{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_61889/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_61889","id":"gutenberg_61889","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/61889","summary":null,"tags":["Category: Philosophy & Ethics","Category: Politics","Liberty","Natural law","Political obligation"],"text":"LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION\n\nBY\n\nTHOMAS HILL GREEN LATE FELLOW OF BALLIOL COLLEGE AND WHYTE'S\nPROFESSOR OF MORAL PHILOSOPHY IN THE UNIVERSITY OF OXFORD\n\nREPRINTED FROM GREEN'S PHILOSOPHICAL WORKS, VOL II. WITH PREFACE BY\nBERNARD BOSANQUET\n\nNEW IMPRESSION\n\nLONGMANS, GREEN AND CO LTD 39 PATERNOSTER ROW, LONDON NEW YORK,\nBOMBAY, AND CALCUTTA\n\n1911\n\nAll rights reserved\n\nPREFACE.\n\nThe present volume consists of the late Professor Green's lectures\non the 'Principles of Political Obligation,' together with a chapter\non the different senses of the term 'Freedom,' taken from a course\ndirectly connected with the former. The work thus re-issued is a\nreprint of pp. 307-553 of Vol. II. of Professor Green's Philosophical\nWorks, with the addition of a brief supplement (p. 248) furnished\nby the present writer, consisting of English renderings for some\nquotations which appear in the text (pp. 49-59).\n\nThe reason for this re-issue is as follows. The course of lectures in\nquestion has long been known to teachers as a most valuable text-book\nfor students of political theory. But as a portion of a large and\nexpensive volume, which is itself part of a set of collected works,\nit naturally was not accessible to members of popular audiences.\nIn discussing the selection of a text-book for a projected course\nof instruction on political theory, to be given in London, it was\nsuggested that a separate volume, containing the 'Principles of\nPolitical Obligation' would be the best conceivable book for the\npurpose. No other recent writer, it was felt, has the classical\nstrength and sanity of Professor Green, who was never more thorough\nand more at home then when dealing with those questions affecting\ncitizenship in and for which, it may be said, he lived. Many of the\ntroubles of today reflect the distraction of minds to which a sane\nand balanced view of society has never been adequately presented;\nand the importance of the service which might be rendered to general\neducation by the re-issue of these lectures in a convenient form\nappeared to justify an application to those who had the power of\ncarrying out the suggestion which had been made.\n\nThe friends of genuine political philosophy will have good cause, it\nis hoped, to be grateful to Mrs T.H. Green for her cordial assent\nto the proposed republication, as also to Messrs. Longman for their\npromptitude in agreeing to undertake it. The elaborate table of\ncontents, reprinted from the Philosophical Works, was compiled by\ntheir editor, the late Mr. Lewis Nettleship. It adds very greatly to\nthe value of the book.\n\nBERNARD BOSANQUET\n\nTranscriber's Note: each of Green's footnotes has been placed after\nthe paragraph to which it refers, and renumbered accordingly.\nThe footnotes added by R.L. Nettleship are treated the same way,\nremain in the square brackets with which he distinguished them,\nand are marked 'RLN'. The transcriber has added a few footnotes,\nmainly explaining Greek words in the text. These are also in square\nbrackets, marked 'Tr'.\n\nCONTENTS\n\nON THE DIFFERENT SENSES OF 'FREEDOM' AS APPLIED TO WILL AND TO THE\nMORAL PROGRESS OF MAN.\n\n1. In one sense (as being search for _self_-satisfaction) _all_ will\nis free; in another (as the satisfaction sought is or is not real) it\nmay or may not be free\n\n2. As applied to the inner life 'freedom' always implies a metaphor.\nSenses of this metaphor in Plato, the Stoics, St. Paul\n\n3. St. Paul and Kant. It would seem that with Kant 'freedom' means\nmerely consciousness of the _possibility_ of it, ('knowledge of sin')\n\n4. Hegel's conception of freedom as objectively realised in the state\n\n5. It is true in so far as society does supply to the individual\nconcrete interests which tend to satisfy the desire for perfection\n\n6. Though (like the corresponding conception in St. Paul) it is not\nand could not be realised in any actual human society\n\n7. In all these uses 'freedom' means, not mere self-determination or\nacting on preference, but a particular kind of this\n\n8. The extension of the term from the outer to the inner relations of\nlife, though a natural result of reflection, is apt to be misleading\n\n9. Thus the question, Is a man free? which may be properly asked in\nregard to his _actions_, cannot be asked in the same sense in regard\nto his _will_\n\n10. The failure to see this has led to the errors (1) of regarding\nmotive as something apart from and acting on will, (2) of regarding\nwill as independent of motive\n\n11. Thus the fact that a man, _being what he is, must_ act in a\ncertain way, is construed into the negation of freedom\n\n12. And to escape this negation recourse is had to the notion of an\nunmotived will, which is really no will at all\n\n13. The truth is that the will is the man, and that the will cannot\nbe rightly spoken of as 'acting on' its objects or _vice versa_,\nbecause they are neither anything without the other\n\n14. If however the question be persisted in, Has a man power over his\nwill? the answer must be both 'yes' and 'no'\n\n15. 'Freedom' has been taken above (as by English psychologists\ngenerally) as applying to will, whatever the character of the object\nwilled\n\n16. If taken (as by the Stoics, St. Paul, Kant (generally), and\nHegel) as applying only to _good_ will, it must still be recognised\nthat this particular sense implies the generic\n\n17. Whatever the propriety of the term in the particular sense,\nboth 'juristic' and 'spiritual' freedom spring from the same\nself-asserting principle in man\n\n18. And though the former is only the beginning of full freedom, this\nidentity of source will always justify the use of the word in the\nlatter sense\n\n19. But does not the conception of 'freedom' as = the moral ideal\nimply an untenable distinction like that of Kant between the 'pure'\nand 'empirical' ego?\n\n20. The 'pure' and 'empirical' ego are one ego, regarded (1) in its\npossibility, (2) as at any given time it actually is\n\n21. In man the self-realising principle is never realised; i.e. the\nobjects of reason and will only _tend_ to coincide\n\n22. So far as they do coincide, man may be said to be 'free' and his\nwill to be 'autonomous'\n\n23. The growing organisation of human life provides a medium for the\nembodiment, and disciplines the natural impulses for the reception,\nof the idea of perfection\n\n24. The reconciliation of reason and will takes place as the\nindividual more and more finds his own self-satisfaction in meeting\nthe requirements of established morality\n\n25. Until these come to be entirely superseded by the desire of\nperfection for its own sake, and his will becomes really free.\n\nLECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION\n\n    A. _The grounds of political obligation._\n\n1. Subject of the inquiry\n\n2. Its connection with the general theory of morals. Ideal goodness\nis to do good for its own sake: but there must be acts considered\ngood on other grounds before they can be done for the sake of their\ngoodness\n\n3. When, however, the ideal comes to be recognised as the ideal, the\nlower interests and rules must be criticised and revised by it\n\n4. The criticism of interests will yield a 'theory of moral\nsentiments'; that of rules will relate (1) to positive law, (2) to\nthe law of opinion\n\n5. As moral interests greatly depend on recognised rules of conduct,\nand those again on positive law, it is best to begin by considering\nthe moral value of existing civil institutions\n\n6. The condition of morality is the possession of will and reason,\nand it is realised in a personal character in which they are\nharmonised\n\n7. Civil institutions are valuable so far as they enable will and\nreason to be exercised, and so far they answer to 'jus naturae'\n\n8. The essential questions as to the 'law of nature' are, (1) Are\nthere rights and obligations other than those actually enforced? (2)\nIf so, what is the criterion of them?\n\n9. While rejecting the theory of a 'state of nature,' we may still\nuse 'natural' of those rights which _ought_ to be, though they\nactually are not\n\n10. Such 'natural law' is (as admitting _enforcement_) distinct from,\nbut (as implying a _duty_ to obey it) relative to, the moral law\n\n11. Hence two principles for the criticism of law, (1) only external\nacts can be matter of obligation proper, (2) the ideal of law must be\ndetermined by reference to the moral end which it serves\n\n12. Observe _(a)_ that in confining law to 'external actions,' we\nmean by 'actions' _intentions_, without which there is properly no\n'action'\n\n13. _(b)_ That by 'external' we mean that law, though it does supply\nmotives to action, looks merely to whether the action is done, not to\nwhether it is done from a particular motive\n\n14. Law then _can_ only enjoin or forbid certain acts; it _cannot_\nenjoin or forbid motives\n\n15. And the only acts which it _ought_ to enjoin or forbid are those\nof which the doing or not doing, _from whatever motive_, is necessary\nto the moral end of society\n\n16. The principle of 'natural law,' then, should be to enjoin all\nacts which further action from the highest motive, and no acts which\ninterfere with such action\n\n17. This principle would condemn much legislation which has tended,\ne.g., to weaken religion, self-respect, or family feeling\n\n18. This, and not the principle of 'laissez-faire,' is the true\nground of objection to 'paternal government'\n\n19. The theory of political obligation (i.e. of what law ought to\nbe, and why it ought to be obeyed) is not a theory _(a)_ as to how\nexisting law has come to be what it is\n\n20. Nor _(b)_ as to how far it expresses or is derived from certain\noriginal 'natural' rights\n\n21. 'Natural' rights (like law itself) are relative to moral ends,\ni.e. they are those which are necessary to the fulfilment of man's\nmoral vocation as man\n\n22. This however is not the sense in which political obligation\nwas based on 'natural rights' in the seventeenth and eighteenth\ncenturies, previously to utilitarianism\n\n23. The utilitarian theory so far agrees with that here advocated\nthat it grounds existing law, not on a 'natural' law prior to it, but\non an end which it serves\n\n24. The derivation of actual rights from natural (i.e. more\nprimitive) rights does not touch the real question, viz. how there\ncame to be _rights_ at all\n\n25. The conception of a moral ideal (however dim) is the condition of\nthe existence of rights, and conversely anyone who is capable of such\na conception is capable of rights\n\n26. Thus the consciousness of having rights is co-ordinate with the\nrecognition of others as having them, the ground of both being the\nconception of a common good which _ought_ to be attained\n\n27. Rights then can only subsist among 'persons,' in the _moral_\nsense of 'persons,' i.e. being possessed of rational will\n\n28. Though the moral idea of personality is later in formulation than\nthe legal, and this again than the actual existence of rights\n\n29. Rights which are directly necessary to a man's acting as a moral\nperson at all may be called in a special sense 'personal'\n\n30. Nor is there any objection to calling them 'innate' or 'natural,'\nif this means 'necessary to the moral development of man' in which\nsense 'duties' are equally 'natural'\n\n31. Without a society conscious of a common interest there can be\nonly 'powers,' no 'rights'.\n\n    B. _Spinoza._\n\n32. Spinoza, seeing that 'jus naturae' = 'potentia,' and not seeing\nthat it is not really 'jus' at all, identifies all 'jus' with\n'potentia,' both in the state and in the individual\n\n33. From which it follows that the 'right' of the state against its\nindividual members is only limited by its 'power'\n\n34. And the same principle applies to the relations of one state to\nother states\n\n35. But, according to Spinoza, though everything is 'lawful' for the\nstate, everything is not 'best,' and the 'best' state is that which\nsecures a life of 'peace,' i.e. rational virtue or perfection\n\n36. This conclusion does not seem consistent with his starting-point,\naccording to which men are 'naturally enemies'\n\n37. From such a 'status naturalis' there is no possible transition to\nthe 'status civilis,' and the phrase '_jus_ naturae' remains unmeaning\n\n38. Spinoza's error of regarding 'rights' as possible apart from\nsociety was confirmed by his denial of final causes\n\n39. It was just because Plato and Aristotle regarded man as finding\nhis end in the end of the state, that they founded a true theory of\nrights\n\n40. Spinoza, however, while insisting that man is 'part of nature,'\nyet places his 'good' in understanding nature and so acquiring a new\ncharacter\n\n41. In thus recognising the idea of perfection as a determinant of\nlife, he really recognises an operative final cause, though without\nseeing its bearing on the theory of right.