ground of its interference with the general -security and freedom in action and acquisition, and in proportion -to the apprehension excited by it in this respect, that conduct has -been punished by the state. Thus the actual practice of criminal -law has on the whole corresponded to its true principle. So far as -this principle has been departed from, it has not been because the -moral badness of conduct, in the true or inward sense, has been -taken account of in its treatment as a crime, for this has not been -generally contemplated at all, but because 'religious' considerations -have interfered. Conduct which did not call for punishment by the -state as interfering with any true rights (rights that should be -rights) has been punished as 'irreligious.' This, however, did not -mean that it was punished on the ground of moral badness, properly -so called. It meant that its consequences were feared either as -likely to weaken the belief in some divine authority on which the -established system of rights was supposed to rest, or as likely to -bring evil on the community through provoking the wrath of some -unseen power. - -198. This account of the considerations which have regulated the -punishment of crimes explains the severity with which 'criminal -negligence' is in some cases punished, and that severity is justified -by the account given of the true principle of criminal law, the -principle, viz., that crime should be punished according to the -importance of the right which it violates, and to the degree of -terror which in a well-organised society needs to be associated with -the crime in order to the protection of the right. It cannot be held -that the carelessness of an engine-driver who overlooks a signal -and causes a fatal accident, implies more moral depravity than is -implied in such negligence as all of us are constantly guilty of. -Considered with reference to the state of mind of the agent, it is -on a level with multitudes of actions and omissions which are not -punished at all. Yet the engine-driver would be found guilty of -manslaughter and sentenced to penal servitude. The justification is -not to be found in distinctions between different kinds of negligence -on the part of different agents, but in the effect of the negligence -in different cases upon the rights of others. In the case supposed, -the most important of all rights, the right to life, on the part -of railway passengers depends for its maintenance on the vigilance -of the drivers. Any preventible failure in such vigilance requires -to have sufficient terror associated with it in the mind of other -engine-drivers to prevent the recurrence of a like failure in -vigilance. Such punishment is just, however generally virtuous the -victim of it is, because it is necessary to the protection of rights -of which the protection is necessary to social well-being; and the -victim of it, in proportion to his sense of justice, which means his -habit of practically recognising true rights, will recognise it as -just. - -199. On this principle crimes committed in drunkenness must be dealt -with. Not only is all depravity of motive specially inapplicable to -them, since the motives actuating a drunken man often seem to have -little connection with his habitual character; it is not always the -case that a crime committed in drunkenness is even intentional. -When a man in a drunken rage kills another, he no doubt intends -to kill him, or at any rate to do him 'grievous bodily harm,' and -perhaps the association of great penal terror with such an offence -may tend to restrain men from committing it even when drunk; but -when a drunken mother lies on her child and smothers it, the hurt -is not intentional but accidental. The drunkenness, however, is not -accidental, but preventible by the influence of adequate motives. -It is therefore proper to treat such a violation of right, though -committed unknowingly, as a crime, and to associate terror with it -in the popular imagination, in order to the protection of rights by -making people more careful about getting drunk, about allowing or -promoting drunkenness, and about looking after drunken people. It is -unreasonable, however, to do this and at the same time to associate -so little terror, as in practice we do, with the promotion of -dangerous drunkenness. The case of a crime committed by a drunkard is -plainly distinguishable from that of a crime committed by a lunatic, -for the association of penal terror with the latter would tend -neither to prevent a lunatic from committing a crime nor people from -becoming lunatics. - -200. The principle above stated, as that according to which -punishment by the state should be inflicted and regulated, also -justifies a distinction between crimes and civil injuries, i.e. -between breaches of right for which the state inflicts punishment -without redress to the person injured, and those for which it -procures or seeks to procure redress to the person injured without -punishment of the person causing the injury. We are not here -concerned with the history of this distinction (for which see Maine, -_Ancient Law_, chap. x, and W.E. Hearn, _The Aryan Household_, chap. -xix), nor with the question whether many breaches of right now among -us treated as civil injuries ought not to be treated as crimes, -but with the justification that exists for treating certain kinds -of breach of right as cases in which the state should interfere -to procure redress for the person injured, but not in the way of -inflicting punishment on the injurer until he wilfully resists the -order to make redress. The principle of the distinction as ordinarily -laid down, viz. that civil injuries 'are violations of rights when -considered in reference to the injury sustained by the individual,' -while crimes are 'violations of rights when considered in reference -to their evil tendency as regards the community at large' (Stephen, -Book V, chap, i), is misleading; for if the well-being of the -community did not suffer in the hurt done to the individual, that -hurt would not be a violation of a right in the true sense at all, -nor would the community have any ground for insisting that the hurt -shall be redressed, and for determining the mode in which it shall -be redressed. A violation of right cannot in truth be considered -merely in relation to injury sustained by an individual, for, thus -considered, it would not be a violation of right. It may be said that -the state is only concerned in procuring redress for civil injuries, -because, if it left an individual to procure redress in his own way, -there would be no public peace. But there are other and easier ways -of preventing fighting than by procuring redress of wrong. We prevent -our dogs from fighting, not by redressing wrongs which they sustain -from each other (of wrongs as of rights they are in the proper sense -incapable), but by beating them or tying them up. The community would -not keep the peace by procuring redress for hurt or damage sustained -by individuals, unless it conceived itself as having interest -in the security of individuals from hurt and damage, unless it -considered the hurt done to individuals as done to itself. The true -justification for treating some breaches of right as cases merely for -redress, others as cases for punishment, is that, in order to the -general protection of rights, with some it is necessary to associate -a certain terror, with others it is not. - -201. What then is the general ground of distinction between those -with which terror does, and those with which it does not, need to -be associated? Clearly it is purposeless to associate terror with -breaches of right in the case where the breaker does not know that -he is violating a right, and is not responsible for not knowing it. -No association of terror with such a breach of right can prevent men -from similar breaches under like conditions. In any case, therefore, -in which it is, to begin with, open to dispute whether a breach of -right has been committed at all, e.g. when it is a question whether -a contract has been really broken, owing to some doubt as to the -interpretation of the contract or its application to a particular -set of circumstances, or whether a commodity of which someone is -in possession properly belongs to another,--in such a case, though -the judge finally decides that there has been a breach of right, -there is no ground for treating it as a crime or punishing it. If, -in the course of judicial inquiry, it turns out that there has been -fraud by one or other of the parties to the litigation, a criminal -prosecution, having punishment, not redress, for its object, should -properly supervene upon the civil suit, unless the consequences of -the civil suit are incidentally such as to amount to a sufficient -punishment of the fraudulent party. Again, it is purposeless to -associate terror with a breach of obligation which the person -committing it knows to be a breach, but of an obligation which he has -no means of fulfilling, e.g. non-payment of an acknowledged debt by -a man who, through no fault of his own, is without means of paying -it. It is only in cases of one or other of the above kinds,--cases -in which the breach of right, supposing it to have been committed, -has presumably arisen either from inability to prevent it or from -ignorance of the existence of the right,--that it can be held as an -absolute rule to be no business of the state to interfere penally but -only in the way of restoring, so far as possible, the broken right. - -202. But there are many cases of breach of right which can neither -be definitely reduced to one of the above kinds, nor distinguished -from them by any broad demarcation; cases in which the breaker of a -right has been ignorant of it, because he has not cared to know, or -in which his inability to fulfil it is the result of negligence or -extravagance. Whether these should be treated penally or no, will -depend partly on the seriousness of the wrong done through avoidable -ignorance or negligence, partly on the sufficiency of the deterrent -effect incidentally involved in the civil remedy. In the case e.g. of -inability to pay a debt through extravagance or recklessness, it may -be unnecessary and inadvisable to treat the breach of right penally, -in consideration that it is indirectly punished by poverty and the -loss of reputation incidental to bankruptcy, and the creditors -should not look to the state to protect them from the consequences -of lending on bad security. The negligence of a trustee, again, -may be indirectly punished by his being obliged to make good the -property lost through his neglect to the utmost of his means. This -may serve as a sufficiently deterrent example without the negligence -being proceeded against criminally. Again, damage done to property -by negligence is in England dealt with civilly, not criminally; -and it may be held that in this case the liability to civil action -is a sufficient deterrent. On the other hand, negligence which, as -negligence, is not really distinguishable from the above, is rightly -treated criminally when its consequences are more serious; e.g. that -of the railway-servant whose negligence results in a fatal accident, -that of the bank-director who allows a misleading statement of -accounts to be published, fraudulently perhaps in the eye of the -law, but in fact negligently. As a matter of principle, no doubt, -if intentional violation of the right of property is treated as -penal equally with the violation of the right of life, the negligent -violation should be treated as penal in the one case as much as in -the other. But as the consequences of an action for damages may -be virtually though not ostensibly penal to the person proceeded -against, it may be convenient to leave those negligences which do -not, like the negligence of a railway-servant, affect the most -important rights, or do not affect rights on a very large scale as -does that of a bank-director, to be dealt with by the civil process. - -203. The actual distinction between crimes and civil injuries in -English law is no doubt largely accidental. As the historians of law -point out, the civil process, having compensation, not punishment, -for its object, is the form which the interference of the community -for the maintenance of rights originally takes. The community, -restraining private vengeance, helps the injured person to redress, -and regulates the way in which redress shall be obtained. This -procedure no doubt implies the conviction that the community is -concerned in the injury done to an individual, but it is only by -degrees that this conviction becomes explicit, and that the community -comes to treat all preventible breaches of right as offences against -itself or its sovereign representative, i.e. as crimes or penal; in -the language of English law, as 'breaches of the king's peace.' Those -offences are first so treated which happen to excite most public -alarm, most fear for general safety (hence, among others, anything -thought sacrilegious). In a country like England, where no code has -been drawn up on general principles, the class of injuries that -are treated penally is gradually enlarged as public alarm happens -to be excited in particular directions, but it is largely a matter -of accident how the classification of crimes on one side and civil -injuries on the other happens to stand at any particular time. [1] - -[1] See Markby, _Elements of Law_, chap. xi, especially note 1, p. -243; and Austin, Lecture XXVII. Between crimes and civil injuries -the distinction, as it actually exists, is merely one of procedure -(as stated by Austin, p. 518). The violation of right in one case is -proceeded against by the method of indictment, in the other by an -'action.' The distinction that in one case punishment is the object -of the process, in the other redress, is introduced in order to -explain the difference of procedure; and to justify this distinction -resort is had to the further distinction, that civil injury is -considered to affect the individual merely, crime to affect the -state. But in fact the action for civil injury may incidentally have -a penal result (Austin, p 521), and if it had not, many violations -of right now treated as civil injuries would have to be treated as -crimes. As an explanation therefore of the distinction between crimes -and injuries as it stands, it is not correct to say that for the -former punishment is sought, for the latter merely redress. Nor for -reasons already given is it true of any civil injury to say that it -affects, or should be considered as affecting, injured individuals -_merely_. The only distinction of principle is that between -violations of right which call for punishment and those which do -not; and those only do not call for punishment in some form or other -which arise either from uncertainty as to the right violated, or from -inability to prevent the violation. - -204. According to the view here taken, then, there is no direct -reference in punishment by the state, either retrospective or -prospective, to moral good or evil. The state in its judicial action -does not look to the moral guilt of the criminal whom it punishes, -or to the promotion of moral good by means of his punishment in -him or others. It looks not to virtue and vice but to rights and -wrongs. It looks back to the wrong done in the crime which it -punishes; not, however, in order to avenge it, but in order to the -consideration of the sort of terror which needs to be associated -with such wrong-doing in order to the future maintenance of rights. -If the character of the criminal comes into account at all, it -can only be properly as an incident of this consideration. Thus -punishment of crime is preventive in its object; not, however, -preventive of any or every evil and by any and every means, but -(according to its idea or as it should be) _justly_ preventive -of _injustice_; preventive of interference with those powers of -action and acquisition which it is for the general well-being that -individuals should possess, and according to laws which allow those -powers equally to all men. But in order effectually to attain its -preventive object and to attain it justly, it should be reformatory. -When the reformatory office of punishment is insisted on, the -reference may be, and from the judicial