\n\n    C. _Hobbes._\n\n42. Hobbes differs from Spinoza in regarding the right of the\nsovereign, not as limited by his power, but as absolute\n\n43. Statement of his doctrine\n\n44. He uses 'person,' as in Roman law, for either (1) a complex of\nrights, or (2) the subject of those rights\n\n45. Though by his theory the sovereign may be one or many, and\nsovereignty is transferable by the act of a majority, he tacitly\nvindicates the absolute right of a _de facto_ monarchy\n\n46. The radical fiction in his theory is that there can be any\n'right' _after_ the institution of sovereignty, if (as he holds)\nthere is none before it\n\n47. To justify his doctrine of absolute submission he has to assume a\n'law of nature' which binds men to keep covenant, while yet he holds\nthe 'law of nature' to be mere 'power' and covenants to be only valid\nunder an _imperium,_\n\n48. His 'contract' can confer none but natural right, and that is\neither not a right at all, or (if it is) it belongs to all men,\nsubject and sovereign alike\n\n49. The real flaw in the theory of contract is not that it is\nunhistorical, but that it implies the possibility of rights and\nobligations independently of society\n\n50. Though it has not been popularly accepted as regards the rights\nof sovereigns over subjects, the behaviour of individuals to society\nis to a groat extent practically determined by it.\n\n    D. _Locke._\n\n51. The development of this latter side of it is peculiarly due to\nRousseau, but Locke, Hooker, and Grotius have essentially the same\nconception: Spinoza alone differs\n\n52. Ambiguity of their phrase 'state of nature.' They agree in\ntreating it as the negation of the 'political state.' But if so,\ncontract would be impossible in it\n\n53. Nor could it be a state of 'freedom and equality,' as most of\nthem assume it to be\n\n54. And if this state of nature implies consciousness of obligation,\nit must imply recognition of social claims, and must therefore be\nvirtually a political state\n\n55. In fact the theory of a state of nature governed by a law of\nnature, as preceding civil society, must be untrue either to the\nconception of _law_ or to that of _nature_\n\n56. Locke differs from Hobbes (1) in distinguishing the 'state of\nnature' from the 'state of war'\n\n57. He implies (more consistently than Hobbes) that the 'state of\nnature' is one in which the 'law of nature' is observed\n\n58. (2) He limits the supreme power in the state by the legislature,\nwhich holds its functions in trust from the community\n\n59. And this distinction between the supreme community and the\nsupreme executive enables him to distinguish between dissolution of\nthe political society and dissolution of the government, which Hobbes\nhad confused\n\n60. He invests the community with the right of resuming the powers\nwhich they have delegated, and thus justifies revolution when it is\nthe act of the whole community\n\n61. The difficulty is to determine when it _is_ the act of the whole\ncommunity, and on this Locke's theory gives no help\n\n62. The difficulty indeed is not so great as that of conceiving the\nact of original devolution of power, and is inherent in the theory of\ncontract\n\n63. In the particular case of the reform of the English\nrepresentative system, Locke does not contemplate the carrying out of\nhis own theory.\n\n    E. _Rousseau._\n\n64. Rousseau conceives the community to be in continual exercise of\nthe power which Locke conceives it to have exercised once and to hold\nin reserve\n\n65. In his view of the motive for passing from the state of nature\ninto the civil state he is more like Spinoza than Locke\n\n66. His statement of the origin and nature of the 'social contract'\n\n67. Its effects upon the individual\n\n68. His idea of the sovereign is really that of a supreme\ndisinterested reason, but he fuses this with the ordinary idea of a\nsupreme coercive power\n\n69. The practical result of his theory has been a vague exaltation of\nthe will of the people, regardless of what 'the people' ought to mean\n\n70. Further consequences of his ideal conception of sovereignty. It\ncannot be alienated, represented, or divided\n\n71. Thus the 'government' is never the same as the 'sovereign,' and\nconstitutions differ according to where the government, not the\nsovereignty, resides\n\n72. The institution of government is _not_ by contract, but by the\nact of the sovereign, and this act must be confirmed or repealed\nperiodically\n\n73. His distinction between the 'will of all' and the 'general will':\nthe latter always wills the common good, though it may be mistaken as\nto means\n\n74. He admits however that it may be overpowered by particular\ninterests, and so find no expression even in the vote of a general\nassembly\n\n75. What then is the test of the 'general' will? Absolute unanimity\nis what Rousseau requires of the parties to the original contract\n\n76. But what is to decide whether their successors are parties to it?\nNot 'residence,' unless there is also freedom to migrate\n\n77. The element of permanent value in Rousseau is his conception of\nthe state as representing the 'general will'\n\n78. Difficulties in this conception. It seems that either no actual\nstate realises it, or that there may be a state without a true\nsovereign\n\n79. We may distinguish between _de facto_ and _de jure_ sovereignty,\nand say that Rousseau meant the latter; but this is only an\n_inference_ from what he says.\n\n    F. _Sovereignty and the general will._\n\n80. Hence it may be asked, (1) Is any actual sovereignty founded on\nthe 'general will'? (2) Can sovereignty _de jure_ be truly said to be\nfounded on it? (3) If so, must it be expressed through the vote of a\nsovereign people?\n\n81. (1) According to (e.g.) Austin's definition of sovereignty, we\nshould answer this question in the negative\n\n82. (Observe that from Austin's definition it would follow that,\nwhile every 'law' implies a 'sovereign,' a 'sovereign's' commands\nneed not be 'laws')\n\n83. That definition directly contradicts that of Rousseau, in _(a)_\nplacing sovereignty in _determinate_ persons, _(b)_ making its\nessence lie in power to compel obedience\n\n84. Actual sovereignty combines both definitions; the habitual\nobedience of subjects to the sovereign is due to the sense that by\nobeying they secure certain ends\n\n85. So far as Austin means that a fully developed state implies a\n_determinate_ supreme source of law, he is right as against Rousseau\n\n86. But if sovereign power = the aggregate influences which really\nmake the people obedient, it must be sought in the 'general will'\n\n87. Such power need not be 'sovereign' in the narrower sense, and may\ncoexist with a separate coercive power which is 'sovereign'\n\n88. This has been the case in ancient despotisms, and in the modern\nempires of the East\n\n89. So in states under foreign dominion, which retain a national\nlife, the technical sovereign is not the law-making and\nlaw-maintaining power\n\n90. Under the Roman Empire, in British India, in Russia, where the\ntechnical is also the real sovereign, its strength rests in different\ndegrees on the general will\n\n91. Thus the answer to question (1) depends on the sense of\n'sovereign.' If it = a power which guarantees equal rights, it is\nimplied in every 'political' society\n\n92. But _(a)_ it _need_ not be the supreme coercive power, and _(b)_\nif it is so, it is not _because_ it is so that it commands habitual\nobedience\n\n93. Thus (retaining the technical use of 'sovereign') it is true that\nif the sovereign is to be so _really_, it must express and maintain a\ngeneral will\n\n94. Though this is compatible with the fact that some of the laws of\nthe sovereign conflict with the general will\n\n95. Thus as to question (2) (above, sec. 80), if sovereignty is said\nto rest on the general will 'de jure,' either 'sovereign' or 'jus' is\nnot used in the strict sense\n\n96. An antithesis between sovereign 'de jure' and 'de facto' can only\narise from a confusion between 'sovereign' as = the source of law and\n'sovereign' as = the 'general will'\n\n97. Though there are cases in which (in a different sense) a\nsovereign may be conveniently described as 'de facto,' not 'de jure,'\nor _vice versa_\n\n98. Similarly, to say that the people is 'sovereign de jure' is to\nconfuse the general will with the coercive power of the majority\n\n99. Rousseau's confusion is due to the theory of 'natural rights'\n(that the individual is not bound by anything which he has not\nindividually approved)\n\n100. The individual must indeed judge for himself whether a law is\nfor the common good; but though he judge it not to be, he ought as a\nrule to obey it\n\n101. Cases in which a doubt may arise\n\n102. _(a)_ Where the legal authority of the law is doubtful, owing to\nthe doubt where the sovereignty in the state resides\n\n103. In such cases the truth generally is that the 'right,' on the\nparticular issue, has not yet formed itself\n\n104. But it does not follow that because the 'right' is on both\nsides, one is not 'better' than the other; though this may be the case\n\n105. In such cases of disputed sovereignty the distinction of 'de\njure' and 'de facto' may be applied, though it is better to say that\nthe sovereignty is in abeyance\n\n106. The individual, having no 'right' to guide him, should take the\nside whose success seems likely to be best for mankind\n\n107. _(b)_ Another case is where there is no legal way of getting\na bad law repealed. Here it is a question, not of _right_, but of\n_duty_, to resist the sovereign\n\n108. Nor is it a question of the right of a majority, _as a\nmajority_, to resist: it may be the duty of a helpless minority\n\n109. Some general questions which the good citizen may put to himself\nin such dilemmas\n\n110. They can, indeed, seldom be applied by the agents at the time as\nthey can be after the event\n\n111. In simple cases we may judge of the right or wrong of an act by\nthe character which it expresses, but generally we can only judge\nthem by its results\n\n112. All that the historian can say is that on the whole the best\ncharacter is likely to produce the best results, notwithstanding\nvarious appearances to the contrary.\n\n    G. _Will, not force, is the basis of the state._\n\n113. The doctrines which explain political obligation by contract\nagree in treating sovereign and subject apart, whereas they are\ncorrelative\n\n114. For the desire for freedom in the individual is no real desire\nunless he is one of a society which recognises it. (Slaves are not a\nreal exception to this)\n\n115. And without an authority embodied in civil institutions he would\nnot have the elementary idea of right which enables him to question\nthe authority\n\n116. But the theory of contract expresses, in a confused way, the\ntruth that only through the common recognition of a common good, and\nits embodiment in institutions, is morality possible\n\n117. Thus morality and political subjection have a common source.\n\n118. And _both_ imply the twofold conception, _(a)_ 'I _must_ though\nI do not like,' _(b)_ 'I must _because_ it is for the common good\nwhich is also my good'\n\n119. It is a farther and difficult question, how far the sense\nof common interest can be kept alive either in the government or\nsubjects, unless the people participates directly in legislation\n\n120. And this suggests the objection, Is it not trifling with words\nto speak of political subjection in modern states as based on the\n_will_ of the subjects?\n\n121. We must admit _(a)_ that the idea of the state as serving a\ncommon interest is only _partially_ realised, even by the most\nenlightened subject, though so far as realised it is what makes him a\nloyal subject\n\n122. _(b)_ That if he is to be an intelligent patriot as well as a\nloyal subject, he must take a personal part in the work of the state\n\n123. And _(c)_ that even then his patriotism will not be a passion\nunless it includes a feeling for the state analogous to that which he\nhas for his family and home\n\n124. But are we not again assuming what was disputed, viz. that a\nsense of its serving a common interest is necessary to the existence\nof the state?\n\n125. Observe that the idea of an end or function, realised by\nagencies unconscious of it and into which it cannot be resolved, is\nalready implicit even if the state be treated as a 'natural organism'\n\n126. Such a treatment, however, would ignore the distinction between\nthe 'natural' and the 'human' or 'moral' agencies which have operated\nin the production of states\n\n127. It may be objected that these 'human' agencies are not\nnecessarily 'moral,' but on the contrary are often selfish\n\n128. But though human motives are never unalloyed, they only produce\ngood results so far as they are fused with and guided by some\nunselfish element\n\n129. If e.g. we would form a _complete_ estimate of Napoleon, we must\nconsider not only his ambition but the _particular form_ in which his\nambition worked\n\n130. And further reflect that the _idiosyncrasy_ of such men plays\nbut a small part in the result, which is mainly due to agencies of\nwhich they are only the most conspicuous instruments\n\n131. Thus an ideal motive may co-operate with the motives of selfish\nmen, and only through such co-operation are they instrumental for good\n\n132. The fact that the state implies a supreme coercive power gives\ncolour to the view that it is based on coercion; whereas the coercive\npower is only supreme because it is exercised in a state, i.e.\naccording to some system of law, written or customary\n\n133. In the absence of any other name, 'state' is the best for a\nsociety in which there is such a system of law and a power to enforce\nit\n\n134. A state, then, is not an aggregate of individuals under\na sovereign, but a society in which the rights of men already\nassociated in families and tribes are defined and harmonised\n\n135. It developes as the absorption of fresh societies or the\nextended intercourse between its members widens the range of common\ninterests and rights\n\n136. The point to be insisted on is that force has only formed states\nso far as it has operated in and through a pre-existing medium of\npolitical, tribal, or family 'rights'.\n\n    H. _Has the citizen rights against the state?_\n\n137. As long as power of compulsion is made the essence of the state,\npolitical obligation cannot be explained either by the theory of\n'consent,' or by that which derives all right from the sovereign\n\n138. The state presupposes rights, rights which may be said to belong\nto the 'individual' if this mean 'one of a society of individuals'\n\n139. A right may be _analysed_ into a claim of the individual upon\nsociety and a power conceded to him by society, but really the claim\nand the concession are sides of one and the same common consciousness\n\n140. Such common consciousness of interests is the ground of the\n'natural right' of slaves and of the members of other states\n\n141. But though in this way there may be rights outside the state,\nthe members of a state derive the rights which they have as members\nof other associations from the state, and have no rights against it\n\n142. i.e. as they derive their rights from their membership in the\nstate, they have no right to disobey the law unless it be for the\ninterest of the state\n\n143. And even then only if the law violates some interest which is\n_implicitly acknowledged_ by the conscience of the community\n\n144. It is a farther question when the attempt to get a law repealed\nshould be exchanged for active resistance to it\n\n145. e.g. should a slave be befriended against the law? The slave has\nas a man certain rights which the state cannot extinguish, and by\ndenying which it forfeits its claim upon him\n\n146. And it may be held that the claim of the slave upon the citizen,\nas a man, overrides the claim of the state upon him, as a citizen\n\n147. Even here, however, the law ought to be obeyed, supposing that\nits violation tended to bring about general anarchy.\n\n    I. _Private rights. The right to life and liberty._\n\n148. There are rights which men have as members of associations,\nwhich come to be comprised in the state, but which also exist\nindependently of it\n\n149. These are 'private' rights, divided by Stephen into _(a)_\npersonal, _(b)_ rights of property, _(c)_ rights in private relations\n\n150. _All_ rights are 'personal'; but as a man's body is the\ncondition of his exercising rights at all, the rights of it may be\ncalled 'personal' in a special sense\n\n151. The right of 'life and liberty' (better, of 'free life'), being\nbased on capacity for society, belongs _in principle_ to man as man,\nthough this is only gradually _recognised_\n\n152. At first it belongs to man as against other members of his\nfamily or tribe, then as against other tribes, then as against other\ncitizens, which in antiquity still implies great limitations\n\n153. Influences which have helped to break down these limitations are\n_(a)_ Roman equity, _(b)_ Stoicism, _(c)_ the Christian idea of a\nuniversal brotherhood\n\n154. This last is the logical complement of the idea that man as such\nhas a right to life; but the right is only _negatively recognised_ in\nmodern Christendom\n\n155. It is ignored e.g. in war, nor is much done to enable men to\nfulfil their capacities as members of humanity\n\n156. Four questions as to the relation of the state to the right of\nman as man to free life.\n\n    K. _The right of the state over the individual in war._\n\n157. (1) Has the state a right to override this right in war? It must\nbe admitted that war is _not_ 'murder,' either on the part of those\nwho fight or of those who cause the war\n\n158. Yet it may be a violation of the right of life. It does not\nprove it not to be so, that _(a)_ those who kill do not intend to\nkill anyone in particular\n\n159. Or that _(b)_ those who are killed have incurred the risk\nvoluntarily. Even if they have, it does not follow that they had a\n'right' to do so\n\n160. It may be said that the right to physical life may be overridden\nby a right arising from the exigencies of moral life\n\n161. But this only shifts the blame of war to those who are\nresponsible for those exigencies; it remains a wrong all the same\n\n162. But in truth most wars of the last 400 years have _not_ been\nwars for political liberty, but have arisen from dynastic ambition or\nnational vanity\n\n163. Admitting, then, that virtue may be called out by war and that\nit may be a factor in human progress, the destruction of life in it\nis always a wrong\n\n164. 'But if it be admitted that war may do good, may not those who\noriginate it have the credit of this?'\n\n165. If they really acted from desire to do good, their share in the\nwrong is less; but in any case the fact that war was the only means\nto the good was due to human agency and was a wrong\n\n166. (2) (See sec. 157). Hence it follows that the state, so far as\nit is true to its principle, cannot have to infringe the rights of\nmen as men by conflicts with other states\n\n167. It is not because states exist, but because they do not fulfil\ntheir functions as states in maintaining and harmonising general\nrights, that such conflicts are necessary\n\n168. This is equally true of conflicts arising from what are called\n'religious' grounds\n\n169. Thus no state, as such, is _absolutely_ justified in doing a\nwrong to mankind, though a particular state may be conditionally\njustified\n\n170. It may be objected that such a 'cosmopolitan' view ignores the\nindividuality of states, and could only be realised if they wore all\nabsorbed in a universal empire\n\n171. It is true that public spirit, to be real, must be national; but\nthe more a nation becomes a true state, the more does it find outlets\nfor its national spirit other than conflicts with other nations\n\n172. In fact the identification of patriotism with military\naggressiveness is a survival from a time when states in the full\nsense did not exist\n\n173. And our great standing armies are due, not to the development\nof a system of states, but to circumstances which witness to the\nshortcomings of that system\n\n174. The better the organisation of each state, the greater is the\nfreedom of communication with others, especially in trade, which,\nbeginning in self-interest, may lead to the consciousness of a higher\nbond\n\n175. As compared with individuals, any bonds between nations must\nbe weak; on the other hand, governments have less temptation than\nindividuals to deal unfairly with one another.\n\n    L. _The right of the state to punish._\n\n176. (3) (See sec. 156). What right has the state to punish? The\nright to live in a community rests on the capacity to act for the\ncommon good, and implies the right to protect such action from\ninterference\n\n177. A detailed theory of punishment implies a detailed theory of\nrights. Here we can only deal with principles\n\n178. Is punishment _retributive_? Not in the sense that it carries on\na supposed 'right' of private vengeance, for no such 'right' can exist\n\n179. The most rudimentary 'right' of vengeance implies social\nrecognition and regulation, in early times by the family\n\n180. And its development up to the stage at which the state alone\npunishes is the development of a principle implied from the first\n\n181. But if punishment excludes private vengeance, how can it be\nretributory at all? And how can a wrong _to society_ be requited?\n\n182. When a wrong is said to be 'done to society,' it does not mean\nthat a feeling of vindictiveness is excited in the society\n\n183. The popular indignation against a great criminal is an\nexpression, not of individual desire for vengeance, but of the demand\nthat the criminal should have his due\n\n184. And this does not mean an equivalent amount of suffering; nor\nsuch suffering as has been found by experience to deter men from the\ncrime\n\n185. Punishment, to be _just_, implies _(a)_ that the person punished\ncan understand what _right_ means, and _(b)_ that it is some\nunderstood _right_ that he has violated\n\n186. He will then recognise that the punishment is his own act\nreturning on himself; (it is in a different sense that the physical\nconsequences of immorality are spoken of as a 'punishment')\n\n187. Punishment may be said to be_ preventive_, if it be remembered\n_(a)_ that _what_ it 'prevents' must be the violation of a real\nright, and _(b)_ that the _means by which_ it 'prevents' must be\nreally necessary\n\n188. Does our criterion of the justice of punishment give any\npractical help in apportioning it?\n\n189. The justice of punishment depends on the justice of the system\nof rights which it is to maintain\n\n190. The idea that 'just' punishment is that which = the crime\nin amount confuses retribution for the wrong to society with\ncompensation for damages to the individual\n\n191. 'But why not hold that the pain of the punishment ought to = the\nmoral guilt of the crime?'\n\n192. Because the state cannot gauge either the one or the other; and\nif it could, it would have to punish every case differently\n\n193. In truth the state has regard in punishing, not primarily to the\nindividuals concerned, but to the future prevention of the crime by\nassociating terror with it in the general imagination\n\n194. The account taken of 'extenuating circumstances' may be\nsimilarly explained; i.e. the act done under them requires little\nterror to prevent it from becoming general\n\n195 'But why avoid the simpler explanation, that extenuating\ncircumstances are held to diminish the _moral guilt_ of the act?'\n\n196. Because _(a)_ the state cannot ascertain the _degree_ of moral\nguilt involved in a crime; _(b)_ if it tries to punish immorality\n(proper), it will check disinterested moral effort\n\n197. Punishment, however, may be truly held to express the 'moral\ndisapprobation' of society, but it is to the external side of action\nthat the disapprobation is directed\n\n198. The principle that punishment should be regulated by the\nimportance of the right violated explains the severity with which\n'culpable negligence is punished\n\n199. And the punishment of crimes done in drunkenness illustrates the\nsame principle\n\n200. It also justifies the distinction between 'criminal' and 'civil'\ninjuries, (which is not a distinction between injuries to individuals\nand to the community, for no 'right' is violated by injury done to an\nindividual _as such_)\n\n201. There would be no reason in associating terror with breaches of\na right which the offender either did not know that he was breaking\nor which he could not help breaking\n\n202. When such ignorance and inability are culpable, it depends on\nthe seriousness of the wrong or the degree to which the civil suit\ninvolves deterrent effects, whether they should be treated as crimes\n\n203. Historically, the state has interfered first through the civil\nprocess; gradually, as public alarm gets excited, more and more\noffences come to be treated as crimes\n\n204. Punishment must also be _reformatory_ (this being one way of\nbeing preventive), i.e. it must regard the rights of the criminal\n\n205. Capital punishment is justifiable only _(a)_ if it can be shown\nto be necessary to the maintenance of society, _(b)_ if there is\nreason to suppose the criminal to be permanently incapable of rights\n\n206. Punishment, though _directly_ it aims at the maintenance of\nrights, has indirectly a moral end, because rights are conditions of\nmoral well-being.\n\n    M. _The right of the state to promote morality._\n\n207. (4) (See sec. 156). The right of free life is coming to be more\nand more recognised amongst us _negatively_; is it reasonable to do\nso little _positively_ to make its exercise possible?\n\n208. First observe that the capacity for free life is a moral\ncapacity, i.e. a capacity for being influenced by a sense of common\ninterest\n\n209. This influence will only be weakened by substituting for it\nthat of law, but the state can do more than it usually does without\ndeadening spontaneous action; e.g. 'compulsory education' need not be\n'compulsory' except to those who have no spontaneity to be deadened\n\n210. So too with interference with 'freedom of contract'; we must\nconsider not only those who are interfered with, but those whose\nfreedom is increased by the interference.\n\nN. _The right of the state in regard to property._\n\n211. As to property two questions have to be kept distinct, _(a)_\nhow there has come to be property, _(b)_ how there has come to be\na _right_ of property. Each of those again may be treated either\nhistorically or metaphysically\n\n212. The confusion of those questions and methods has given rise\neither to truisms or to irrelevant researches as to the nature of\nproperty\n\n213. Property implies _(a)_ appropriation, i.e. an act of will, of a\npermanent self demanding satisfaction and expression\n\n214. _(b)_ Recognition of the appropriation by others. This\nrecognition cannot be derived from contract (Grotius), or from a\nsupreme force (Hobbes)\n\n215. Locke rightly bases the right of property on the same ground as\nthe right to one's own person; but he does not ask what that ground is\n\n216. The ground is the same as that of the right of life, of which\nproperty is the instrument, viz. the consciousness of a common\ninterest to which each man recognises every other man as contributing\n\n217. Thus the act of appropriation and the recognition of it\nconstitute one act of _will_, as that in which man seeks a good at\nonce common and personal\n\n218. The condition of the family or clan, in which e.g. land is held\nin common, is not the negation, but on the contrary the earliest\nexpression of the right of property\n\n219. Its defect lies _(a)_ in the limited scope for free moral\ndevelopment which it allows the associates, _(b)_ in the limited\nrange of moral relations into which it brings them\n\n220. But the expansion of the clan into the state has not brought\nwith it a corresponding emancipation of the individual. Is then the\nexistence of a practically propertyless class in modern states a\nnecessity, or an abuse?\n\n221. In theory, everyone who is capable of living for a common good\n(whether he actually does so or not) ought to have the means for so\ndoing: these means are property\n\n222. But does not this theory of property imply freedom of\nappropriation and disposition, and yet is it not just this freedom\nwhich leads to the existence of a propertyless proletariate?