point of view must be, not -to the moral good of the criminal as an ultimate end, but to his -recovery from criminal habits as a means to that which is the proper -and direct object of state-punishment, viz. the general protection -of rights. The reformatory function of punishment is from this point -of view an incident of its preventive function, as regulated by the -consideration of what is just to the criminal as well as to others. -For the fulfilment of this latter function, the great thing, as we -have seen, is by the punishment of an actual criminal to deter other -possible criminals; but for the same purpose, unless the actual -criminal is to be put out of the way or locked up for life, it must -be desirable to reform him so that he may not be dangerous in future. -Now when it is asked why he should not be put out of the way, it -must not be forgotten that among the rights which the state has to -maintain are included rights of the criminal himself. These indeed -are for the time suspended by his action in violation of rights, but -founded as they are on the capacity for contributing to social good, -they could only be held to be finally forfeited on the ground that -this capacity was absolutely extinct. - -205. This consideration limits the kind of punishment which the -state may justly inflict. It ought not in punishing to sacrifice -unnecessarily to the maintenance of rights in general what might be -called the reversionary rights of the criminal, rights which, if -properly treated, he might ultimately become capable of exercising -for the general good. Punishment therefore either by death or by -perpetual imprisonment is justifiable only on one of two grounds; -either that association of the extremest terror with certain actions -is under certain conditions necessary to preserve the possibility of -a social life based on the observance of rights, or that the crime -punished affords a presumption of a permanent incapacity for rights -on the part of the criminal. The first justification may be pleaded -for the executions of men concerned in treasonable outbreaks, or -guilty of certain breaches of discipline in war (on the supposition -that the war is necessary for the safety of the state and that such -punishments are a necessary incident of war). Whether the capital -punishment is really just in such cases must depend, not only on -its necessity as an incident in the defence of a certain state, -but on the question whether that state itself is fulfilling its -function as a sustainer of true rights. For the penalty of death -for murder both justifications may be urged. It cannot be defended -on any other ground, but it may be doubted whether the presumption -of permanent incapacity for rights is one which in our ignorance we -can ever be entitled to make. As to the other plea, the question is -whether, with a proper police system and sufficient certainty of -detection and conviction, the association of this extremest terror -with the murderer is necessary to the security of life. Where the -death-penalty, however, is unjustifiable, so must be that of really -permanent imprisonment; one as much as the other is an absolute -deprivation of free social life, and of the possibilities of moral -development which that life affords. The only justification for -a sentence of permanent imprisonment in a case where there would -be none for capital punishment would be that, though inflicted as -permanent, the imprisonment might be brought to an end in the event -of any sufficient proof appearing of the criminal's amendment. -But such proof could only be afforded if the imprisonment were so -modified as to allow the prisoner a certain amount of liberty. - -206. If punishment then is to be just, in the sense that in its -infliction due account is taken of all rights, including the -suspended rights of the criminal himself, it must be, so far as -public safety allows, reformatory. It must tend to qualify the -criminal for the resumption of rights. As reformatory, however, -punishment has for its direct object the qualification for the -exercise of rights, and is only concerned with the moralisation of -the criminal indirectly so far as it may result from the exercise -of rights. But even where it cannot be reformatory in this sense, -and over and above its reformatory function in cases where it has -one, it has a moral end. Just because punishment by the state has -for its direct object the maintenance of rights, it has, like every -other function of the state, indirectly a moral object, because true -rights, according to our definition, are powers which it is for -the general well-being that the individual (or association) should -possess, and that well-being is essentially a moral well-being. -Ultimately, therefore, the just punishment of crime is for the -moral good of the community. It is also for the moral good of the -criminal himself, unless--and this is a supposition which we ought -not to make--he is beyond the reach of moral influences. Though not -inflicted for that purpose, and though it would not the less have to -be inflicted if no moral effect on the criminal could be discerned, -it is morally the best thing that can happen to him. It is so, even -if a true social necessity requires that he be punished with death. -The fact that society is obliged so to deal with him affords the best -chance of bringing home to him the anti-social nature of his act. It -is true that the last utterances of murderers generally convey the -impression that they consider themselves interesting persons, quite -sure of going to heaven; but these are probably conventional. At -any rate if the solemn infliction of punishment on behalf of human -society, and without any sign of vindictiveness, will not breed the -shame which is the moral new birth, presumably nothing else within -human reach will. - - M. _THE RIGHT OF THE STATE TO PROMOTE MORALITY._ - -207. The right of the individual man as such to free life is -constantly gaining on its negative side more general recognition. It -is the basis of the growing scrupulosity in regard to punishments -which are not reformatory, which put rights finally out of the reach -of a criminal instead of qualifying him for their renewed exercise. -But the only rational foundation for the ascription of this right -is the ascription of capacity for free contribution to social good. -We treat this capacity in the man whose crime has given proof of -its having been overcome by anti-social tendencies, as yet giving -him a title to a further chance of its development; on the other -hand, we act as if it conferred no title on its possessors, before -a crime has been committed, to be placed under conditions in which -its realisation would be possible. Is this reasonable? Yet are not -all modern states so acting? Are they not allowing their ostensible -members to grow up under conditions which render the development of -social capacity practically impossible? Was it not more reasonable, -as in the ancient states, to deny the right to life in the human -subject as such, than to admit it under conditions which prevent the -realisation of the capacity that forms the ground of its admission? -This brings us to the fourth of the questions that arose [1] out of -the assertion of the individual's right to free life. What is the -nature and extent of the individual's claim to be enabled positively -to realise that capacity for freely contributing to social good which -is the foundation of his right to free life? - -[1] [Above, sec. 156. RLN] - -208. In dealing with this question, it is important to bear in mind -that the capacity we are considering is essentially a free or (what -is the same) a moral capacity. It is a capacity, not for action -determined by relation to a certain end, but for action determined -by a conception of the end to which it is relative. Only thus is -it a foundation of rights. The action of an animal or plant may -be made contributory to social good, but it is not therefore a -foundation of rights on the part of an animal or plant, because -they are not affected by the conception of the good to which they -contribute. A right is a power of acting for his own ends,--for -what he conceives to be his good,--secured to an individual by the -community, on the supposition that its exercise contributes to the -good of the community. But the exercise of such a power cannot be so -contributory, unless the individual, in acting for his own ends, is -at least affected by the conception of a good as common to himself -with others. The condition of making the animal contributory to human -good is that we do not leave him free to determine the exercise of -his powers; that we determine them for him; that we use him merely -as an instrument; and this means that we do not, because we cannot, -endow him with rights. We cannot endow him with rights because -there is no conception of a good common to him with us which we can -treat as a motive to him to do to us as he would have us do to him. -It is not indeed necessary to a capacity for rights, as it is to -true moral goodness, that interest in a good conceived as common to -himself with others should be a man's dominant motive. It is enough -if that which he presents to himself from time to time as his good, -and which accordingly determines his action, is so far affected by -consideration of the position in which he stands to others,--of -the way in which this or that possible action of his would affect -them, and of what he would have to expect from them in return,--as -to result habitually, without force or fear of force, in action not -incompatible with conditions necessary to the pursuit of a common -good on the part of others. In other words, it is the presumption -that a man in his general course of conduct will of his own motion -have respect to the common good, which entitles him to rights at -the hands of the community. The question of the moral value of the -motive which may induce this respect--whether an unselfish interest -in common good or the wish for personal pleasure and fear of personal -pain--does not come into the account at all. An agent, indeed, who -could only be induced by fear of death or bodily harm to behave -conformably to the requirements of the community, would not be a -subject of rights, because this influence could never be brought to -bear on him so constantly, if he were free to regulate his own life, -as to secure the public safety. But a man's desire for pleasure -to himself and aversion from pain to himself, though dissociated -from any desire for a higher object, for any object that is desired -because good for others, may constitute a capacity for rights, if -his imagination of pleasure and pain is so far affected by sympathy -with the feeling of others about him as to make him, independently of -force or fear of punishment, observant of established rights. In such -a case the fear of punishment may be needed to neutralise anti-social -impulses under circumstances of special temptation, but by itself it -could never be a sufficiently uniform motive to qualify a man, in the -absence of more spontaneously social feelings, for the life of a free -citizen. The qualification for such a life is a spontaneous habit -of acting with reference to a common good, whether that habit be -founded on an imagination of pleasures and pains or on a conception -of what ought to be. In either case the habit implies at least an -understanding that there is such a thing as a common good, and a -regulation of egoistic hopes and fears, if not an inducing of more -'disinterested' motives, in consequence of that understanding. - -209. The capacity for rights, then, being a capacity for spontaneous -action regulated by a conception of a common good, either so -regulated through an interest which flows directly from that -conception, or through hopes and fears which are affected by it -through more complex channels of habit and association, is a capacity -which cannot be generated--which on the contrary is neutralised--by -any influences that interfere with the spontaneous action of social -interests. Now any direct enforcement of the outward conduct, -which ought to flow from social interests, by means of threatened -penalties--and a law requiring such conduct necessarily implies -penalties for disobedience to it--does interfere with the spontaneous -action of those interests, and consequently checks the growth of -the capacity which is the condition of the beneficial exercise of -rights. For this reason the effectual action of the state, i.e. the -community as acting through law, for the promotion of habits of -true citizenship, seems necessarily to be confined to the removal -of obstacles. Under this head, however, there may and should be -included much that most states have hitherto neglected, and much that -at first sight may have the appearance of an enforcement of moral -duties, e.g. the requirement that parents have their children taught -the elementary arts. To educate one's children is no doubt a moral -duty, and it is not one of those duties, like that of paying debts, -of which the neglect directly interferes with the rights of someone -else. It might seem, therefore, to be a duty with which positive law -should have nothing to do, any more than with the duty of striving -after a noble life. On the other hand, the neglect of it does tend -to prevent the growth of the capacity for beneficially exercising -rights on the part of those whose education is neglected, and it is -on this account, not as a purely moral duty on the part of a parent, -but as the prevention of a hindrance to the capacity for rights on -the part of children, that education should be enforced by the state. -It may be objected, indeed, that in enforcing it we are departing in -regard to the parents from the principle above laid down; that we are -interfering with the spontaneous action of social interests, though -we are doing so with a view to promoting this spontaneous action -in another generation. But the answer to this objection is, that a -law of compulsory education, if the preferences, ecclesiastical or -otherwise, of those parents who show any practical sense of their -responsibility are duly respected, is from the beginning only felt -as compulsion by those in whom, so far as this social function is -concerned, there is no spontaneity to be interfered with; and that in -the second generation, though the law with its penal sanctions still -continues, it is not felt as a law, as an enforcement of action by -penalties, at all. - -210. On the same principle the freedom of contract ought probably -to be more restricted in certain directions than is at present the -case. The freedom to do as they like on the part of one set of men -may involve the ultimate disqualification of many others, or of a -succeeding generation, for the exercise of rights. This applies most -obviously to such kinds of contract or traffic as affect the health -and housing of the people, the growth of population relatively to -the means of subsistence, and the accumulation or distribution of -landed property. In the hurry of removing these restraints on free -dealing between man and man, which have arisen partly perhaps from -some confused idea of maintaining morality, but much more from the -power of class-interests, we have been apt to take too narrow a view -of the range of persons--not one generation merely, but succeeding -generations--whose freedom ought to be taken into account, and of -the conditions necessary to their freedom ('freedom' here meaning -their qualification for the exercise of rights). Hence the massing -of population without regard to conditions of health; unrestrained -traffic in deleterious commodities; unlimited upgrowth of the class -of hired labourers in particular industries which circumstances have -suddenly stimulated, without any provision against the danger of an -impoverished proletariate in following generations. Meanwhile, under -pretence of allowing freedom of bequest and settlement, a system has -grown up which prevents the landlords of each generation from being -free either in the government of their families or in the disposal of -their land, and aggravates the tendency to crowd into towns, as well -as the difficulties of providing healthy house-room, by keeping land -in a few hands. It would be out of place here