\n\n223. Property, whether regarded as the appropriation of nature by men\nof different powers, or as the means required for the fulfilment of\ndifferent social functions, _must_ be unequal\n\n224. Freedom of trade, another source of inequality, follows\nnecessarily from the same view of property: freedom of bequest is\nmore open to doubt\n\n225. It seems to follow from the general right of a man to provide\nfor his future, and (with certain exceptions) to be likely to secure\nthe best distribution; but it does _not_ imply the right of entail\n\n226. Returning to the question raised in sec. 220, observe _(a)_ that\naccumulation by one man does not itself naturally imply deprivation\nof other men, but rather the contrary\n\n227. Nor is the prevalence of great capitals and hired labour in\nitself the cause of the bad condition of so many of the working\nclasses\n\n228. The cause is to be found, not in the right of property and\naccumulation, but (partly at least) in the fact that the land has\nbeen originally appropriated by conquest\n\n229. Hence _(a)_ the present proletariate inherit the traditions\nof serfdom, and _(b)_ under landowning governments land has been\nappropriated unjustifiably, i.e. in various ways prejudicial to the\ncommon interest\n\n230. And further the masses crowded through these causes into large\ntowns have till lately had little done to improve their condition\n\n231. Whether, if the state did its duty, it would still be advisable\nto limit bequest of land, is a question which must be differently\nanswered according to circumstances\n\n232. The objection to the appropriation by the state of 'unearned\nincrement' is that it is so hard to distinguish between 'earned' and\n'unearned'.\n\n    O._ The right of the state in regard to the family._\n\n233. The rights of husband over wife and father over children are\n_(a)_ like that of property in being rights against all the world,\n_(b)_ unlike it in being rights over _persons_, and therefore\nreciprocal\n\n234. The latter characteristic would be expressed by German writers\nby saying that both the 'subject' and the 'object' of these rights\nare persons\n\n235. Three questions about them: (1) What makes man capable of family\nlife? (2) How does it come to have rights? (3) What ought the form of\nthose rights to be?\n\n236. (1) The family implies the same effort after permanent\nself-satisfaction as property, together with a permanent interest in\na particular woman and her children\n\n237. The capacity for this interest is essential to anything which\ncan be rightly called family life, whatever lower forms of life may\nhistorically have preceded it\n\n238. (2) The rights of family life arise from the mutual recognition\nof this interest by members of the same clan (in which the historical\nfamily always appears as an element)\n\n239. Its development has been in the direction _(a)_ of giving _all_\nmen and women the right to marry, _(b)_ of recognising the claims of\nhusband and wife to be _reciprocal_. Both these imply monogamy\n\n240. Polygamy excludes many men from marriage and makes the wife\npractically not a wife, while it also prevents real reciprocity of\nrights both between husband and wife and between parents and children\n\n241. The abolition of slavery is another essential to the development\nof the true family life, in both the above respects\n\n242. (3) Thus the _right_ (as distinct from the _morality_) of family\nlife requires _(a)_ monogamy, _(b)_ duration through life, _(c)_\nterminability on the infidelity of husband or wife\n\n243. Why then should not adultery be treated as a crime? Because\n(unlike other violations of right) it is generally in the public\ninterest that it should be condoned if the injured person is willing\nto condone it\n\n244. Nor would the higher purposes of marriage be served by making\ninfidelity penal, for they depend on disposition, not on outward acts\nor forbearances\n\n245. All that the state can do, therefore, is to make divorce for\nadultery easy, and to make marriage as serious a matter as possible\n\n246. _(b)_ Should divorce be allowed except for adultery? Sometimes\nfor lunacy or cruelty, but not for incompatibility, the object of the\nstate being to make marriage a 'consortium omnis vitae'.\n\n    P._ Rights and virtues._\n\n247. Outline of remaining lectures, on (1) rights connected with\nthe functions of government, (2) social virtues. (The antithesis of\n'social' and 'self-regarding' is false)\n\n248. Virtues, being dispositions to exercise rights, are best\nco-ordinated with rights. Thus to the right of life correspond those\nvirtues which maintain life against nature, force, and animal passion\n\n249. Similarly there are active virtues, corresponding to the\nnegative obligations imposed by property and marriage\n\n250. 'Moral sentiments' should be classified with the virtues, of\nwhich they are weaker forms\n\n251. Although for clearness _obligations_ must be treated apart\nfrom _moral duties_, they are really the outer and inner side of\none spiritual development, in the joint result of which the idea of\nperfection is fulfilled.\n\nSupplement.\n\nSome Quotations rendered into English.\n\nON THE DIFFERENT SENSES OF 'FREEDOM' AS APPLIED TO WILL AND TO THE\nMORAL PROGRESS OF MAN.\n\nNote of the Editor,\n\nThe lectures from which the following extract is taken were delivered\nin the beginning of 1879, in continuation of the course in which the\ndiscussion of Kant's moral theory occurred. The portions here printed\nare those which were not embodied, at any rate in the same form, in\nthe _Prolegomena to Ethics_. See _Prolegomena to Ethics_, Book ii.\nch. i. sec. 100, Editor's note.\n\nON THE DIFFERENT SENSES OF 'FREEDOM' AS APPLIED TO WILL AND TO THE\nMORAL PROGRESS OF MAN.\n\n1. Since in all willing a man is his own object, the will is always\nfree. Or, more properly, a man in willing is necessarily free,\nsince willing constitutes freedom, [1] and 'free will' is the\npleonasm 'free freedom.' But while it is important to insist upon\nthis, it is also to be remembered that the nature of the freedom\nreally differs--the freedom means quite different things--according\nto the nature of the object which the man makes his own, or with\nwhich he identifies himself. It is one thing when the object in\nwhich self-satisfaction is sought is such as to prevent that\nself-satisfaction being found, because interfering with the\nrealisation of the seeker's possibilities or his progress towards\nperfection: it is another thing when it contributes to this end. In\nthe former case the man is a free agent in the act, because through\nhis identification of himself with a certain desired object--through\nhis adoption of it as his good--he makes the motive which determines\nthe act, and is accordingly conscious of himself as its author. But\nin another sense he is not free, because the objects to which his\nactions are directed are objects in which, according to the law of\nhis being, satisfaction of himself is not to be found. His will to\narrive at self-satisfaction not being adjusted to the law which\ndetermines where this self-satisfaction is to be found, he may be\nconsidered in the condition of a bondsman who is carrying out the\nwill of another, not his own. From this bondage he emerges into real\nfreedom, not by overcoming the law of his being, not by getting\nthe better of its necessity,--every fancied effort to do so is but\na new exhibition of its necessity,--but by making its fulfilment\nthe object of his will; by seeking the satisfaction of himself in\nobjects in which he believes it _should be_ found, and seeking\nit in them _because_ he believes it should be found in them. For\nthe objects so sought, however various otherwise, have the common\ncharacteristic that, because they are sought in such a spirit, in\nthem self-satisfaction is to be found; not the satisfaction of this\nor that desire, or of each particular desire, but that satisfaction,\notherwise called peace or blessedness, which consists in the whole\nman having found his object; which indeed we never experience in\nits fulness, which we only approach to fall away from it again, but\nof which we know enough to be sure that we only fail to attain it\nbecause we fail to seek it in the fulfilment of the law of our being,\nbecause we have not brought ourselves to 'gladly do and suffer what\nwe must.'\n\nTo the above statement several objections may be made. They will\nchiefly turn on two points; _(a)_ the use made of the term 'freedom';\n_(b)_ the view that a man is subject to a law of his being, in virtue\nof which he at once seeks self-satisfaction, and is prevented from\nfinding it in the objects which he actually desires, and in which he\nordinarily seeks it.\n\n[1] In that sense in which 'freedom' expresses a state of the soul,\nas distinct from a civil relation.\n\n2. As to the sense given to 'freedom,' it must of course be admitted\nthat every usage of the term to express anything but a social and\npolitical relation of one man to others involves a metaphor. Even in\nthe original application its sense is by no means fixed. It always\nimplies indeed some exemption from compulsion by others, but the\nextent and conditions of this exemption, as enjoyed by the 'freeman'\nin different states of society, are very various. As soon as the term\n'freedom' comes to be applied to anything else than an established\nrelation between a man and other men, its sense fluctuates much more.\nReflecting on their consciousness, on their 'inner life' (i.e. their\nlife as viewed from within), men apply to it the terms with which\nthey are familiar as expressing their relations to each other. In\nvirtue of that power of self-distinction and self-objectification,\nwhich he expresses whenever he says 'I,' a man can set over against\nhimself his whole nature or any of its elements, and apply to the\nrelation thus established in thought a term borrowed from relations\nof outward life. Hence, as in Plato, the terms 'freedom' and\n'bondage' may be used to express a relation between the man on the\none side, as distinguishing himself from all impulses that do not\ntend to his true good, and those impulses on the other. He is a\n'slave' when they are masters of him, 'free' when master of them.\nThe metaphor in this form was made further use of by the Stoics, and\ncarried on into the doctrines of the Christian Church. Since there is\nno kind of impulse or interest which a man cannot so distinguish from\nhimself as to present it as an alien power, of which the influence on\nhim is bondage, the particular application of the metaphor is quite\narbitrary. It may come to be thought that the only freedom is to be\nfound in a life of absolute detachment from all interests; a life\nin which the pure ego converses solely with itself or with a God,\nwho is the same abstraction under another name. This is a view into\nwhich both saints and philosophers have been apt to fall. It means\npractically, so far as it means anything, absorption in some one\ninterest with which the man identifies himself in exclusion of all\nother interests, which he sets over against himself as an influence\nto be kept aloof.\n\nWith St. Paul the application of the metaphor has a special character\nof its own. With him 'freedom' is specially freedom from the law,\nfrom ordinances, from the fear which these inspire,--a freedom which\nis attained through the communication of what he calls the 'spirit\nof adoption' or 'son-ship.' The law, merely as law or as an external\ncommand, is a source of bondage in a double sense. Presenting to man\na command which yet it does not give him power to obey, it destroys\nthe freedom of the life in which he does what he likes without\nrecognising any reason why he should not (the state of which St.\nPaul says 'I was alive without the law once'); it thus puts him in\nbondage to fear, and at the same time, exciting a wish for obedience\nto itself which other desires (\u03c6\u03c1\u03cc\u03bd\u03b7\u03bc\u03b1 \u03c3\u03b1\u03c1\u03ba\u03cc\u03c2) [1] prevent from being\naccomplished, it makes the man feel the bondage of the flesh. 'What\nI will, that I do not'; there is a power, the flesh, of which I am\nthe slave, and which prevents me from performing my will to obey the\nlaw. Freedom (also called 'peace,' and 'reconciliation') comes when\nthe spirit expressed in the law (for the law is itself 'spiritual'\naccording to St. Paul; the 'flesh' through which it is weak is mine,\nnot the law's) becomes the principle of action in the man. To the\nman thus delivered, as St. Paul conceives him, we might almost apply\nphraseology like Kant's. 'He is free because conscious of himself as\nthe author of the law which he obeys.' He is no longer a servant, but\na son. He is conscious of union with God, whose will as an external\nlaw he before sought in vain to obey, but whose 'righteousness is\nfulfilled' in him now that he 'walks after the spirit.' What was\nbefore 'a law of sin and death' is now a 'law of the spirit of life.'\n(See _Epistle to the Romans_, viii.)\n\n[1] [Greek \u03c6\u03c1\u03cc\u03bd\u03b7\u03bc\u03b1 \u03c3\u03b1\u03c1\u03ba\u03cc\u03c2 (phronima sarkos) = carnal mind (KJV) Tr]\n\n3. But though there is a point of connection between St. Paul's\nconception of freedom and bondage and that of Kant, which renders\nthe above phrase applicable in a certain sense to the 'spiritual\nman' of St. Paul, yet the two conceptions are very different. Moral\nbondage with Kant, as with Plato and the Stoics, is bondage to the\nflesh. The heteronomy of the will is its submission to the impulse\nof pleasure-seeking, as that of which man is not in respect of his\nreason the author, but which belongs to him as a merely natural\nbeing. A state of bondage to law, as such, he does not contemplate.\nIt might even be urged that Kant's 'freedom' or 'autonomy' of the\nwill, in the only sense in which he supposed it attainable by man, is\nvery much like the state described by St. Paul as that from which the\ncommunication of the spirit brings deliverance,--the state in which\n'I delight in the law of God after the inward man, but find another\nlaw in my members warring with the law of my reason and bringing\nme into captivity to the law of sin in my members.' For Kant seems\nto hold that the will is actually 'autonomous,' i.e. determined by\npure consciousness of what should be, only in rare acts of the best\nman. He argues rather for our being conscious of the possibility of\nsuch determination, as evidence of an ideal of what the good will\nis, than for the fact that anyone is actually so determined. And\nevery determination of the will that does not proceed from pure\nconsciousness of what should be he ascribes to the pleasure-seeking\nwhich belongs to man merely as a 'Natur-wesen,' or as St. Paul might\nsay 'to the law of sin in his members.' What, it may be asked, is\nsuch 'freedom,' or rather such consciousness of the possibility of\nfreedom, worth? May we not apply to it St. Paul's words, 'By the law\nis the knowledge of sin'? The practical result to the individual of\nthat consciousness of the possibility of freedom which is all that\nthe autonomy of will, as really attainable by man, according to\nKant's view, amounts to, is to make him aware of the heteronomy of\nhis will, of its bondage to motives of which reason is not the author.\n\n4. This is an objection which many of Kant's statements of his\ndoctrine, at any rate, fairly challenge. It was chiefly because he\nseemed to make freedom [1] an unrealised and unrealisable state,\nthat his moral doctrine was found unsatisfactory by Hegel. Hegel\nholds that freedom, as the condition in which the will is determined\nby an object adequate to itself, or by an object which itself as\nreason constitutes, is realised in the state. He thinks of the state\nin a way not familiar to Englishmen, a way not unlike that in which\nGreek philosophers thought of the \u03c0\u03cc\u03bb\u03b9\u03c2, [2] as a society governed\nby laws and institutions and established customs which secure the\ncommon good of the members of the society--enable them to make the\nbest of themselves--and are recognised as doing so. Such a state\nis 'objective freedom'; freedom is realised in it because in it\nthe reason, the self-determining principle operating in man as his\nwill, has found a perfect expression for itself (as an artist may\nbe considered to express himself in a perfect work of art); and the\nman who is determined by the objects which the well-ordered state\npresents to him is determined by that which is the perfect expression\nof his reason, and is thus free.\n\n[1] In the sense of 'autonomy of rational will,' or determination by\nan object which reason constitutes, as distinct from determination by\nan object which the man makes his own; this latter determination Kant\nwould have recognised as characteristic of every human act, properly\nso called.\n\n[2] [Greek \u03c0\u03cc\u03bb\u03b9\u03c2 (polis) = city-state Tr.]\n\n5. There is, no doubt, truth in this view. I have already tried to\nshow [1] how the self-distinguishing and self-seeking consciousness\nof man, acting in and upon those human wants and ties and affections\nwhich in their proper human character have as little reality apart\nfrom it as it apart from them, gives rise to a system of social\nrelations, with laws, customs, and institutions corresponding; and\nhow in this system the individual's consciousness of the absolutely\ndesirable, of something that should be, of an ideal to be realised\nin his life, finds a content or object which has been constituted\nor brought into being by that consciousness itself as working\nthrough generations of men; how interests are thus supplied to the\nman of a more concrete kind than the interest in fulfilment of a\nuniversally binding law because universally binding, but which yet\nare the product of reason, and in satisfying which he is conscious\nof attaining a true good, a good contributory to the perfection\nof himself and his kind. There is thus something in all forms of\nsociety that tends to the freedom [2] at least of some favoured\nindividuals, because it tends to actualise in them the possibility of\nthat determination by objects conceived as desirable in distinction\nfrom objects momentarily desired, which is determination by reason.\n[3] To put it otherwise, the effect of his social relations on a man\nthus favoured is that, whereas in all willing the individual seeks to\nsatisfy himself, this man seeks to satisfy himself, not as one who\nfeels this or that desire, but as one who conceives, whose nature\ndemands, a permanent good. So far as it is thus in respect of his\nrational nature that he makes himself an object to himself, his will\nis autonomous. This was the good which the ideal \u03c0\u03cc\u03bb\u03b9\u03c2, as conceived\nby the Greek philosophers, secured for the true \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2, the man who,\nentering into the idea of the \u03c0\u03cc\u03bb\u03b9\u03c2, was equally qualified \u1f04\u03c1\u03c7\u03b5\u03b9\u03bd\n\u03ba\u03b1\u1f76 \u1f04\u03c1\u03c7\u03b5\u03c3\u03b8\u03b1\u03b9. [4] No doubt in the actual Greek \u03c0\u03cc\u03bb\u03b9\u03c2 there was some\ntendency in this direction, some tendency to rationalise and moralise\nthe citizen. Without the real tendency the ideal possibility would\nnot have suggested itself. And in more primitive forms of society, so\nfar as they were based on family or tribal relations, we can see that\nthe same tendency must have been at work, just as in modern life the\nconsciousness of his position as member or head of a family, wherever\nit exists, necessarily does something to moralise a man. In modern\nChristendom, with the extension of citizenship, the security of\nfamily life to all men (so far as law and police can secure it), the\nestablishment in various forms of Christian fellowship of which the\nmoralising functions grow as those of the magistrate diminish, the\nnumber of individuals whom society awakens to interests in objects\ncontributory to human perfection tends to increase. So far the modern\nstate, in that full sense in which Hegel uses the term (as including\nall the agencies for common good of a law-abiding people), does\ncontribute to the realisation of freedom, if by freedom we understand\nthe autonomy of the will or its determination by rational objects,\nobjects which help to satisfy the demand of reason, the effort after\nself-perfection.\n\n[1] [In a previous course of lectures. See _Prolegomena to Ethics_,\nIII. iii. RLN]\n\n[2] In the sense of 'autonomy of will.'\n\n[3] [This last clause is queried in the MS. RLN]\n\n[4] [Greek \u03c0\u03cc\u03bb\u03b9\u03c2 (polis) = city-state, \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2 (polites) = citizen,\n\u1f04\u03c1\u03c7\u03b5\u03b9\u03bd \u03ba\u03b1\u1f76 \u1f04\u03c1\u03c7\u03b5\u03c3\u03b8\u03b1\u03b9 (archein kai archesthai) = to rule and to be\nruled Tr]\n\n6. On the other hand, it would seem that we cannot significantly\nspeak of freedom except with reference to individual persons; that\nonly in them can freedom be realised; that therefore the realisation\nof freedom in the state can only mean the attainment of freedom by\nindividuals through influences which the state (in the wide sense\nspoken of) supplies,--'freedom' here, as before, meaning not the mere\nself-determination which renders us responsible, but determination by\nreason, 'autonomy of the will'; and that under the best conditions\nof any society that has ever been such realisation of freedom is\nmost imperfect. To an Athenian slave, who might be used to gratify a\nmaster's lust, it would have been a mockery to speak of the state as\na realisation of freedom; and perhaps it would not be much less so to\nspeak of it as such to an untaught and under-fed denizen of a London\nyard with gin-shops on the right hand and on the left. What Hegel\nsays of the state in this respect seems as hard to square with facts\nas what St. Paul says of the Christian whom the manifestation of\nChrist has transferred from bondage into 'the glorious liberty of the\nsons of God.' In both cases the difference between the ideal and the\nactual seems to be ignored, and tendencies seem to be spoken of as\nif they were accomplished facts. It is noticeable that by uncritical\nreaders of St. Paul the account of himself as under the law (in\n_Romans_ vii.), with the 'law of sin in his members warring against\nthe law of his reason,' is taken as applicable to the regenerate\nChristian, though evidently St. Paul meant it as a description of the\nstate from which the Gospel, the 'manifestation of the Son of God\nin the likeness of sinful flesh,' set him free. They are driven to\nthis interpretation because, though they can understand St. Paul's\naccount of his deliverance as an account of a deliverance achieved\nfor them but not in them, or as an assurance of what is to be, they\ncannot adjust it to the actual experience of the Christian life. In\nthe same way Hegel's account of freedom as realised in the state does\nnot seem to correspond to the facts of society as it is, or even\nas, under the unalterable conditions of human nature, it ever could\nbe; though undoubtedly there is a work of moral liberation, which\nsociety, through its various agencies, is constantly carrying on for\nthe individual.\n\n7. Meanwhile it must be borne in mind that in all these different\nviews as to the manner and degree in which freedom is to be attained,\n'freedom' does not mean that the man or will is undetermined, nor\nyet does it mean mere self-determination, which (unless denied\naltogether, as by those who take the strictly naturalistic view\nof human action) must be ascribed equally to the man whose will\nis heteronomous or vicious, and to him whose will is autonomous;\nequally to the man who recognises the authority of law in what St.\nPaul would count the condition of a bondman, and to him who fulfils\nthe righteousness of the law in the spirit of adoption. It means\na particular kind of self-determination; the state of the man who\nlives indeed for himself, but for the fulfilment of himself as a\n'giver of law universal' (Kant); who lives for himself, but only\naccording to the true idea of himself, according to the law of his\nbeing, 'according to nature' (the Stoics); who is so taken up into\nGod, to whom God so gives the spirit, that there is no constraint\nin his obedience to the divine will (St. Paul); whose interests,\nas a loyal citizen, are those of a well-ordered state in which\npractical reason expresses itself (Hegel). Now none of these modes\nof self-determination is at all implied in 'freedom' according\nto the primary meaning of the term, as expressing that relation\nbetween one man and others in which he is secured from compulsion.\nAll that is so implied is that a man should have power to do what\nhe wills or prefers. No reference is made to the nature of the will\nor preference, of the object willed or preferred; whereas according\nto the usage of 'freedom' in the doctrines we have just been\nconsidering, it is not constituted by the mere fact of acting upon\npreference, but depends wholly on the nature of the preference, upon\nthe kind of object willed or preferred.\n\n8. If it were ever reasonable to wish that the usage of words had\nbeen other than it has been (any more than that the processes of\nnature were other than they are), one might be inclined to wish\nthat the term 'freedom' had been confined to the juristic sense of\nthe power to 'do what one wills': for the extension of its meaning\nseems to have caused much controversy and confusion. But, after all,\nthis extension does but represent various stages of reflection upon\nthe self-distinguishing, self-seeking, self-asserting principle, of\nwhich the establishment of freedom, as a relation between man and\nman, is the expression. The reflecting man is not content with the\nfirst announcement which analysis makes as to the inward condition\nof the free man, viz. that he can do what he likes, that he has the\npower of acting according to his will or preference. In virtue of the\nsame principle which has led him to assert himself against others,\nand thus to cause there to be such a thing as (outward) freedom,\nhe distinguishes himself from his preference, and asks how he is\nrelated to it, whether he determines it or how it is determined. Is\nhe free to will, as he is free to act; or, as the act is determined\nby the preference, is the preference determined by something else?\nThus Locke (_Essay_, II. 21) begins with deciding that freedom means\npower to do or forbear from doing any particular act upon preference,\nand that, since the will is merely the power of preference, the\nquestion whether the will is free is an unmeaning one (equivalent\nto the question whether one power has another power); that thus the\nonly proper question is whether a man (not his will) is free, which\nmust be answered affirmatively so far as he has the power to do or\nforbear, as above. But he recognises the propriety of the question\nwhether a man is free to will as well as to act. He cannot refuse to\ncarry back the analysis of what is involved in a man's action beyond\nthe preference of one possible action to another, and to inquire\nwhat is implied in the preference. It is when this latter question\nis raised, that language which is appropriate enough in a definition\nof outward or juristic freedom becomes misleading. It having been\ndecided that the man civilly free has power over his actions, to do\nor forbear according to preference, it is asked whether he has also\npower to prefer.