to consider in detail -the remedies for these evils, or to discuss the question how far it -is well to trust to the initiative of the state or of individuals in -dealing with them. It is enough to point out the directions in which -the state may remove obstacles to the realisation of the capacity for -beneficial exercise of rights, without defeating its own object by -vitiating the spontaneous character of that capacity. - - N. _THE RIGHT OF THE STATE IN REGARD TO PROPERTY._ - -211. We have now considered the ground of the right to free life, -and what is the justification, if any, for the apparent disregard of -that right, _(a)_ in war, __(b)__ in the infliction of punishment. We -have also dealt with the question of the general office of the state -in regard to the development of that capacity in individuals which -is the foundation of the right, pointing out on the one hand the -necessary limitation of its office in this respect, on the other hand -the directions in which it may remove obstacles to that development. -We have next to consider the rationale of the rights of property. - -In discussions on the 'origin of property' two questions are apt -to be mixed up which, though connected, ought to be kept distinct. -One is the question how men have come to appropriate; the other -the question how the idea of right has come to be associated with -their appropriations. As the term 'property' not only implies a -permanent possession of something, or a possession which can only be -given up with the good will of the possessor, but also a possession -recognised as a right, an inquiry into the origin of property must -involve both these questions, but it is not the less important that -the distinction between them should be observed. Each of them again -has both its analytical and its historical side. In regard to the -first question it is important to learn all that can be learnt as -to the kind of things that were first, and afterwards at successive -periods, appropriated; as to the mode in which, and the sort of -persons or societies by whom, they were appropriated. This is an -historical inquiry. But it cannot take the place of a metaphysical -or psychological analysis of the conditions on the part of the -appropriating subject implied in the fact that he does such a thing -as appropriate. So, too, in regard to the second question, it is -important to investigate historically the forms in which the right -of men in their appropriations has been recognised; the parties, -whether individuals or societies, to whom the right has been allowed; -and the sort of objects, capable of appropriation, to which it has -been considered to extend. But neither can these inquiries help us -to understand, in the absence of a metaphysical or moral analysis, -either what is implied in the ascription of a right to certain -appropriations, or why there should be a right to them. - -212. We have then two questions, as above stated, each requiring -two different methods of treatment. But neither have the questions -themselves, nor the different methods of dealing with them, been duly -distinguished. - -It is owing to confusion between them that the right of property -in things has been supposed to originate in the first occupancy of -them. This supposition, in truth, merely disguises the identical -proposition that in order to property there must to begin with -have been some appropriation. The truism that there could be no -property in anything which had not been at some time and in some -manner appropriated, tells us nothing as to how or why the property -in it, as a right, came to be recognised, or why that right should -be recognised. But owing to the confusion between the origin of -appropriation and the origin of property as a right, an identical -proposition as to the beginning of appropriation seemed to be an -instructive statement as to the basis of the rights of property. Of -late, in a revulsion from theories founded on identical propositions, -'historical' inquiries into the 'origin of property' have come into -vogue. The right method of dealing with the question has been taken -to lie in an investigation of the earliest forms in which property -has existed. But such investigation, however valuable in itself, -leaves untouched the questions, (1) what it is in the nature of men -that makes it possible for them, and moves them, to appropriate; (2) -why it is that they conceive of themselves and each other as having a -right in their appropriations; (3) on what ground this conception is -treated as a moral authority,--as one that should be acted on. - -213. (1) Appropriation is an expression of will; of the individual's -effort to give reality to a conception of his own good; of his -consciousness of a possible self-satisfaction as an object to be -attained. It is different from mere provision to supply a future -want. Such provision appears to be made by certain animals, e.g. -ants. It can scarcely be made under the influence of the imagination -of pain incidental to future want derived from previous experience, -for the ant lays up for the winter though it has not previously -lived through the winter. It may be suggested that it does so from -inherited habit, but that this habit has originally arisen from an -experience of pain on the part of ants in the past. Whether this is -the true account of the matter we have not, I think,--perhaps from -the nature of the case we cannot have--the means of deciding. We -conceal our ignorance by saying that the ant acts instinctively, -which is in effect a merely negative statement, that the ant is not -moved to make provision for winter either by imagination of the -pain which will be felt in winter if it does not, or by knowledge -(conception of the fact) that such pain will be felt. In fact, -we know nothing of the action of the ant from the inside, or as -an expression of consciousness. If we are not entitled to deny -dogmatically that it expresses consciousness at all, neither are -we entitled to say that it does express consciousness, still less -what consciousness it expresses. On the other hand we are able to -interpret the acts of ourselves, and of those with whom we can -communicate by means of signs to which we and they attach the same -meaning, as expressions of consciousness of a certain kind, and thus -by reflective analysis to assure ourselves that acts of appropriation -in particular express a will of the kind stated; that they are not -merely a passing employment of such materials as can be laid hands on -to satisfy this or that want, present or future, felt or imagined, -but reflect the consciousness of a subject which distinguishes itself -from its wants; which presents itself to itself as still there and -demanding satisfaction when this or that want, or any number of -wants, have been satisfied; which thus not merely uses a thing to -fill a want, and in so doing at once destroys the thing and for the -time removes the want, but says to itself, 'This shall be mine to do -as I like with, to satisfy my wants and express my emotions as they -arise.' - -214. One condition of the existence of property, then, is -appropriation, and that implies the conception of himself on the -part of the appropriator as a permanent subject for whose use, as -instruments of satisfaction and expression, he takes and fashions -certain external things, certain things external to his bodily -members. These things, so taken and fashioned, cease to be external -as they were before. They become a sort of extension of the man's -organs, the constant apparatus through which he gives reality to -his ideas and wishes. But another condition must be fulfilled in -order to constitute property, even of the most simple and primitive -sort. This is the recognition by others of a man's appropriations as -something which they will treat as his, not theirs, and the guarantee -to him of his appropriations by means of that recognition. What then -is the ground of the recognition? The writers of the seventeenth -and eighteenth centuries, who discussed the basis of the rights of -property, took it for granted, and in so doing begged the question. -Grotius makes the right of property rest on contract, but clearly -until there is a recognised 'meum' and 'tuum' there can be no -contract. Contract presupposes property. The property in a particular -thing may be derived from a contract through which it has been -obtained in exchange for another thing or for some service rendered, -but that implies that it was previously the property of another, -and that the person obtaining it had a property in something else, -if only in the labour of his hands, which he could exchange for it. -[1] Hobbes is so far more logical that he does not derive property -from contract, but treats property and 'the validity of covenants' -as co-ordinately dependent on the existence of a sovereign power -of compulsion. [2] But his account of this, as of all other forms -of right, is open to the objection (before dwelt on) that if the -sovereign power is merely a strongest force it cannot be a source of -rights; and that if it is other than this, if it is a representative -and maintainer of rights, its existence presupposes rights, which -remain to be accounted for. As previously shown, Hobbes, while -professing to make all rights dependent on the sovereign power, -presupposes rights in his account of the institution of this power. -The validity of contracts 'begins not but with its institution,' -yet its own right is derived from an irrevocable contract of all -with all in which each devolves his 'persona,' the body of his -rights, upon it. Without pressing his particular forms of expression -unfairly against him, it is clear that he could not really succeed -in thinking of rights as derived simply from supreme force; that he -could not associate the idea of absolute right with the sovereign -without supposing prior rights which it was made the business of the -sovereign to enforce, and in particular such a recognised distinction -between 'meum' and 'tuum' as is necessary to a covenant. Nor when we -have dropped Hobbes' notion of government or law-making power, as -having originated in a covenant of all with all, shall we succeed any -better in deriving rights of property, any more than other rights, -from law or a sovereign which makes law, unless we regard the law or -sovereign as the organ or sustainer of a general social recognition -of certain powers, as powers which should be exercised. - -[1] Grotius, _De Jure, etc_. Book II, chap. ii. Sect. 5. 'Simul -discimus quomodo res in proprietatem iverint ... pacto quodam aut -expresso, ut per divisionem, aut tacito, ut per occupationem: simul -atque enim communio displicuit, nec instituta est divisio, censeri -debet inter omnes convenisse ut, quod quisque occupasset, id proprium -haberet.' But he supposes a previous process by which things had been -appropriated (Sect. 4), owing to the necessity of spending labour on -them in order to satisfy desire for a more refined kind of living -than could be supplied by spontaneous products of the earth. 'Hinc -discimus quae fuerit causa, ob quam a primaeva communione rerum -primo mobilium, deinde et immobilium discessum est: nimirum quod non -contenti homines vesci sponte natis, antra habitare ... vitae genus -exquisitius delegissent, industria opus fuit, quam singuli rebus -singulis adhiberent.' ... The 'communio rerum,' thus departed from -when labour came to be expended on things, Grotius had previously -described (Sect. 1) as a state of things in which everyone had a -right to whatever he could lay hands on. 'Erant omnia communia et -indivisa omnibus, veluti unum cunctis patrimonium esset. Hinc factum -ut statim quisque hominum ad suos usus arripere posset quod vellet, -et quae consumi poterant consumere, ac talis usus universalis juris -erat tum vice proprietatis. Nam quod quisque sic arripuerat, id ei -eripere alter nisi per injuriam non poterat.' Here then a virtual -right of property, though not so called, seems to be supposed in -two forms previous to the establishment of what Grotius calls the -right of property by contract. There is (1) a right of property in -what each can 'take to his use and consume' out of the raw material -supplied by nature; (2) a further right of each man in that on which -he has expended labour. Grotius does not indeed expressly call this -a right, but if there is a right, as he says there is, on the part -of each man to that which he is able 'ad suos arripere usus,' much -more must there be a right to that which he has not only taken but -fashioned by his labour. On the nature and rationale of this right -Grotius throws no light, but it is clearly presupposed by that right -of property which he supposes to be derived from contract, and must -be recognised before any such contract could be possible. - -[2] 'There is annexed to the sovereignty the whole power of -prescribing the rules whereby every man may know what goods he may -enjoy and what actions he may do without being molested by any of -his fellow-subjects: and this is it men call propriety. For before -constitution of sovereign power all men had right to all things, -which necessarily causeth war; and therefore this propriety, being -necessary to peace, and depending on sovereign power, is the act -of that power in order to the public peace.' (_Leviathan_, pt. II, -chap. xviii.) 'The nature of justice consisteth in keeping of valid -covenants, but the validity of covenants begins not but with the -constitution of a civil power, sufficient to compel men to keep them; -and then it is also that propriety begins.' (_Ibid_. chap, xv.) - -215. Locke [1] treats property--fairly enough so long as only its -simplest forms are in question--as derived from labour. By the same -law of nature and reason by which a man has 'a property in his -own person,' 'the labour of his body and the work of his hand are -properly his' too. Now that the right to free life, which we have -already dwelt on, carries with it a certain right to property, to -a certain permanent apparatus beyond the bodily organs, for the -maintenance and expression of that life, is quite true. But apart -from the difficulty of tracing some kinds of property, in which men -are in fact held to have a right, to the labour of anyone, even of -someone from whom it has been derived by inheritance or bequest (a -difficulty to be considered presently), to say that it is a 'law of -nature and reason' that a man should have a property in the work -of his hands is no more than saying that that on which a man has -impressed his labour is recognised by others as something which -should be his, just as he himself is recognised by them as one that -should be his own master. The ground of the recognition is the same -in both cases, and it is Locke's merit to have pointed this out; but -what the ground is he does not consider, shelving the question by -appealing to a law of nature and reason. - -[1] _Civil Government_, chap. v. The most important passages are -quoted in Fox Bourne's _Life of Locke_, vol. ii. pp. 171 and 172. - -216. The ground of the right to free life, the reason why a man is -secured in the free exercise of his powers through recognition of -that exercise by others as something that should be, lay, as we saw, -in the conception on the part of everyone who concedes the right to -others and to whom it is conceded, of an identity of good for himself -and others. It is only as within a society, as a relation between -its members, though the society be that of all men, that there can -be such a thing as a right; and the right to free life rests on the -common will of the society, in the sense that each member of the -society within which the right subsists contributes to satisfy the -others in seeking to satisfy himself, and that each is aware that the -other does so; whence there results a common interest in the free -play of the powers of all. And just as the recognised interest of a -society constitutes for each member of it the right to free life, -just as it makes each conceive of such life on the part of himself -and his neighbour as what should be, and thus forms the basis of -a restraining custom which secures it for each, so it constitutes -the right to the instruments of such life, making each regard the -possession of them by the other as for the common good, and thus -through the medium first of custom, then of law, securing them to -each. - -217. Thus the doctrine that the foundation of the right of property -lies in the will, that property is 'realised will,' is true enough -if we attach a certain meaning to 'will'; if we understand by it, -not the momentary spring of any and every spontaneous action, but a -constant principle, operative in all men qualified for any form of -society, however frequently overborne by passing impulses, in virtue -of which each seeks to give reality to the conception of a well-being -which he necessarily regards as common to himself with others. A -will of this kind explains at once the effort to appropriate, and -the restraint placed on each in his appropriations by a customary -recognition of the interest which each has in the success of the -like effort on the part of the other members of a society with which -he shares a common well-being. This customary recognition, founded -on a moral or rational will, requires indeed to be represented by -some adequate force before it can result in a real maintenance of -the rights of property. The wild beast in man will not otherwise -yield obedience to the rational will. And from the operation of -this compulsive force, very imperfectly controlled by the moral -tendencies which need its co-operation,--in other words from the -historical incidents of conquest and government, --there result -many characteristics of the institution of property, as it actually -exists, which cannot be derived from the spiritual principle which -we have assigned as its foundation. Still, without that principle -it could not have come into existence, nor would it have any moral -justification at all. - -218. It accords with the account given of this principle that the -right of property, like every other form of right, should first -appear within societies founded on kinship, these being naturally -the societies within which the restraining conception of a common -well-being is first operative. We are apt indeed to think of the -state of things in which the members of a family or clan hold land -and stock in common, as the antithesis of one in which rights -of property exist. In truth it is the earliest stage of their -existence, because the most primitive form of society in which the -fruit of his labour is secured to the individual by the society, -under the influence of the conception of a common well-being. The -characteristic of primitive communities is not the absence of -distinction between 'meum' and 'tuum,' without which no society of -intelligent as opposed to instinctive agents would be possible at -all, but the common possession of certain materials, in particular -land, on which labour may be expended. It is the same common interest -which prevents the separate appropriation of these materials, and -which secures the individual in the enjoyment and use of that which -his labour can extract from them. - -219. From the moral joint of view, however, the clan-system is -defective, because under it the restraint imposed upon the individual -by his membership of a society is not, and has not the opportunity -of becoming, a self-imposed restraint, a free obedience, to which, -though the alternative course is left open to him, the individual -submits, because he conceives it as his true good. The area within -which he can shape his own circumstances is not sufficient to allow -of the opposite possibilities of right and wrong being presented to -him, and thus of his learning to love right for its own sake. And the -other side of this moral tutelage of the individual, this withholding -from him of the opportunity of being freely determined by recognition -of his moral relations, is the confinement of those relations -themselves, which under the clan-system have no actual existence -except as between members of the same clan. A necessary condition -at once of the growth of a free morality, i.e. a certain behaviour -of men determined by an understanding of moral relations and by the -value which they set on them as understood, and of the conception -of those relations as relations between all men, is that free play -should be given to every man's powers of appropriation. Moral freedom -is not the same thing as a control over the outward circumstances -and appliances of life. It is the end to which such control is a -generally necessary means, and which gives it its value. In order to -obtain this control, men must cease to be limited in their activities -by the customs of the clan. The range of their appropriations must -be extended; they must include more of the permanent material on -which labour may be expended, and not merely the passing products of -labour spent on unappropriated material; and they must be at once -secured and controlled in it by the good-will, by the sense of common -interest, of a wider society, of a society to which any and every -one may belong who will observe its conditions, and not merely those -of a particular parentage; in other words by the law, written or -unwritten, of a free state. - -220. It is too long a business here to attempt an account of the -process by which the organisation of rights in the state has -superseded that of the clan, and at the same time the restriction of -the powers of appropriation implied in the latter has been removed. -It is important to observe, however, that this process has by no -means contributed unmixedly to the end to which, from the moral -point of view, it should have contributed. That end is at once the -emancipation of the individual from all restrictions upon the free -moral life, and his provision with means for it. But the actual -result of the development of rights of property in Europe, as part of -its general political development, has so far been a state of things -in which all indeed _may_ have property, but great numbers in fact -cannot have it in that sense in which alone it is of value, viz. as a -permanent apparatus for carrying out a plan of life, for expressing -ideas of what is beautiful, or giving effect to benevolent wishes. -In the eye of the law they have rights of appropriation, but in fact -they have not the chance of providing means for a free moral life, -of developing and giving reality or expression to a good will, an -interest in social well-being. A man who possesses nothing but his -powers of labour and who has to sell these to a capitalist for bare -daily maintenance, might as well, in respect of the ethical purposes -which the possession of property should serve, be denied rights -of property altogether. Is the existence of so many men in this -position, and the apparent liability of many more to be brought to -it by a general fall of wages, if increase of population goes along -with decrease in the productiveness of the earth, a necessary result -of the emancipation of the individual and the free play given to -powers of appropriation? or is it an evil incident, which may yet be -remedied, of that historical process by which the development of the -rights of property has been brought about, but in which the agents -have for the most part had no moral objects in view at all? - -221. Let us first be clear about the points in which the conditions -of property, as it actually exists, are at variance with property -according to its idea or as it should be. The rationale of property, -as we have seen, is that everyone should be secured by society in the -power of getting and keeping the means of realising a will, which -in possibility is a will directed to social good. Whether anyone's -will is actually and positively so directed, does not affect his -claim to the power. This power should be secured to the individual -irrespectively of the use which he actually makes of it, so long as -he does not use it in a way that interferes with the exercise of -like power by another, on the ground that its uncontrolled exercise -is the condition of attainment by man of that free morality which is -his highest good. It is not then a valid objection to the manner in -which property is possessed among us, that its holders constantly -use it in a way demoralising to themselves and others, any more than -such misuse of any other liberties is an objection to securing men in -their possession. Only then is property held in a way inconsistent -with its idea, and which should, if possible, be got rid of, when the -possession of property by one man interferes with the possession of -property by another; when one set of men are secured in the power of -getting and keeping the means of realising their will, in such a way -that others are practically denied the power. In that case it may -truly be said that 'property is theft.' The rationale of property, -in short, requires that everyone who will conform to the positive -condition of possessing it, viz. labour, and the negative condition, -viz. respect for it as possessed by others, should, so far as social -arrangements can make him so, be a possessor of property himself, -and of such property as will at least enable him to develope a sense -of responsibility, as distinct from mere property in the immediate -necessaries of life. - -222. But then the question arises, whether the rationale of property, -as thus stated, is not inconsistent with the unchecked freedom of -appropriation, or freedom of appropriation checked only by the -requirement that the thing appropriated shall not have previously -been appropriated by another. Is the requirement that every honest -man should be a proprietor to the extent stated, compatible with -any great inequalities of possession? In order to give effect to -it, must we not remove those two great sources of the inequality of -fortunes, (1) freedom of bequest, and the other arrangements by which -the profits of the labour of several generations are accumulated -on persons who do not labour at all; (2) freedom of trade, of -buying in the cheapest market and selling in the dearest, by which -accumulated profits of labour become suddenly multiplied in the -hands of a particular proprietor? Now clearly, if an inequality of -fortunes, of the kind which naturally arises from the admission of -these two forms of freedom, necessarily results in the existence of a -proletariate, practically excluded from such ownership as is needed -to moralise a man, there would be a contradiction between our theory -of the right of property and the actual consequence of admitting the -right according to the theory; for the theory logically necessitates -freedom both in trading and in the disposition of his property by the -owner, so long as he does not interfere with the like freedom on the -part of others; and in other ways as well its realisation implies -inequality. - -223. Once admit as the idea of property that nature should be -progressively adapted to the service of man by a process in which -each, while working freely or for himself, i.e. as determined by -a conception of his own good, at the same time contributes to the -social good, and it will follow that property must be unequal. If we -leave a man free to realise the conception of a possible well-being, -it is impossible to limit the effect upon him of his desire to -provide for his future well-being, as including that of the persons -in whom he is interested, or the success with which at the prompting -of that desire he turns resources of nature to account. Considered -as representing the conquest of nature by the effort of free and -variously gifted individuals, property must be unequal; and no less -must it be so if considered as a means by which individuals fulfil -social functions. As we may learn from Aristotle, those functions -are various and the means required for their fulfilment are various. -The artist and man of letters require different equipment and -apparatus from the tiller of land and the smith. Either then the -various apparatus needed for various functions must be provided for -individuals by society, which would imply a complete regulation of -life incompatible with that highest object of human attainment, a -free morality; or we must trust for its provision to individual -effort, which will imply inequality between the property of different -persons. - -224. The admission of freedom of trade follows from the same -principle. It is a condition of the more complete adaptation of -nature to the service of man by the free effort of individuals. 'To -buy in the cheapest and sell in the dearest market' is a phrase which -may no doubt be used to cover objectionable transactions, in which -advantage is taken of the position of sellers who from circumstances -are not properly free to make a bargain. It is so employed when the -cheapness of buying arises from the presence of labourers who have -no alternative but to work for 'starvation wages.' But in itself it -merely describes transactions in which commodities are bought where -they are of least use and sold where they are of most use. The trader -who profits by the transaction is profiting by what is at the same -time a contribution to social well-being. - -In regard to the freedom which a man should be allowed in disposing -of his property by will or gift, the question is not so simple. The -same principle which forbids us to limit the degree to which a man -may provide for his future, forbids us to limit the degree to which -he may provide for his children, these being included in his forecast -of his future. It follows that the amount which children may inherit -may not rightly be limited; and in this way inequalities of property, -and accumulations of it to which possessors have contributed -nothing by their own labour, must arise. Of course the possessor -of an estate, who has contributed nothing by his own labour to its -acquisition, may yet by his labour contribute largely to the social -good, and a well-organised state will in various ways elicit such -labour from possessors of inherited wealth. Nor will it trust merely -to encouraging the voluntary fulfilment of social functions, but -will by taxation make sure of some positive return for the security -which it gives to inherited wealth. But while the mere permission -of inheritance, which seems implied in the permission to a man to -provide unlimitedly for his future, will lead to accumulations of -wealth, on the other hand, if the inheritance is to be equal among -all children, and, failing children, is to pass to the next of kin, -the accumulation will be checked. It is not therefore the right of -inheritance, but the right of bequest, that is most likely to lead to -accumulation of wealth, and that has most seriously been questioned -by those who hold that universal ownership is a condition of moral -well-being. Is a proprietor to be allowed to dispose of his property -as he likes among his children (or, if he has none, among others), -making one very rich as compared with the others, or is he to be -checked by a law requiring approximately equal inheritance? - -225. As to this, consider that on the same principle on which we -hold that a man should be allowed to accumulate as he best can for -his children, he should have discretion in distributing among his -children. He should be allowed to accumulate, because in so doing he -at once expresses and developes the sense of family responsibility, -which naturally breeds a recognition of duties in many other -directions. But if the sense of family responsibility is to have -free play, the man must have due control over his family, and this -he can scarcely have if all his children as a matter of necessity -inherit equally, however undutiful or idle or extravagant they may -be. For this reason the true theory of property would seem to favour -freedom of bequest, at any rate in regard to wealth generally. There -may be special reasons, to be considered presently, for limiting it -in regard to land. But as a general rule, the father of a family, if -left to himself and not biassed by any special institutions of his -country, is most likely to make that distribution among his children -which is most for the public good. If family pride moves him to endow -one son more largely than the rest, in order to maintain the honour -of his name, family affection will keep this tendency within limits -in the interest of the other children, unless the institutions of his -country favour the one tendency as against the other. And this they -will do if they maintain great dignities, e.g. peerages, of which the -possession of large hereditary wealth is virtually the condition, and -if they make it easy, when the other sons have been impoverished for -the sake of endowing the eldest, to maintain the former at the public -expense by means of appointments in the church or state. - -It must be borne in mind, further, that the freedom of bequest which -is to be justified on the above principles must not be one which -limits that freedom in a subsequent generation, It must therefore be -distinguished from the power of settlement allowed by English law and -constantly exercised in dealing with landed estate; for this power, -as exercised by the landowning head of a family in one generation, -prevents the succeeding head of the family from being free to make -what disposition he thinks best among his children and ties up -the succession to the estate to his eldest son. The practice of -settlement in England, in short, as applied to landed estate, cancels -the freedom of bequest in the case of most landowners and neutralises -all the dispersive tendency of family affection, while it maintains -in full force all the accumulative tendency of family pride. This, -however, is no essential incident of a system in which the rights of -individual ownership are fully developed, but just the contrary. - -226. The question then remains, whether the full development of -those rights, as including that of unlimited accumulation of wealth -by the individual and of complete freedom of bequest on his part, -necessarily carries with it the existence of a proletariate, nominal -owners of their powers of labour, but in fact obliged to sell -these on such terms that they are owners of nothing beyond what is -necessary from day to day for the support of life, and may at any -time lose even that, so that, as regards the moral functions of -property, they may be held to be not proprietors at all; or whether -the existence of such a class is due to causes only accidentally -connected with the development of rights of individual property. - -We must bear in mind (1) that the increased wealth of one man does -not naturally mean the diminished wealth of another. We must not -think of wealth as a given stock of commodities of which a larger -share cannot fall to one without taking from the share that falls -to another. The wealth of the world is constantly increasing in -proportion as the constant production of new wealth by labour exceeds -the constant consumption of what is already produced, There is no -natural limit to its increase except such as arises from the fact -that the supply of the food necessary to sustain labour becomes more -difficult as more comes to be required owing to the increase in the -number of labourers, and from the possible ultimate exhaustion of the -raw materials of labour in the world. Therefore in the accumulation -of wealth, so far as it arises from the saving by anyone of the -products of his labour, from his bequest of this capital to another -who farther adds to it by saving some of the profit which the capital -yields, as employed in the payment for labour or in trade either by -the capitalist himself or someone to whom he lends it, and from the -continuation of this process through generations, there is nothing -which tends to lessen for anyone else the possibilities of ownership. -On the contrary, supposing trade and labour to be free, wealth -must be constantly distributed throughout the process in the shape -of wages to labourers and of profits to those who mediate in the -business of exchange. - -227. It is true that the accumulation of capital naturally leads -to the employment of large masses of hired labourers. But there -is nothing in the nature of the case to keep these labourers in -the condition of living from hand to mouth, to exclude them from -that education of the sense of responsibility which depends on the -possibility of permanent ownership. There is nothing in the fact -that their labour is hired in great masses by great capitalists to -prevent them from being on a small scale capitalists themselves. In -their position they have not indeed the same stimulus to saving, or -the same constant opening for the investment of savings, as a man -who is αὐτουργός; [1] but their combination in work gives them every -opportunity, if they have the needful education and self-discipline, -for forming societies for the investment of savings. In fact, as -we know, in the well-paid industries of England the better sort -of labourers do become capitalists, to the extent often of owning -their houses and a good deal of furniture, of having an interest in -stores, and of belonging to benefit-societies through which they -make provision for the future. It is not then to the accumulation -of capital, but to the condition, due to antecedent circumstances -unconnected with that accumulation, of the men with whom the -capitalist deals and whose labour he buys on the cheapest terms, that -we must ascribe the multiplication in recent times of an impoverished -and reckless proletariate. - -[1] [Greek αὐτουργός (autourgos) = yeoman farmer, literally one who -works for himself Tr.] - -228. It is difficult to summarise the influences to which is due -the fact that in all the chief seats of population in Europe the -labour-market is constantly thronged with men who are too badly -reared and fed to be efficient labourers; who for this reason, and -from the competition for employment with each other, have to sell -their labour very cheap; who have thus seldom the means to save, and -whose standard of living and social expectation is so low that, if -they have the opportunity of saving, they do not use it, and keep -bringing children into the world at a rate which perpetuates the -evil. It is certain, however, that these influences have no necessary -connection with the maintenance of the right of individual property -and consequent unlimited accumulation of capital, though they no -doubt are connected with that régime of force and conquest by which -existing governments have been established,--governments which do not -indeed create the rights of individual property, any more than other -rights, but which serve to maintain them. It must always be borne -in mind that the appropriation of land by individuals has in most -countries--probably in all where it approaches completeness--been -originally effected, not by the expenditure of labour or the results -of labour on the land, but by force. The original landlords have been -conquerors. - -229. This has affected the condition of the industrial classes in at -least two ways: (1) When the application of accumulated capital to -any work in the way of mining or manufacture has created a demand for -labour, the supply has been forthcoming from men whose ancestors, if -not themselves, were trained in habits of serfdom; men whose life has -been one of virtually forced labour, relieved by church--charities -or the poor law (which in part took the place of these charities); -who were thus in no condition to contract freely for the sale of -their labour, and had nothing of that sense of family--responsibility -which might have made them insist on having the chance of saving. -Landless countrymen, whose ancestors were serfs, are the parents of -the proletariate of great towns. (2) Rights have been allowed to -landlords, incompatible with the true principle on which rights of -property rest, and tending to interfere with the development of the -proprietorial capacity in others. The right to freedom in unlimited -acquisition of wealth, by means of labour and by means of the saving -and successful application of the results of labour, does not imply -the right of anyone to do as he likes with those gifts of nature, -without which there would be nothing to spend labour upon. The earth -is just as much an original natural material necessary to productive -industry, as are air, light, and water, but while the latter from -the nature of the case cannot be appropriated, the earth can be and -has been. The only justification for this appropriation, as for any -other, is that it contributes on the whole to social well-being; that -the earth as appropriated by individuals under certain conditions -becomes more serviceable to society as a whole, including those who -are not proprietors of the soil, than if it were held in common. The -justification disappears if these conditions are not observed; and -from government having been chiefly in the hands of appropriators -of the soil, they have not been duly observed. Landlords have been -allowed to 'do what they would with their own,' as if land were -merely like so much capital, admitting of indefinite extension. -The capital gained by one is not taken from another, but one man -cannot acquire more land without others having less; and though a -growing reduction in the number of landlords is not necessarily -a social evil, if it is compensated by the acquisition of other -wealth on the part of those extruded from the soil, it is only not -an evil if the landlord is prevented from so using his land as to -make it unserviceable to the wants of men (e.g. by turning fertile -land into a forest), and from taking liberties with it incompatible -with the conditions of general freedom and health; e.g. by clearing -out a village and leaving the people to pick up house-room as they -can elsewhere (a practice common under the old poor-law, when the -distinction between close and open villages grew up), or, on the -other hand, by building houses in unhealthy places or of unhealthy -structure, by stopping up means of communication, or forbidding -the erection of dissenting chapels. In fact the restraints which -the public interest requires to be placed on the use of land if -individual property in it is to be allowed at all, have been pretty -much ignored, while on the other hand, that full development of its -resources, which individual ownership would naturally favour, has -been interfered with by laws or customs which, in securing estates to -certain families, have taken away the interest, and tied the hands, -of the nominal owner--the tenant for life--in making the most of his -property. - -230. Thus the whole history of the ownership of land in Europe has -been of a kind to lead to the agglomeration of a proletariate, -neither holding nor seeking property, wherever a sudden demand has -arisen for labour in mines or manufactures. This at any rate was the -case down to the epoch of the French Revolution; and this, which -brought to other countries deliverance from feudalism, left England, -where feudalism had previously passed into unrestrained landlordism, -almost untouched. And while those influences of feudalism and -landlordism which tend to throw a shiftless population upon the -centres of industry have been left unchecked, nothing till quite -lately was done to give such a population a chance of bettering -itself, when it had been brought together. Their health, housing, -and schooling were unprovided for. They were left to be freely -victimised by deleterious employments, foul air, and consequent -craving for deleterious drinks. When we consider all this, we shall -see the unfairness of laying on capitalism or the free development -of individual wealth the blame which is really due to the arbitrary -and violent manner in which rights over land have been acquired and -exercised, and to the failure of the state to fulfil those functions -which under a system of unlimited private ownership are necessary to -maintain the conditions of a free life. - -231. Whether, when those functions have been more fully recognised -and executed, and when the needful control has been established in -the public interest over the liberties which landlords may take in -the use of their land, it would still be advisable to limit the right -of bequest in regard to land, and establish a system of something -like equal inheritance, is a question which cannot be answered on -any absolute principle. It depends on circumstances. Probably the -question should be answered differently in a country like France or -Ireland, where the most important industries are connected directly -with the soil, and in one like England where they are not so. The -reasons must be cogent which could justify that interference with -the control of the parent over his family, which seems to be implied -in the limitation of the power of bequeathing land when the parent's -wealth lies solely in land, and which arises, be it remembered, -in a still more mischievous way from the present English practice -of settling estates. But it is important to bear in mind that the -question in regard to land stands on a different footing from that -in regard to wealth generally, owing to the fact that land is a -particular commodity limited in extent, from which alone can be -derived the materials necessary to any industry whatever, on which -men must find house-room if they are to find it at all, and over -which they must pass in communicating with each other, however much -water or even air may be used for that purpose. These are indeed not -reasons for preventing private property in land or even free bequest -of land, but they necessitate a special control over the exercise of -rights of property in land, and it remains to be seen whether that -control can be sufficiently established in a country where the power -of great estates has not first been broken, as in France, by a law of -equal inheritance. - -232. To the proposal that 'unearned increment' in the value of the -soil, as distinct from value produced by expenditure of labour and -capital, should be appropriated by the state, though fair enough in -itself, the great objection is that the relation between earned and -unearned increment is so complicated, that a system of appropriating -the latter to the state could scarcely be established without -lessening the stimulus to the individual to make the most of the -land, and thus ultimately lessening its serviceableness to society. - - O. _THE RIGHT OF THE STATE IN REGARD TO THE FAMILY._ - -233. In the consideration of those rights which do not arise out of -the existence of the state, but which are antecedent to it (though -of course implying society in some form), and which it is its office -to enforce, we now come to family or household rights--also called, -though not very distinctively, rights in private relations--of which -the most important are the reciprocal rights of husband and wife, -parent and child. The distinctive thing about these is that they are -not merely rights of one person as against all or some other persons -over some thing, or to the performance of or abstention from some -action; they are rights of one person as against all other persons -to require or prevent a certain behaviour on the part of another. -Right to free life is a right on the part of any and every person to -claim from all other persons that course of action or forbearance -which is necessary to his free life. It is a right against all the -world, but not a right over any particular thing or person. A right -of property, on the other hand, is a right against all the world, and -also over a particular thing; a right to claim from any and every -one certain actions and forbearances in respect of a particular -thing (hence called 'jus in rem'). A right arising from contract, -unlike the right of property or the right of free life, is not a -right as against all the world, but a right as against a particular -person or persons contracted with to claim a certain performance or -forbearance. It may or may not be a right over a particular thing, -but as it is not necessarily so, while it is a right against a -particular person or persons in distinction from all the world, it -is called 'jus in personam' as distinct from 'in rem.' The right of -husband over wife and that of parent over children (or _vice versa_) -differs from the right arising out of contract, inasmuch as it is -not merely a right against the particular person contracted with, -but a right against all the world. In this respect it corresponds -to the right of property; but differs again from this, since it is -not a right over a thing but over a person. It is a right to claim -certain acts or forbearances from all other persons in respect of a -particular person: or (more