\n\n9. But while it is proper to ask whether in any particular case a\nman has power over his actions, because his nerves and limbs and\nmuscles may be acted upon by another person or a force which is not\nhe or his, there is no appropriateness in asking the question in\nregard to a preference or will, because this cannot be so acted on.\nIf so acted on, it would not be a will or preference. There is no\nsuch thing as a will which a man is not conscious of as belonging to\nhimself, no such thing as an act of will which he is not conscious\nof as issuing from himself. To ask whether he has power over it,\nor whether some other power than he determines it, is like asking\nwhether he is other than himself. Thus the question whether a man,\nhaving power to act according to his will, or being free to act,\nhas also power over his will, or is free to will, has just the same\nimpropriety that Locke points out in the question whether the will is\nfree. The latter question, on the supposition that there is power to\nenact the will,--a supposition which is necessarily made by those who\nraise the ulterior question whether there is power over the will,--is\nequivalent, as Locke sees, to a question whether freedom is free.\nFor a will which there is power of enacting constitutes freedom, and\ntherefore to ask whether it is free is like asking (to use Locke's\ninstance) whether riches are rich ('rich' being a denomination from\nthe possession of riches, just as 'free' is a denomination from the\npossession of freedom, in the sense of a will which there is power\nto enact). But if there is this impropriety in the question whether\nthe will is free, there is an equal one in the question which Locke\nentertains, viz. whether man is free to will, or has power over his\nwill. It amounts to asking whether a certain power is also a power\nover itself: or, more precisely, whether a man possessing a certain\npower--that which we call freedom--has also the same power over that\npower.\n\n10. It may be said perhaps that we are here pressing words too\nclosely; that it is of course understood, when it is asked whether\na man has power over his will, that 'power' is used in a different\nsense from that which it bears when it is asked whether he has power\nto enact his will: that 'freedom,' in like manner, is understood to\nexpress a different kind of power or relation when we ask whether a\nman is free to will, and when we ask whether he is free to act. But\ngranting that all this has been understood, the misleading effects\nof the question in the form under consideration ('Is a man free\nto will as well as to act?' 'Has he power over his will?') remain\nwritten in the history of the 'free-will controversy.' It has mainly\nto answer for two wrong ways of thinking on the subject; _(a)_ for\nthe way of thinking of the determining motive of an act of will,\nthe object willed, as something apart from the will or the man\nwilling, so that in being determined by it the man is supposed not\nto be self-determined, but to be determined as one natural event by\nanother, or at best as a natural organism by the forces acting on it:\n_(b)_, for the view that the only way of escaping this conclusion is\nto regard the will as independent of motives, as a power of deciding\nbetween motives without any motive to determine the decision, which\nmust mean without reference to any object willed. A man, having (in\nvirtue of his power of self-distinction and self-objectification)\npresented his will to himself as something to be thought about, and\nbeing asked whether he has power over it, whether he is free in\nregard to it as he is free against other persons and free to use his\nlimbs and, through them, material things, this way or that, must\nvery soon decide that he is not. His will is himself. His character\nnecessarily shows itself in his will. We have already, in a previous\nlecture, [1] noticed the practical fallacy involved in a man's saying\nthat he cannot help being what he is, as if he were controlled by\nexternal power; but he being what he is, and the circumstances being\nwhat they are at any particular conjuncture, the determination of the\nwill is already given, just as an effect is given in the sum of its\nconditions. The determination of the will might be different, but\nonly through the man's being different, But to ask whether a man has\npower over determinations of his will, or is free to will as he is to\nact, as the question is commonly understood and as Locke understood\nit, is to ask whether, the man being what at any time he is, it\nis still uncertain (1) whether he will choose or forbear choosing\nbetween certain possible courses of action, and (2) supposing him to\nchoose one or other of them, which he will choose.\n\n[1] [_Prolegomena to Ethics_, Sections 107, ff.--RLN]\n\n11. Now we must admit that there is really no such uncertainty.\nThe appearance of it is due to our ignorance of the man and the\ncircumstances. If, however, because this is so, we answer the\nquestion whether a man has power over his will, or is free to\nwill, in the negative, [1] we at once suggest the conclusion that\nsomething else has power over it, viz. the strongest motive. We\nignore the truth that in being determined by a strongest motive,\nin the only sense in which he is really so determined, the man (as\npreviously explained) [2] is determined by himself, by an object of\nhis own making, and we come to think of the will as determined like\nany natural phenomenon by causes external to it. All this is the\nconsequence of asking questions about the relation between a man and\nhis will in terms only appropriate to the relation between the man\nand other men, or to that between the man and his bodily members or\nthe materials on which he acts through them.\n\n[1] Instead of saying (as we should) that it is one of those\ninappropriate questions to which there is no answer; since a man's\nwill is himself, and 'freedom' and 'power' express relations between\na man and something other than himself.\n\n[2] [See _Prolegomena to Ethics_, Section 105.--RLN]\n\n12. On the other side the consciousness of self-determination resists\nthis conclusion; but so long as we start from the question whether a\nman has power over his will, or is free to will as well as to act,\nit seems as if the objectionable conclusion could only be avoided by\nanswering this question in the affirmative. But to say that a man has\npower over determinations of his will is naturally taken to mean that\nhe can change his will while he himself remains the same; that given\nhis character, motives, and circumstances as these at any time are,\nthere is still something else required for the determination of his\nwill; that behind and beyond the will as determined by some motive\nthere is a will, itself undetermined by any motive, that determines\nwhat the determining motive shall be,--that 'has power over' his\npreference or choice, as this has over the motion of his bodily\nmembers. But an unmotived will is a will without an object, which is\nnothing. The power or possibility, beyond any actual determination of\nthe will, of determining what that determination shall be is a mere\nnegation of the actual determination. It is that determination as it\nbecomes after an abstraction of the motive or object willed, which\nin fact leaves nothing at all. If those moral interests, which are\nundoubtedly involved in the recognition of the distinction between\nman and any natural phenomenon, are to be made dependent on belief in\nsuch a power or abstract possibility, the case is hopeless.\n\n13. The right way out of the difficulty lies in the discernment\nthat the question whether a man is free to will, or has power over\nthe determinations of his will, is a question to which there is no\nanswer, because it is asked in inappropriate terms; in terms that\nimply some agency beyond the will which determines what the will\nshall be (as the will itself is an agency beyond the motions of the\nmuscles which determines what those motions shall be), and that as\nto this agency it may be asked whether it does or does not lie in\nthe man himself. In truth there is no such agency beyond the will\nand determining how the will shall be determined; not in the man,\nfor the will _is_ the self-conscious man; not elsewhere than in the\nman, not outside him, for the self-conscious man has no outside. He\nis not a body in space with other bodies elsewhere in space acting\nupon it and determining its motions. The self-conscious man is\ndetermined by objects, which in order to be objects must already be\nin consciousness, and in order to be _his_ objects, the objects which\ndetermine him, must already have been made his own. To say that they\nhave power over him or his will, and that he or his will has power\nover them, is equally misleading. Such language is only applicable\nto the relation between an agent and patient, when the agent and\nthe patient (or at any rate the agent) can exist separately. But\nself-consciousness and its object, will and its object, form a single\nindividual unity. Without the constitutive action of man or his will\nthe objects do not exist; apart from determination by some object\nneither he nor his will would be more than an unreal abstraction.\n\n14. If, however, the question is persisted in, 'Has a man power over\nthe determinations of his will?' we must answer both 'yes' and 'no.'\n'No,' in the sense that he is not other than his will, with ability\nto direct it as the will directs the muscles. 'Yes,' in the sense\nthat nothing external to him or his will or self-consciousness has\npower over them. 'No,' again, in the sense that, given the man and\nhis object as he and it at any time are, there is no possibility of\nthe will being determined except in one way, for the will is already\ndetermined, being nothing else than the man as directed to some\nobject. 'Yes,' in the sense that the determining object is determined\nby the man or will just as much as the man or will by the object. The\nfact that the state of the man, on which the nature of his object at\nany time depends, is a result of previous states, does not affect\nthe validity of this last assertion, since (as we have seen [1])\nall these states are states of a self-consciousness from which all\nalien determination, all determination except through the medium of\nself-consciousness, is excluded.\n\n[1] [_Prolegomena to Ethics_, Section 102. RLN]\n\n15. In the above we have not supposed any account to be taken of\nthe character of the objects willed in the application to the\nwill itself of the question 'free or not free,' which is properly\napplied only to an action (motion of the bodily members) or to a\nrelation between one man and other men. Those who unwisely consent\nto entertain the question whether a man is free to will or has\npower over determinations of his will, and answer it affirmatively\nor negatively, consider their answer, whether 'yes' or 'no,' to be\nequally applicable whatever the nature of the objects willed. If\nthey decide that a man is 'free to will,' they mean that he is so in\nall cases of willing, whether the object willed be a satisfaction of\nanimal appetite or an act of heroic self-sacrifice; and conversely,\nif they decide that he is not free to will, they mean that he is not\nso even in cases when the action is done upon cool calculation or\nupon a principle of duty, as much as when it is done on impulse or\nin passion. Throughout the controversy as to free will that has been\ncarried on among English psychologists this is the way in which the\nquestion has been commonly dealt with. The freedom, claimed or denied\nfor the will, has been claimed or denied for it irrespectively of\nthose objects willed, on the nature of which the goodness or badness\nof the will depends.\n\n16. On the other hand, with the Stoics, St. Paul, Kant, and Hegel, as\nwe have seen, the attainment of freedom (at any rate of the reality\nof freedom, as distinct from some mere possibility of it which\nconstitutes the distinctive human nature) depends on the character of\nthe objects willed. In all these ways of thinking, however variously\nthe proper object of will is conceived, it is only as directed to\nthis object, and thus (in Hegelian language) corresponding to its\nidea, that the will is supposed to be free. The good will is free,\nnot the bad will. Such a view of course implies some element of\nidentity between good will and bad will, between will as not yet\ncorresponding to its idea and will as so corresponding. St. Paul\nindeed, not being a systematic thinker and being absorbed in the\nidea of divine grace, is apt to speak as if there were nothing in\ncommon between the carnal or natural man (the will as in bondage to\nthe flesh) and the spiritual man (the will as set free); just as\nPlato commonly ignores the unity of principle in all a man's actions,\nand represents virtuous actions as coming from the God in man,\nvicious actions from the beast. Kant and Hegel, however,-- though\nthey do not consider the will as it is in every man, good and bad,\nto be free; though Kant in his later ethical writings, and Hegel\n(I think) always, confine the term 'Wille' to the will as having\nattained freedom or come to correspond to its idea, and apply the\nterm 'Willk\u00fcr' to that self-determining principle of action which\nbelongs to every man and is in their view the mere possibility, not\nactuality, of freedom,--yet quite recognise what has been above\ninsisted on as the common characteristic of all willing, the fact\nthat it is not a determination from without, like the determination\nof any natural event or agent, but the realisation of an object which\nthe agent presents to himself or makes his own, the determination\nby an object of a subject which itself consciously determines that\nobject; and they see that it is only for a subject free in this sense\n('an sich' but not 'fur sich,' \u03b4\u03c5\u03bd\u03ac\u03bc\u03b5\u03b9 but not \u03b5\u03bd\u03b5\u03c1\u03b3\u03b5\u03af\u1fb3) [1] that the\nreality of freedom can exist.\n\n[1] [Greek \u03b4\u03c5\u03bd\u03ac\u03bc\u03b5\u03b9 (dynamei) = potential, \u03b5\u03bd\u03b5\u03c1\u03b3\u03b5\u03af\u1fb3 (energiea) =\nactuality Tr]\n\n17. Now the propriety or impropriety of the use of 'freedom' to\nexpress the state of the will, not as directed to any and every\nobject, but only to those to which, according to the law of nature\nor the will of God or its 'idea,' it should be directed, is a matter\nof secondary importance. This usage of the term is, at any rate,\nno more a departure from the primary or juristic sense than is\nits application to the will as distinct from action in any sense\nwhatever. And certainly the unsophisticated man, as soon as the usage\nof 'freedom' to express exemption from control by other men and\nability to do as he likes is departed from, can much more readily\nassimilate the notion of states of the inner man described as bondage\nto evil passions, to terrors of the law, or on the other hand as\nfreedom from sin and law, freedom in the consciousness of union\nwith God, or of harmony with the true law of one's being, freedom\nof true loyalty, freedom in devotion to self-imposed duties, than\nhe can assimilate the notion of freedom as freedom to will anything\nand everything, or as exemption from determination by motives, or\nthe constitution by himself of the motives which determine his will.\nAnd there is so far less to justify the extension of the usage of\nthe term in these latter ways than in the former. It would seem\nindeed that there is a real community of meaning between 'freedom'\nas expressing the condition of a citizen of a civilised state, and\n'freedom' as expressing the condition of a man who is inwardly\n'master of himself.' That is to say, the practical conception by\na man ('practical' in the sense of having a tendency to realise\nitself) of a self-satisfaction to be attained in his becoming what\nhe should be, what he has it in him to be, in fulfilment of the\nlaw of his being,--or, to vary the words but not the meaning, in\nattainment of the righteousness of God, or in perfect obedience to\nself-imposed law,--this practical conception is the outcome of the\nsame self-seeking principle which appears in a man's assertion of\nhimself against other men and against nature ('against other men,' as\nclaiming their recognition of him as being what they are; 'against\nnature,' as able to use it). This assertion of himself is the demand\nfor freedom, freedom in the primary or juristic sense of power to\nact according to choice or preference. So far as such freedom is\nestablished for any man, this assertion of himself is made good;\nand such freedom is precious to him because it is an achievement\nof the self-seeking principle. It is a first satisfaction of its\nclaims, which is the condition of all other satisfaction of them.\nThe consciousness of it is the first form of self-enjoyment, of the\njoy of the self-conscious spirit in itself as in the one object of\nabsolute value.\n\n18. This form of self-enjoyment, however, is one which consists\nessentially in the feeling by the subject of a possibility rather\nthan a reality, of what it has it in itself to become, not of what it\nactually is. To a captive on first winning his liberty, as to a child\nin the early experience of power over his limbs and through them over\nmaterial things, this feeling of a boundless possibility of becoming\nmay give real joy; but gradually the sense of what it is not, of the\nvery little that it amounts to, must predominate over the sense of\nactual good as attained in it. Thus to the grown man, bred to civil\nliberty in a society which has learnt to make nature its instrument,\nthere is no self-enjoyment in the mere consciousness of freedom as\nexemption from external control, no sense of an object in which he\ncan satisfy himself having been obtained.\n\nStill, just as the demand for and attainment of freedom from external\ncontrol is the expression of that same self-seeking principle\nfrom which the quest for such an object proceeds, so 'freedom'\nis the natural term by which the man describes such an object to\nhimself,--describes to himself the state in which he shall have\nrealised his ideal of himself, shall be at one with the law which\nhe recognises as that which he ought to obey, shall have become all\nthat he has it in him to be, and so fulfil the law of his being\nor 'live according to nature.' Just as the consciousness of an\nunattainable ideal, of a law recognised as having authority but with\nwhich one's will conflicts, of wants and impulses which interfere\nwith the fulfilment of one's possibilities, is a consciousness of\nimpeded energy, a consciousness of oneself as for ever thwarted and\nheld back, so the forecast of deliverance from these conditions is\nas naturally said to be a forecast of 'freedom' as of peace' or\n'blessedness.' Nor is it merely to a select few, and as an expression\nfor a deliverance really (as it would seem) unattainable under\nthe conditions of any life that we know, but regarded by saints\nas secured for them in another world, and by philosophers as the\ncompletion of a process which is eternally complete in God, that\n'freedom' commends itself. To any popular audience interested in any\nwork of self-improvement (e.g. to a temperance-meeting seeking to\nbreak the bondage to liquor), it is as an effort to attain freedom\nthat such work can be most effectively presented. It is easy to tell\nsuch people that the term is being misapplied; that they are quite\n'free' as it is, because every one can do as he likes so long as he\ndoes not prevent another from doing so; that in any sense in which\nthere is such a thing as 'free will,' to get drunk is as much an\nact of free will as anything else. Still the feeling of oppression,\nwhich always goes along with the consciousness of unfulfilled\npossibilities, will always give meaning to the representation of the\neffort after any kind of self-improvement as a demand for 'freedom.'\n\n19. The variation in the meaning of 'freedom' having been thus\nrecognised and accounted for, we come back to the more essential\nquestion as to the truth of the view which underlies all theories\nimplying that freedom is in some sense the goal of moral endeavour;\nthe view, namely, that there is some will in a man with which many\nor most of his voluntary actions do not accord, a higher self that\nis not satisfied by the objects which yet he deliberately pursues.\nSome such notion is common to those different theories about freedom\nwhich in the rough we have ascribed severally to the Stoics, St.\nPaul, Kant, and Hegel. It is the same notion which was previously [1]\nput in the form, 'that a man is subject to a law of his being, in\nvirtue of which he at once seeks self-satisfaction, and is prevented\nfrom finding it in the objects which he actually desires, and in\nwhich he ordinarily seeks it.' 'What can this mean?' it maybe asked.\n'Of course we know that there are weak people who never succeed\nin getting what they want, either in the sense that they have not\nability answering to their will, or that they are always wishing\nfor something which yet they do not will. But it would not be very\nappropriate to apply the above formula to such people, for the man's\nwill to attain certain objects cannot be ascribed to the same law\nof his being as the lack of ability to attain them, nor his wish\nfor certain objects to the same law of his being as those stronger\ndesires which determine his will in a contrary direction. At any\nrate, if the proposition is remotely applicable to the man who is\nat once selfish and unsuccessful, how can it be true in any sense\neither of the man who is at once selfish and succeeds, who gets what\nhe wants (as is unquestionably the case with many people who live for\nwhat _a priori_ moralists count unworthy objects), or of the man who\n'never thinks about himself at all'? So far as the proposition means\nanything, it would seem to represent Kant's notion, long ago found\nunthinkable and impossible, the notion of there being two wills or\nselves in a man, the 'pure' will or ego and the 'empirical' will or\nego, the pure will being independent of a man's actual desires and\ndirected to the fulfilment of a universal law of which it is itself\nthe giver, the empirical will being determined by the strongest\ndesire and directed to this or that pleasure. In this proposition the\n'objects which the man actually desires and in which he ordinarily\nseeks satisfaction' are presumably objects of what Kant called the\n'empirical will,' while the 'law of his being' corresponds to Kant's\n'pure ego.' But just as Kant must be supposed to have believed in\nsome identity between the pure and empirical will, as implied in the\none term 'will,' though he does not explain in what this identity\nconsists, so the proposition before us apparently ascribes man's\nquest for self-satisfaction as directed to certain objects, to the\nsame law of his being which prevents it from finding it there. Is not\nthis nonsense?'\n\n[1] [Above, section 1 RLN]\n\n20. To such questions we answer as follows. The proposition before\nus, like all the theories of moral freedom which we have noticed,\nundoubtedly implies that the will of every man is a form of one\nconsciously self-realising principle, which at the same time is\nnot truly or fully expressed in any man's will. As a form of this\nself-realising principle it may be called, if we like, a 'pure ego'\nor 'the pure ego' of the particular person; as directed to this\nor that object in such a way that it does not truly express the\nself-realising principle of which it is a form, it may be called the\n'empirical ego' of that person. But if we use such language, it must\nbe borne in mind that the pure and empirical egos are still not two\negos but one ego; the pure ego being the self-realising principle\nconsidered with reference either to its idea, its possibility, what\nit has in itself to become, the law of its being, or to some ultimate\nactualisation of this possibility; the empirical ego being the same\nprinciple as it appears in this or that state of character, which\nresults from its action, but does not represent that which it has\nin itself to become, does not correspond to its idea or the law of\nits being. By a consciously self-realising principle is meant a\nprinciple that is determined to action by the conception of its own\nperfection, or by the idea of giving reality to possibilities which\nare involved in it and of which it is conscious as so involved; or,\nmore precisely, a principle which at each stage of its existence is\nconscious of a more perfect form of existence as possible for itself,\nand is moved to action by that consciousness. We must now explain a\nlittle more fully how we understand the relation of the principle\nin question to what we call our wills and our reason,--the will\nand reason of this man and that,--and how we suppose its action to\nconstitute the progress of morality.\n\n21. By 'practical reason' we mean a consciousness of a possibility of\nperfection to be realised in and by the subject of the consciousness.\nBy 'will' we mean the effort of a self-conscious subject to satisfy\nitself. In God, so far as we can ascribe reason and will to Him, we\nmust suppose them to be absolutely united. In Him there can be no\ndistinction between possibility and realisation, between the idea\nof perfection and the activity determined by it. But in men the\nself-realising principle, which is the manifestation of God in the\nworld of becoming, in the form which it takes as will at best only\n_tends_ to reconciliation with itself in the form which it takes as\nreason. Self-satisfaction, the pursuit of which is will, is sought\nelsewhere than in the realisation of that consciousness of possible\nperfection, which is reason. In this sense the object of will does\nnot coincide with the object of reason. On the other hand, just\nbecause it is self-satisfaction that is sought in all willing, and\nbecause by a self-conscious and self-realising subject it is only\nin the attainment of its own perfection that such satisfaction can\nbe found, the object of will is intrinsically or potentially, and\ntends to become actually, the same as that of reason. It is this\nthat we express by saying that man is subject to a law of his being\nwhich prevents him from finding satisfaction in the objects in\nwhich under the pressure of his desires it is his natural impulse\nto seek it. This 'natural impulse' (not strictly 'natural') is\nitself the result of the operation of the self-realising principle\nupon what would otherwise be an animal system, and is modified, no\ndoubt, with endless complexity in the case of any individual by the\nresult of such operation through the ages of human history. But\nthough the natural impulses of the will are thus the work of the\nself-realising principle in us, it is not in their gratification that\nthis principle can find the satisfaction which is only to be found\nin the consciousness of becoming perfect, of realising what it has\nit in itself to be. In order to any approach to this satisfaction\nof itself the self-realising principle must carry its work farther.\nIt must overcome the 'natural impulses,' not in the sense of either\nextinguishing them or denying them an object, but in the sense of\nfusing them with those higher interests, which have human perfection\nin some of its forms for their object. Some approach to this fusion\nwe may notice in all good men; not merely in those in whom all\nnatural passions, love, anger, pride, ambition, are enlisted in the\nservice of some great public cause, but in those with whom such\npassions are all governed by some such commonplace idea as that of\neducating a family.