precisely) to claim a certain behaviour -from a certain person, and at the same time to exclude all others -from claiming it. Just because this kind of right is a right over a -person, it is always reciprocal as between the person exercising it -and the person over whom it is exercised. All rights are reciprocal -as between the person exercising them and the person against whom -they are exercised. My claim to the right of free life implies a -like claim upon me on the part of those from whom I claim acts and -forbearances necessary to my free life. My claim upon others in -respect of the right of property, or upon a particular person in -respect of an action which he has contracted to perform, implies -the recognition of a corresponding claim upon me on the part of all -persons or the particular party to the contract. But the right of a -husband in regard to his wife not merely implies that all those as -against whom he claims the right have a like claim against him, but -that the wife over whom he asserts the right has a right, though not -a precisely like right, over him. The same applies to the right of a -father over a son, and of a master over a servant. - -234. A German would express the peculiarity of the rights now under -consideration by saying that, not only are persons the subjects of -them, but persons are the objects of them. By the 'subject' of rights -he would mean the person exercising them or to whom they belong; -by 'object' that in respect of which the rights are exercised. The -piece of land or goods which I own is the 'object' of the right -of property, the particular action which one person contracts to -perform for another is the 'object' of a right of contract; and in -like manner the person from whom I have a right to claim certain -behaviour, which excludes any right on the part of anyone else to -claim such behaviour from him or her, is the 'object' of the right. -But English writers commonly call that the subject of a right which -the Germans would call the object. By the subject of a right of -property they would not mean the person to whom the right belongs, -but the thing over which, or in respect of which, the right exists. -And in like manner, when a right is exercised over, or in respect of -a person, such as a wife or a child, they would call that person, and -not the person exercising the right, the subject of it. By the object -of a right, on the other hand, they mean the action or forbearance -which someone has a right to claim. The object of a right arising -out of contract would be the action which the person contracting -agrees to perform. The object of a connubial right would not be, as -according to German usage, the person in regard to, or over, whom -the right is exercised--that person would be the subject of the -right--but either the behaviour which the person possessing the right -is entitled to claim from that person, or the forbearances in respect -to that person, which he is entitled to claim from others. (Austin, -I. 378 and II. 736.) Either usage is justifiable in itself. The only -matter of importance is not to confuse them. There is a convenience -in expressing the peculiarity of family rights by saying, according -to the sense of the terms adopted by German writers, that not only -are persons subjects of them but persons are objects of them. It is -in this sense that I shall use these terms, if at all. - -235. So much for the peculiarity of family rights, as distinct from -other rights. The distinction is not merely a formal one. From the -fact that these rights have persons for their objects, there follow -important results, as will appear, in regard to the true nature -of the right, to the manner in which it should be exercised. The -analytical, as distinct from the historical, questions which have to -be raised with reference to family rights correspond to those raised -with reference to rights of property. As we asked what in the nature -of man made appropriation possible for him, so now we ask (1) what -it is in the nature of man that makes him capable of family life. As -we asked next how appropriations came to be so sanctioned by social -recognition as to give rise to rights of property, so now we have to -ask (2) how certain powers exercised by a man, certain exemptions -which he enjoys from the interference of others, in his family life, -come to be recognised as rights. And as we inquired further how far -the actual institutions of property correspond with the idea of -property as a right which for social good should be exercised, so now -we have to inquire (3) into the proper adjustment of family rights, -as determined by their idea; in what form these rights should be -maintained; bearing in mind _(a)_ that, like all rights, their value -depends on their being conditions of which the general observance is -necessary to a free morality, and __(b)__ their distinctive character -as rights of which, in the sense explained, persons are the objects. - -236. (1) We saw that appropriation of that kind which, when secured -by a social power, becomes property, supposes an effort on the part -of the individual to give reality to a conception of his own good, -as a whole or as something permanent, in distinction from the mere -effort to satisfy a want as it arises. The formation of family life -supposes a like effort, but it also supposes that in the conception -of his own good to which a man seeks to give reality there is -included a conception of the well-being of others, connected with -him by sexual relations or by relations which arise out of these. He -must conceive of the well-being of these others as a permanent object -bound up with his own, and the interest in it as thus conceived must -be a motive to him over and above any succession of passing desires -to obtain pleasure from, or give pleasure to, the others; otherwise -there would be nothing to lead to the establishment of a household, -in which the wants of the wife or wives are permanently provided -for, in the management of which a more or less definite share is -given to them (more definite, indeed, as approach is made to a -monogamistic system, but not wholly absent anywhere where the wife is -distinguished from the female), and upon which the children have a -recognised claim for shelter and sustenance. - -237. No doubt family life as we know it is an institution of gradual -growth. It may be found in forms where it is easy to ignore the -distinction between it and the life of beasts. It is possible that -the human beings with whom it first began--beings 'human' because -capable of it--may have been 'descended' from animals not capable of -it, i.e. they may have been connected with such animals by certain -processes of generation. But this makes no difference in the nature -of the capacity itself, which is determined not by a past history -but by its results, its functions, that of which it is a capacity. -As the foundation of any family life, in the form in which we know -it, implies that upon the mere sexual impulse there has supervened on -the part of the man a permanent interest in a woman as a person with -whom his own well-being is united, and a consequent interest in the -children born of her, so in regard to every less perfect form out of -which we can be entitled to say that the family life, as we know it, -has developed, we must be also entitled to say that it expresses some -interest which is in principle identical with that described, however -incompletely it has emerged from lower influences. - -238. (2) Such an interest being the basis of family relations, it -is quite intelligible that everyone actuated by the interest should -recognise, and be recognised by, everyone else to whom he ascribes -an interest like his own, as entitled to behave towards the objects -of the interest--towards his wife and children--in a manner from -which everyone else is excluded; that there should thus come to be -rights in family relations to a certain privacy in dealing with them; -rights to deal with them as his alone and not another's; claims, -ratified by the general sense of their admission being for the common -good, to exercise certain powers and demand certain forbearances -from others, in regard to wife and children. It is only indeed at an -advanced stage of reflection that men learn to ascribe to other men, -simply as men, the interests which they experience themselves; and -hence it is at first only within narrow societies that men secure -to each other the due privileges and privacies of family life. In -others of the same kin or tribe they can habitually imagine an -interest like that of which each feels his own family life to be -the expression, and hence in them they spontaneously respect family -rights; but they cannot thus practically think themselves into the -position of a stranger, and hence towards him they do not observe the -same restraints. They do not regard the women of another nation as -sacred to the husbands and families of that nation. But that power -of making another's good one's own, which in the more intense and -individualised form is the basis of family relations, must always at -the same time exist in that more diffused form in which it serves as -the basis of a society held together by the recognition of a common -good. Wherever, therefore, the family relations exist, there is -sure to exist also a wider society which by its authority gives to -the powers exercised in those relations the character of rights. By -what process the relations of husband and wife and the institution -of the household may have come to be formed among descendants of a -single pair, it is impossible to conceive or to discover, but in -fact we find no trace in primitive history of households except as -constituents of a clan recognising a common origin; and it is by the -customs of the clan, founded on the conception of a common good, that -those forbearances on the part of members of one household in dealing -with another, which are necessary to the privacy of the several -households, are secured. - -239. The history of the development of family life is the history of -the process _(a)_ by which family rights have come to be regarded -as independent of the special custom of a clan and the special -laws of a state, as rights which all men and women, as such, are -entitled to. This, however, characterises the history of all rights -alike. It is a history farther _(b)_ of the process by which the -true nature of these rights has come to be recognised, as rights -over persons; rights of which persons are the objects, and which -therefore imply reciprocal claims on the part of those over whom they -are exercised and of those who exercise them. The establishment of -monogamy, the abolition of 'patria potestas' in its various forms, -the 'emancipation of women' (in the proper sense of the phrase), are -involved in these two processes. The principles (1) that all men and -all women are entitled to marry and form households, (2) that within -the household the claims of the husband and wife are throughout -reciprocal, cannot be realised without carrying with them not merely -monogamy, but the removal of those faulty relations between men and -women which survive in countries where monogamy is established by law. - -240. Under a system of polygamy, just so far as it is carried out, -there must be men who are debarred from marrying. It can only exist, -indeed, alongside of a slavery, which excludes masses of men from -the right of forming a family. Nor does the wife, under a polygamous -system, though she ostensibly marries, form a household, or become -the co-ordinate head of a family, at all. The husband alone is -head of the family and has authority over the children. The wife, -indeed, who for the time is the favourite, may practically share -the authority, but even she has no equal and assured position. The -'consortium omnis vitae,' the 'individua vitae consuetudo,' which -according to the definition in the Digest is an essential element in -marriage, is not hers. [1] [2] - -And further as the polygamous husband requires a self-restraint -from his wife which he does not put on himself, he is treating her -unequally. He demands a continence from her which, unless she is -kept in the confinement of slavery, can only rest on the attachment -of a person to a person and on a personal sense of duty, and at the -same time is practically ignoring the demand, which this personal -attachment on her part necessarily carries with it, that he should -keep himself for her as she keeps herself for him. The recognition of -children as having claims upon their parents reciprocal to those of -the parents over them, equally involves the condemnation of polygamy. -For these claims can only be duly satisfied, the responsibilities of -father and mother towards the children (potentially persons) whom -they have brought into the world can only be fulfilled, if father and -mother jointly take part in the education of the children; if the -children learn to love and obey father and mother as one authority. -But if there is no permanent 'consortium vitae' of one husband with -one wife, this joint authority over the children becomes impossible. -The child, when its physical dependence on the mother is over, ceases -to stand in any special relation to her. She has no recognised duties -to him, or he to her. These lie between him and his father only, and -just because the father's interests are divided between the children -of many wives, and because these render their filial offices to -the father separately, not to father and mother jointly, the true -domestic training is lost. - -[1] 'Nuptiae sunt conjunctio maris et feminae, consortium omnis -vitae, divini et humani juris communicatio' _Digest_, xxiii. 2, -1. 'Matrimonium est viri et mulieris conjunctio individuam vita -consuetudinem continens.' Inst., i.9.2. (Quoted by Trendelenburg, -_Naturrecht_, p. 282.) - -[2] [Latin consortium omnis vitae = partnership for life individua -vitae consuetudo = unbroken companionship of life Tr] - -241. Monogamy, however, may be established, and an advance so far -made towards the establishment of a due reciprocity between husband -and wife, as well as towards a fulfilment of the responsibilities -incurred in bringing children into the world, while yet the true -claims of men in respect of women, and of women in respect of men, -and of children upon their parents, are far from being generally -realised. Wherever slavery exists alongside of monogamy, on the one -side people of the slave class are prevented from forming family -ties, and on the other those people who are privileged to marry, -though they are confined to one wife, are constantly tempted to be -false to the true monogamistic idea by the opportunity of using women -as chattels to minister to their pleasures. The wife is thus no more -than an institution, invested with certain dignities and privileges, -for the continuation of the family; a continuation, which under pagan -religions is considered necessary for the maintenance of certain -ceremonies, and to which among ourselves an importance is attached -wholly unconnected with the personal affection of the man for the -wife. [1] When slavery is abolished, and the title of all men and -women equally to form families is established by law, the conception -of the position of the wife necessarily rises. The ἑταίρα and παλλακή -[2] cease at any rate to be recognised accompaniments of married -life, and the claim of the wife upon the husband's fidelity, as -reciprocal to his claim upon hers, becomes established by law. - -[1] Her position among the Greeks is well illustrated by a passage -from the speech of Demosthenes (?) against Neaera, Sect. 122 (quoted -by W. E. Hearn, _The Aryan Household_, p. 71). τὰς μὲν γὰρ ἑταίρας -ἡδονῆς ἕνεκʹ ἔχομεν, τὰς δὲ παλλακὰς τῆς καθʹ ἡμέραν θεραπείας του -σώματος, τὰς δὲ γυναῖκας τοῦ παιδοποιεῖσθαι γνησίως καὶ τῶν ἔνδον -φύλακα πιστὴν ἔχειν (tas men gar hetairas hedones henek echomen, tas -de pallakas tes kath' hemeran therapeias tou somatos, tas de gynaikas -tou paidopoieisthai gnesios kai ton endon phylaka pisten echein). -[The query as to Demosthenes' authorship is in Green's text. Hearn -translates this passage: Mistresses we keep for pleasure, concubines -for daily attendance on our persons, wives to bear us legitimate -children and to be our faithful housekeepers. Tr] - -[2] [Greek ἑταίρα (hetaira) = courtesan, παλλακή (pallake) = -concubine. Tr] - -242. Thus that marriage should only be lawful with one wife, that it -should be for life, that it should be terminable by the infidelity -of either husband or wife, are rules of right; not of morality, as -such, but of right. Without such rules the rights of the married -persons are not maintained. Those outward conditions of family life -would not be secured to them, which are necessary on the whole for -the development of a free morality. Polygamy is a violation of the -rights, (1) of those who through it are indirectly excluded from -regular marriage, and thus from the moral education which results -from this; (2) of the wife, who is morally lowered by exclusion -from her proper position in the household and by being used, more -or less, as the mere instrument of the husband's pleasure; (3) -of the children, who lose the chance of that full moral training -which depends on the connected action of father and mother. The -terminability of marriage at the pleasure of one of the parties to it -(of its terminability at the desire of both we will speak presently) -is a violation of the rights at any rate of the unconsenting party, -on the grounds _(a)_ that liability to it tends to prevent marriage -from becoming that 'individua vitae consuetudo' which gives it its -moral value, and _(b)_ that, when the marriage is dissolved, the -woman, just in proportion to her capacity for self-devotion and the -degree to which she has devoted herself to her original husband, is -debarred from forming that 'individua vitae consuetudo' again, and -thus crippled in her moral possibilities. It is a violation of the -rights of children for the same reason for which polygamy is so. - -On the other hand, that the wife should be bound indissolubly by -the marriage-tie to an unfaithful husband (or _vice versa_), is a -violation of the right of wife (or husband, as the case may be), -because on the one hand the restraint which makes her liable to be -used physically as the instrument of the husband's pleasures, when -there is no longer reciprocal devotion between them, is a restraint -which (except in peculiar cases) renders moral elevation impossible; -and on the other, she is prevented from forming such a true marriage -as would be, according to ordinary rules, the condition of the -realisation of her moral capacities. Though the husband's right -to divorce from an unfaithful wife has been much more thoroughly -recognised than the wife's to divorce from an unfaithful husband, he -would be in fact less seriously wronged by the inability to obtain a -divorce, for it is only the second of the grounds just stated that -fully applies to him. The rights of the children do not seem so -plainly concerned in the dissolution of a marriage to which husband -or wife has been unfaithful. In some cases the best chance for them -might seem to lie in the infidelities being condoned and an outward -family peace re-established. But that their rights are violated by -the infidelity itself is plain. In the most definite way it detracts -from their possibilities of goodness. Without any consent on their -part, quite independently of any action of their own will, they are -placed by it in a position which tends--though special grace may -counteract it--to put the higher kinds of goodness beyond their reach. - -243. These considerations suggest some further questions which may be -discussed under the following heads. (1) If infidelity in marriage is -a violation of rights in the manner stated, and if (as it must be) it -is a wilful and knowing violation, why is it not treated as a crime, -and, like other such violations of rights, punished by the state -in order to the better maintenance of rights? (2) Should any other -reason but the infidelity of husband or wife be allowed for the legal -dissolution of the marriage-tie? (3) How are the rights connected -with marriage related to the morality of marriage? - -(1) There is good reason why the state should not take upon itself -to institute charges of adultery, but leave them to be instituted -by the individuals whose rights the adultery violates. The reasons -ordinarily alleged would be, _(a)_ the analogy of ordinary breaches -of contract, against which the state leaves it to the individual -injured to set the law in motion; _(b)_ the practical impossibility -of preventing adultery through the action of the functionaries of -the state. The analogy, however, from ordinary breaches of contract -does not really hold. In the first place, though marriage involves -contract, though without contract there can be no marriage, yet -marriage at once gives rise to rights and obligations of a kind -which cannot arise out of contract, in particular to obligations -towards the children born of the marriage. These children, at any -rate, are in no condition to seek redress--even if from the nature -of the case redress could be had--for the injuries inflicted on -them by a parent's adultery, as a person injured by a breach of -contract can seek redress for it. Again, though the state leaves -it to the individual injured by a breach of contract to institute -proceedings for redress, if the breach involves fraud, it, at any -rate in certain cases, treats the fraud as a crime and punishes. Now -in every breach of the marriage-contract by adultery there is that -which answers to fraud in the case of ordinary breach of contract. -The marriage-contract is broken knowingly and intentionally. If there -were no reason to the contrary, then, it would seem that the state, -though it might leave to the injured individuals the institution of -proceedings against adultery, should yet treat adultery as a crime -and seek to prevent it by punishment in the interest of those whose -virtual rights are violated by it, though not in the way of breach of -contract. But there are reasons to the contrary--reasons that arise -out of the moral purposes served by the marriage-tie--which make it -desirable both that it should be at the discretion of the directly -injured party whether a case of adultery should be judicially dealt -with at all, and that in no case should penal terror be associated -with such a violation of the marriage-bond Under ordinary conditions, -it is a public injury that a violation of his rights should be -condoned by the person suffering it. If the injured individual were -likely to fail in the institution of proceedings for his own redress -or defence, the public interest would require that the matter should -be taken out of his hands. But if an injured wife or husband is -willing to condone a breach of his or her rights through adultery, -it is generally best that it should be condoned. That married life -should be continued in spite of anything like dissoluteness on -the part of husband or wife, is no doubt undesirable. The moral -purposes which married life should serve cannot be served, either -for the married persons themselves or for the children, under such -conditions. On the other hand, the condonation of a single offence -would generally be better for all concerned than an application for -divorce. The line cannot be drawn at which, with a view to the higher -ends which marriage should serve, divorce becomes desirable. It is -therefore best that the state, while uniformly allowing the right of -divorce where the marriage-bond has been broken by adultery (since -otherwise the right of everyone to form a true marriage, a marriage -which shall be the basis of family life, is neutralised,) and taking -care that procedure for divorce be cheap and easy, should leave the -enforcement of the right to the discretion of individuals. - -244. On similar grounds, it is undesirable that adultery as such -should be treated as a crime, that penal terror should be associated -with it. Though rights, in the strict sense, undoubtedly arise out -of marriage, though marriage has thus its strictly legal aspect, it -is undesirable that this legal aspect should become prominent. It -may suffer in respect of its higher moral purposes, if the element -of force appears too strongly in the maintenance of the rights to -which it gives rise. If a husband who would otherwise be false to -the marriage-bond is kept outwardly faithful to it by fear of the -punishment which might attend its breach, the right of the wife and -children is indeed so far protected, but is anything gained for those -moral ends, for the sake of which the maintenance of these rights -is alone of value? The man in whom disloyal passion is neutralised -by fear of punishment will contribute little in his family life to -the moral development of himself, his wife, or his children. If he -cannot be kept true by family affection and sympathy with the social -disapprobation attaching to matrimonial infidelity (and unless it is -a matter of social disapprobation no penalties will be effectually -enforced against it), he will not be kept true in a way that is of -any value to those concerned by fear of penalties. In other words, -the rights that arise out of marriage are not of a kind which can in -their essence be protected by associating penal terror with their -violation, as the rights of life and property can be. They are not -rights to claim mere forbearances or to claim the performance of -certain outward actions, by which a right is satisfied irrespectively -of the disposition with which the act is done. They are claims which -cannot be met without a certain disposition on the part of the person -upon whom the claim rests, and that disposition cannot be enforced. -The attempt to enforce the outward behaviour in order to satisfy the -claim, which is a claim not to the outward behaviour merely but to -this in connection with a certain disposition, defeats its own end. - -245. For the protection, therefore, of the rights of married persons -and their children against infidelity, it does not appear that the -law can do more than secure facilities of divorce in the case of -adultery. This indeed is not in itself a protection against the wrong -involved in adultery, but rather a deliverance from the further -wrong to the injured husband or wife and to the children that would -be involved in the continuance of any legal claim over them on the -part of the injurer. But indirectly it helps to prevent the wrong -being done by bringing social disapprobation to bear on cases of -infidelity, and thus helping to keep married persons faithful through -sympathy with the disapprobation of which they feel that they would -be the objects when they imagine themselves unfaithful. The only -other effectual way in which the state can guard against the injuries -in question is by requiring great precaution and solemnity in the -contraction of marriages. This it can do by insisting on the consent -of parents to the marriage of all minors, exacting a long notice -(perhaps even a preliminary notice of betrothal), and, while not -preventing civil marriage, by encouraging the celebration of marriage -in the presence of religious congregations and with religious rites. - -246. Question (2) is one that does not admit of being answered on -any absolute principle We must bear in mind that all rights--in -idea or as they should be--are relative to moral ends. The ground -for securing to individuals in respect of the marriage-tie certain -powers as rights, is that in a general way they are necessary to -the possibility of a morally good life, either directly to the -persons exercising them or to their children. The more completely -marriage is a 'consortium omnis vitae' in the sense of a unity in -all interests and for the whole of a lifetime, the more likely are -the external conditions of a moral life to be fulfilled in regard -both to married persons and their children. Therefore the general -rule of the state in dealing with marriage should be to secure such -powers as are favourable and withhold such as are not favourable to -the 'consortium omnis vitae.' But in the application of the principle -great difficulties arise. Lunacy may clearly render the 'consortium -omnis vitae' finally impossible; but what kind and degree of lunacy? -If the lunatic may possibly recover, though there is undoubtedly -reason for the separation from husband or wife during lunacy, should -permanent divorce be allowed? If it is allowed, and the lunatic -recovers, a wrong will have been done both to him and to the children -previously born of the marriage. On the other hand, to reserve the -connubial rights of a lunatic of whose recovery there is hope, and -to restore them when he recovers, may involve the wrong of bringing -further children into the world with the taint of lunacy upon them. -Is cruelty to be a ground of divorce, and if so, what amount? There -is a degree of persistent cruelty which renders 'consortium omnis -vitae' impossible, but unless it is certain that cruelty has reached -the point at which a restoration of any sort of family life becomes -impossible, a greater wrong both to wife and children may be involved -in allowing divorce than in refusing it. A husband impatient for the -time of the restraint of marriage may be tempted to passing cruelty -as a means of ridding himself of it, while if no such escape were -open to him he might get the better of the temporary disturbing -passion and settle down into a decent husband. The same consideration -applies still more strongly to allowing incompatibility of temper -as a ground of divorce. It would be hard to deny that it might be -of a degree and kind in which it so destroyed the possibility of -'consortium omnis vitae,' that, with a view to the interests of the -children, who ought in such a case to be chiefly considered, divorce -implied less wrong than the maintenance of the marriage-tie. But on -the other hand, to hold out the possibility of divorce on the ground -of incompatibility is just the way to generate that incompatibility. -On the whole, the only conclusion seems to be that this last ground -should not be allowed, and that in deciding on other grounds large -discretion should be allowed to a well-constituted court. - - P. _RIGHTS AND VIRTUES_ - -247. We have now considered in a perfunctory way those rights which -are antecedent to the state, which are not derived from it but may -exist where a state is not, and which it is the office of the state -to maintain. We have inquired what it is in the nature of man that -renders him capable of these rights, what are the moral ends to -which the rights are relative, and in what form the rights should be -realised in order to the attainment of these ends. In order to make -the inquiry into rights complete, we ought to go on to examine in -the same way the rights which arise out of the establishment of a -state, the rights connected with the several functions of government; -how these functions come to be necessary, and how they may best be -fulfilled with a view to those moral ends to which the functions of -the state are ultimately relative. According to my project, I should -then have proceeded to consider the social virtues, and the 'moral -sentiments' which underlie our particular judgments as to what is -good and evil in conduct. All virtues are really social; or, more -properly, the distinction between social and self-regarding virtues -is a false one. Every virtue is self-regarding in the sense that it -is a disposition, or habit of will, directed to an end which the man -presents to himself as his good; every virtue is social in the sense -that unless the good to which the will is directed is one in which -the well-being of society in some form or other is involved, the will -is not virtuous at all. - -248. The virtues are dispositions to exercise positively, in some way -contributory to social good, those powers which, because admitting of -being so exercised, society should secure to him; the powers which -a man has a right to possess, which constitute his rights. It is -therefore convenient to arrange the virtues according to the division -of rights. E.g. in regard to the right of all men to free life, the -obligations, strictly so called, correlative to that right having -been considered (obligations which are all of a negative nature, -obligations to forbear from meddling with one's neighbour), we -should proceed to consider the activities by which a society of men -really free is established, or by which some approach is made to its -establishment ('really free,' in the sense of being enabled to make -the most of their capabilities). These activities will take different -forms under different social conditions, but in rough outline they -are those by which men in mutual helpfulness conquer and adapt -nature, and overcome the influences which would make them victims of -chance and accident, of brute force and animal passion. The virtuous -disposition displayed in these activities may have various names -applied to it according to the particular direction in which it is -exerted; 'industry,' 'courage,' 'public spirit.' A particular aspect -of it was brought into relief among the Greeks under the name of -ἀνδρεια. [1] The Greek philosophers already gave an extension to the -meaning of this term beyond that which belonged to it in popular -usage, and we might be tempted further to extend it so as to cover -all the forms in which the habit of will necessary to the maintenance -and furtherance of free society shows itself. The name, however, -does not much matter. It is enough that there are specific modes of -human activity which contribute directly to maintain a shelter for -man's worthier energies against disturbance by natural forces and -by the consequences of human fear and lust. The state of mind which -appears in them may properly be treated as a special kind of virtue. -It is true that the principle and the end of all virtues is the same. -They are all determined by relation to social well-being as their -final cause, and they all rest on a dominant interest in some form -or other of that well-being; but as that interest may take different -directions in different persons, as it cannot be equally developed at -once in everyone, it may be said roughly that a man has one kind of -virtue and not others. - -[1] [Greek ἀνδρεια (andreia) = manliness Tr.] - -249. As the kind of moral duties (in distinction from those -obligations which are correlative to rights) which relate to the -maintenance of free society and the disposition to fulfil those -duties should form a special object of inquiry, so another special -kind would be those which have to do with the management of property, -with the acquisition and expenditure of wealth. To respect the -rights of property in others, to fulfil the obligations correlative -to those rights, is one thing; to make a good use of property, to -be justly generous and generously just in giving and receiving, is -another, and that may properly be treated as a special kind of virtue -which appears in the duly blended prudence, equity, and generosity -of the ideal man of business. Another special kind will be that -which appears in family relations; where indeed that merely negative -observance of right, which in other relations can be distinguished -from the positive fulfilment of moral duties, becomes unmeaning. As -we have seen, there are certain aggravations and perpetuations of -wrong from which husband or wife or children can be protected by law, -but the fulfilment of the claims which arise out of the marriage-tie -requires a virtuous will in the active and positive sense--a will -governed by unselfish interests--on the part of those concerned. - -250. What is called 'moral sentiment' is merely a weaker form of -that interest in social well-being which, when wrought into a man's -habits and strong enough to determine action, we call virtue. So far -as this interest is brought into play on the mere survey of action, -and serves merely to determine an approbation or disapprobation, it -is called moral sentiment. The forms of moral sentiment accordingly -should be classified on some principle as forms of virtue, i.e. with -relation to the social functions to which they correspond. - -251. For the convenience of analysis, we may treat the obligations -correlative to rights, obligations which it is the proper office of -law to enforce, apart from moral duties and from the virtues which -are tendencies to fulfil those duties. I am properly _obliged_ to -those actions and forbearances which are necessary to the general -freedom, necessary if each is not to interfere with the realisation -of another's will. My _duty_ is to be interested positively in my -neighbour's well-being. And it is important to understand that, -while the enforcement of obligations is possible, that of moral -duties is impossible. But the establishment of obligations by law or -authoritative custom, and the gradual recognition of moral duties, -have not been separate processes They have gone on together in the -history of man. The growth of the institutions by which more complete -equality of rights is gradually secured to a wider range of persons, -and of those interests in various forms of social well-being by -which the will is moralised, have been related to each other as the -outer and inner side of the same spiritual development, though at a -certain stage of reflection it comes to be discovered that the agency -of force, by which the rights are maintained, is ineffectual for -eliciting the moral interests. The result of the twofold process has -been the creation of the actual content of morality; the articulation -of the indefinite consciousness that there is something that should -be--a true well-being to be aimed at other than any pleasure or -succession of pleasures--into the sentiments and interests which -form an 'enlightened conscience.' It is thus that when the highest -stage of reflective morality is reached, and upon interests in this -or that mode of social good there supervenes an interest in an ideal -of goodness, that ideal has already a definite filling; and the man -who pursues duty for duty's sake, who does good for the sake of being -good or in order to realise an idea of perfection, is at no loss to -say what in particular his duty is, or by what particular methods the -perfection of character is to be approached. - -SUPPLEMENT. - -_Some Quotations rendered into English._ - -From Sect. 32. _Tractatus Politici_, II. 4 ('Per jus itaque'). 'By -right of nature (natural right) I understand ... the actual power of -nature.' 'Whatever an individual man does by the laws of his nature, -that he does with the highest natural right, and his right towards -nature goes just as far as his power holds out.' - -'Jus naturae' = 'natural right.' 'Potentia' = 'power.' 'Jus' = -'right.' 'Jus humanum' = 'right of man,' or 'right _qua_ human.' - -_Ib_. II. 5 ('Homines magis'). 'Human beings are led more by blind -desire than by reason; and hence their natural power or right should -be marked out not by reason but by any inclination by which they -are determined to act, and by which they endeavour after their own -preservation.' - -'Jus civile' = 'civic right or law.' - -_Ib_. II. 14 ('Quatenus homines'). 'In as far as human beings are -troubled by anger, jealousy, or any emotion of hate, so far they are -drawn in different directions and are antagonistic to one another, -and therefore they are more to be feared in so far as they are more -powerful, and more shrewd and astute, than the other animals; and -because human beings are in the highest degree liable by nature to -these emotions, therefore they are natural enemies (to one another).' - -_Ib_. 15 ('Atque adeo'). 'And so we conclude that natural right can -hardly be conceived unless where human beings have laws in common, -(human beings) who have power at once to assert possession of the -lands which they are able to inhabit and to till, and to defend -themselves, and to repel all violence, and to live in accordance -with the common sentiment of all. For (by art. 13 of this chapter) -the more that thus come together into one, the more right they all -together possess.' - -_Ib_. 16 ('Ubi homines'). 'Where human beings have laws in common -and all together are guided as by one mind, it is certain (by art. -13 of this chapter) that each of them has so much the less right as -the rest are together more powerful than he; that is, that he in fact -has no right over nature beyond that which the common (social) law -concedes him. But whatever is enjoined upon him by common consent, he -is bound to perform, or (by art. 4 of this chapter) he is compelled -to it by law.' - -_Ib_. 17 ('Hoc jus'). 'This law (or right), which is coextensive -with the power of the plurality, is usually called 'imperium' -('authority,' 'government'). - -_Ib_. III. 2 ('Multitudinis quae'). 'Of a number or plurality, which -is guided as if by a single mind.' 'Status civilis' = 'civic, or -social, condition.' - -_Ib_. III. 3 ('Homo ex legibus'). [In the civic condition as well as -in the state of nature] 'man acts from the laws of his own nature -and consults his own interest.' 'Sui juris' = 'in its own right,' -'autonomous.' - -Sect. 33 (1). _Ib_. III. 7 ('Civitatis jus'). 'The right of the state -is coextensive with the power of the plurality which is guided as if -by one mind. But this oneness of minds is inconceivable, unless the -state has for its main intention what sound reason shows to be for -the interest of all men.' - -(2). _Ib_. III. 8 ('Subditi eatenus'). 'Subjects are not in their own -right, but under the right (or law) of the state, so far as they fear -its power or threats, or so far as they love the social condition -(by art. 10 of preceding chapter). From which it follows, that all -those acts to which no one can be impelled by rewards or threats lie -outside the right (or law) of the state.' - -(3). _Ib_. III. 9 ('Ad civitatis jus'). 'That belongs to the right -of the state in a less degree, which causes indignation in a greater -number.' ('Sicut'). 'Like the individual citizen, or the man in a -state of nature, the state is less in its own right in proportion as -it has greater cause for fear.' - -Sect. 34. _Ib_. III. 11 ('Nam quandoquidem'). 'For seeing that (by -art. 2 of this chapter) the right of the supreme power is nothing but -the actual right of nature, it follows that two governments are to -one another as two men in the state of nature, except that the state -can defend itself against external aggression in a way impossible for -man in a state of nature, inasmuch as he is overcome daily by sleep, -often by disease or distress, and in the end by old age, and besides -this is exposed to other inconveniences, against which the state can -protect itself.' - -_Ib_. III. 13 ('Duae civitates'). 'Two states are natural enemies. -For men in the state of nature are enemies. Those, therefore, who -retain the right of nature, as not being in the same state, are -enemies.' - -_Ib_. III. 14 ('Nec dici potest'). 'Nor can it be said to act with -craft or perfidy in that it dissolves its promise as soon as the -cause of fear or hope is removed; because this condition was the same -for both contracting parties, that whichsoever is first enabled to be -free from fear should be in its own right, and should use its right -according to the sentiment of its mind; and, moreover, because no one -contracts for the future except on supposition of the circumstances -under which he contracts.' - -Sect. 35. _Ib_. II. 18 ('In statu'). 'In a state of nature there -can be no transgression, or if one transgresses, he does so against -himself, not against another; ... nothing is absolutely forbidden by -the law of nature, except what no one has power to do.' - -'Commune decretum' = 'the common (or social) behest.' - -_Ib_. V. 1 ('Non id omne'). 'Not everything which we say is done -rightfully, do we affirm to be the best to be done. It is one thing -to till a field within your right, and another thing to till it in -the best way; it is one thing, I say, to defend yourself, preserve -yourself, give judgment &c. within your right, and another thing to -do all these acts in the best way; and accordingly it is one thing to -govern and manage a state within its rights, and another thing to do -this in the best way. Thus, now that we have treated in general of -the right of every state, it is time to treat of the best condition -of every state.' - -'Finis status civilis' = 'the end or aim of the civic or social -condition.' - -_Ib_. V. 2 ('Homines enim'). 'Men are not born of civic temper, but -become so. Moreover, the natural dispositions of men are everywhere -the same.' - -_Ib_. V. 4 ('Pax enim'). 'Peace is not absence of war, but a virtue -which arises from fortitude of mind; for obedience is a constant will -to perform that which the common behest of the state requires to be -done.' - -_Ethics_, III. 59, Schol. (in footnote on preceding passage) ('Omnes -actiones'). 'All the actions which follow from the affects which -are related to the mind, in so far as it thinks, I ascribe to -_fortitude_, which I divide into _strength of mind_ and _generosity_. -By _strength of mind_ I mean the desire by which each person -endeavours, from the dictates of reason alone, to preserve his own -being. By _generosity_ I mean the desire by which, from the dictates -of reason alone, each person endeavours to help other people and to -join them to him in friendship.' - -('Quae maxime'). 'Which is mainly coextensive with reason, the true -virtue and life of the mind.' - -('Quod multitudo libera'). [An authority which] 'a free plurality -institutes, not one which is acquired against the plurality by the -right of war.' - -Sect. 36. 'Suum esse conservare' = 'to preserve his own being.' - -'Homini nihil' = 'nothing is more useful to man, than man.' - -'Homo namque.' See on sect. 32. - -'Constans voluntas.' See on sect. 35. - -'Vitam concorditer transigere' = 'to live in harmony.' - -Footnote on 'Libera multitudo,' II. 11 ('Hominem eatenus'). 'The -sense in which at all I call a man _free_ is in so far as he is -guided by reason; because thus far he is determined to action by -causes which can be adequately understood out of his nature alone, -although by them he be necessarily determined to action. For freedom -of action does not deny but affirms necessity.' - -On Sect. 37. II. 15 ('Jus naturae'). See on sect. 32. - -On Sect. 39. πόλις (polis) = state, including much that we mean by -'society.' - -τέλος (telos) = end, aim, final cause. - -πολίτης (polites) = citizen. - -φύσει πολιτικός (phusei politikos) = social, or civic, by nature. - -πολίτης μετέχει τοῦ ἄρχειν καὶ τοῦ ἄρχεσθαι (polites metechei) 'The -citizen takes his share both in governing and in being governed.' - -On Sect. 40. Footnote, _Eth_. IV. _Appendix_, xxxii ('Ea quae'). -'We shall bear with equanimity those things which happen to us -contrary to what a consideration of our own profit demands, if we are -conscious that we have performed our duty, that the power we have -could not reach so far as to enable us to avoid those things, and -that we are a part of the whole of nature, whose order we follow. -If we clearly and distinctly understand this, the part of us which -is determined by intelligence--that is to say, the better part of -us--will be entirely satisfied therewith, and in that satisfaction -will endeavour to persevere; for, in so far as we understand, we -cannot desire anything excepting what is necessary, nor absolutely -can we be satisfied with anything but the truth. Therefore, in so -far as we understand these things properly will the efforts of the -better part of us agree with the whole order of nature.' _Eth_. IV. -_Preface_ ('Per bonum'). 'By good, therefore, I understand in the -following pages everything which we are certain is a means by which -we may approach nearer and nearer to the model of human nature we -set before us.... Again, I shall call men more or less perfect or -imperfect in so far as they approach nearer and nearer to the model -of human nature we set before us.' - -On Sect. 41. 'Nihil positivum in rebus in se consideratis' = 'nothing -positive in things considered in themselves.' - -In all the quotations from Spinoza's_ Ethics_ Mr. Hales White's -translation has been followed. - - - - - -End of the Project Gutenberg EBook of Lectures on the Principles of -Political Obligation, by Thomas Hill Green and Bernard Bosanquet - -*** END OF THIS PROJECT GUTENBERG EBOOK PRINCIPLES OF POLITICAL OBLIGATION *** - -***** This file should be named 61889-0.txt or 61889-0.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/6/1/8/8/61889/ - -Produced by GDurb -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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