\n\n22. So far as this state is reached, the man may be said to be\nreconciled to 'the law of his being' which (as was said above)\nprevents him from finding satisfaction in the objects in which he\nordinarily seeks it, or anywhere but in the realisation in himself of\nan idea of perfection. Since the law is, in fact, the action of that\nself-realising subject which is his self, and which exists in God as\neternally self-realised, he may be said in this reconciliation to be\nat peace at once with himself and with God.\n\nAgain, he is 'free,' (1) in the sense that he is the author of the\nlaw which he obeys (for this law is the expression of that which\nis his self), and that he obeys it because conscious of himself\nas its author; in other words, obeys it from that impulse after\nself-perfection which is the source of the law or rather constitutes\nit. He is 'free' (2) in the sense that he not merely 'delights in\nthe law after the inward man' (to use St. Paul's phrase), while his\nnatural impulses are at once thwarted by it and thwart him in his\neffort to conform to it, but that these very impulses have been drawn\ninto its service, so that he is in bondage neither to it nor to the\nflesh.\n\nFrom the same point of view we may say that his will is 'autonomous,'\nconforms to the law which the will itself constitutes, because the\nlaw (which prevents him from finding satisfaction anywhere but in\nthe realisation in himself of an idea of perfection) represents the\naction in him of that self-realising principle of which his will\nis itself a form. There is an appearance of equivocation, however,\nin this way of speaking, because the 'will' which is liable not to\nbe autonomous, and which we suppose gradually to approach autonomy\nin the sense of conforming to the law above described, is not\nthis self-realising principle in the form in which this principle\ninvolves or gives the law. On the contrary, it is the self-realising\nprinciple as constituting that effort after self-satisfaction\nin each of us which is liable to be and commonly is directed to\nobjects which are not contributory to the realisation of the idea of\nperfection,--objects which the self-realising principle accordingly,\nin the fulfilment of its work, has to set aside. The equivocation\nis pointed out by saying, that the good will is 'autonomous' in the\nsense of conforming to a law which the will itself, _as reason_,\nconstitutes; which is, in fact, a condensed way of saying, that the\ngood will is the will of which the object coincides with that of\npractical reason; that will has its source in the same self-realising\nprinciple which yields that consciousness of a possible\nself-perfection which we call reason, and that it can only correspond\nto its idea, or become what it has the possibility of becoming, in\nbeing directed to the realisation of that consciousness.\n\n23. According to the view here taken, then, reason and will, even\nas they exist in men, are one in the sense that they are alike\nexpressions of one self-realising principle. In God, or rather in\nthe ideal human person as he really exists in God, they are actually\none; i.e. self-satisfaction is for ever sought and found in the\nrealisation of a completely articulated or thoroughly filled idea\nof the perfection of the human person. In the historical man--in\nthe men that have been and are coming to be--they _tend_ to unite.\nIn the experience of mankind, and again in the experience of the\nindividual as determined by the experience of mankind, both the idea\nof a possible perfection of man, the idea of which reason is the\nfaculty, and the impulse after self-satisfaction which belongs to\nthe will, undergo modifications which render their reconciliation\nin the individual (and it is only in individuals that they can\nbe reconciled, because it is only in them that they exist) more\nattainable. These modifications may be stated summarily as (1) an\nincreasing concreteness in the idea of human perfection; its gradual\ndevelopment from the vague inarticulate feeling that there is such a\nthing into a conception of a complex organisation of life, with laws\nand institutions, with relationships, courtesies, and charities, with\narts and graces through which the perfection is to be attained; and\n(2) a corresponding discipline, through inheritance and education, of\nthose impulses which may be called 'natural' in the sense of being\nindependent of any conscious direction to the fulfilment of an idea\nof perfection. Such discipline does not amount to the reconciliation\nof will and reason; it is not even, properly speaking, the beginning\nof it; for the reconciliation only begins with the direction of the\nimpulse after self-satisfaction to the realisation of an idea of\nwhat should be, as such (_because_ it should be); and no discipline\nthrough inheritance or education, just because it is only impulses\nthat are natural (in the sense defined) which it can affect, can\nbring about this direction, which, in theological language, must\nbe not of nature, but of grace. On the contrary, the most refined\nimpulses may be selfishly indulged; i.e. their gratification may\nbe made an object in place of that object which consists in the\nrealisation of the idea of perfection. But unless a discipline and\nrefinement of the natural impulses, through the operation of social\ninstitutions and arts, went on _pari passu_ with the expression of\nthe idea of perfection in such institutions and arts, the direction\nof the impulses of the individual by this idea, when in some form or\nother it has been consciously awakened in him, would be practically\nimpossible. The moral progress of mankind has no reality except as\nresulting in the formation of more perfect individual characters;\nbut on the other hand every progress towards perfection on the\npart of the individual character presupposes some embodiment or\nexpression of itself by the self-realising principle in what may be\ncalled (to speak most generally) the organisation of life. It is\nin turn, however, only through the action of individuals that this\norganisation of life is achieved.\n\n24. Thus the process of reconciliation between will and reason,--the\nprocess through which each alike comes actually to be or to do what\nit is and does in possibility, or according to its idea, or according\nto the law of its being,--so far as it comes within our experience\nmay be described as follows. A certain action of the self-realising\nprinciple, of which individuals susceptible in various forms to the\ndesire to better themselves have been the media, has resulted in\nconventional morality; in a system of recognised rules (whether in\nthe shape of law or custom) as to what the good of society requires,\nwhich no people seem to be wholly without. The moral progress of\nthe individual, born and bred under such a system of conventional\nmorality, consists (1) in the adjustment of the self-seeking\nprinciple in him to the requirements of conventional morality, so\nthat the modes in which he seeks self-satisfaction are regulated\nby the sense of what is expected of him. This adjustment (which it\nis the business of education to effect) is so far a determination\nof the will as in the individual by objects which the universal or\nnational human will, of which the will of the individual is a partial\nexpression, has brought into existence, and is thus a determination\nof the will by itself. It consists (2) in a process of reflection,\nby which this feeling in the individual of what is expected of\nhim becomes a conception (under whatever name) of something that\nuniversally should be, of something absolutely desirable, of a single\nend or object of life. The content of this conception may be no more\nthan what was already involved in the individual's feeling of what is\nexpected of him; that is to say, if called upon to state in detail\nwhat it is that has to be done for the attainment of the absolute\nmoral end or in obedience to the law of what universally should\nbe, he might only be able to specify conduct which, apart from any\nsuch explicit conception, he felt was expected of him. For all that\nthere is a great difference between feeling that a certain line of\nconduct is expected of me and conceiving it as a form of a universal\nduty. So long as the requirements of established morality are felt\nin the former way, they present themselves to the man as imposed\nfrom without. Hence, though they are an expression of practical\nreason, as operating in previous generations of men, yet, unless the\nindividual conceives them as relative to an absolute end common to\nhim with all men, they become antagonistic to the practical reason\nwhich operates in him, and which in him is the source at once of the\ndemand for self-satisfaction and of the effort to find himself in,\nto carry his own unity into, all things presented to him. Unless the\nactions required of him by 'the divine law, the civil law, and the\nlaw of opinion or reputation' (to use Locke's classification) tend to\nrealise his own idea of what should be or is good on the whole, they\ndo not form an object which, as contemplated, he can harmonise with\nthe other objects which he seeks to understand, nor, as a practical\nobject, do they form one in the attainment of which he can satisfy\nhimself. Hence before the completion of the process through which\nthe individual comes to conceive the performance of the actions\nexpected of him under the general form of a duty which in the freedom\nof his own reason he recognises as binding, there is apt to occur a\nrevolt against conventional morality. The issue of this may either\nbe an apparent suspension of the moral growth of the individual,\nor a clearer apprehension of the spirit underlying the letter of\nthe obligations laid on him by society, which makes his rational\nrecognition of duty, when arrived at, a much more valuable influence\nin promoting the moral growth of society.\n\n25. Process (2), which may be called a reconciliation of reason with\nitself, because it is the appropriation by reason as a personal\nprinciple in the individual of the work which reason, acting through\nthe media of other persons, has already achieved in the establishment\nof conventional morality, is the condition of the third stage in\nwhich the moral progress of the individual consists; viz. the growth\nof a personal interest in the realisation of an idea of what should\nbe, in doing what is believed to contribute to the absolutely\ndesirable, or to human perfection, because it is believed to do so.\nJust so far as this interest is formed, the reconciliation of the two\nmodes in which the practical reason operates in the individual is\neffected. The demand for self-satisfaction (practical reason as the\nwill of the individual) is directed to the realisation of an ideal\nobject, the conceived 'should be,' which practical reason as our\nreason constitutes. The 'autonomy of the will' is thus attained in\na higher sense than it is in the 'adjustment' described under (1),\nbecause the objects to which it is directed are not merely determined\nby customs and institutions which are due to the operation of\npractical reason in previous ages, but are embodiments or expressions\nof the conception of what absolutely should be as formed by the man\nwho seeks to satisfy himself in their realisation. Indeed, unless in\nthe stage of conformity to conventional morality the principle of\nobedience is some feeling (though not a clear conception) of what\nshould be, of the desirable as distinct from the desired,--if it is\nmerely fear of pain or hope of pleasure,--there is no approach to\nautonomy of the will or moral freedom in the conformity. We must not\nallow the doctrine that such freedom consists in a determination\nof the will by reason, and the recognition of the truth that the\nrequirements of conventional morality are a product of reason as\noperating in individuals of the past, to mislead us into supposing\nthat there is any moral freedom, or anything of intrinsic value,\nin the life of conventional morality as governed by 'interested\nmotives,' by the desire, directly or indirectly, to obtain pleasure.\nThere can be no real determination of the will by reason unless both\nreason and will are operating in one and the same person. A will\nis not really anything except as the will of a person, and, as we\nhave seen, a will is not really determinable by anything foreign\nto itself: it is only determinable by an object which the person\nwilling makes his own. As little is reason really anything apart from\na self-conscious subject, or as other than an idea of perfection\nto be realised in and by such a subject. The determination of will\nby reason, then, which constitutes moral freedom or autonomy, must\nmean its determination by an object which a person willing, in\nvirtue of his reason, presents to himself, that object consisting in\nthe realisation of an idea of perfection in and by himself. Kant's\nview that the action which is merely 'pflichtm\u00e4ssig,' not done 'aus\nPflicht,' [1] is of no moral value in itself, whatever may be its\npossible value as a means to the production of the will which does\nact 'aus Pflicht,' is once for all true, though he may have taken\ntoo narrow a view of the conditions of actions done 'aus Pflicht,'\nespecially in supposing (as he seems to do) that it is necessary\nto them to be done painfully. There is no determination of will by\nreason, no moral freedom, in conformity of action to rules of which\nthe establishment is due to the operation of reason or the idea of\nperfection in men, unless the principle of conformity in the persons\nconforming is that idea itself in some form or other.\n\n[1] [German aus Pflicht = from duty, pflichtm\u00e4ssig = consistent with\nduty--Tr.]\n\nLECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION.\n\nNote of the Editor.\n\nThese lectures, which are partly critical and partly expository,\ntreat of the moral grounds upon which the state is based and upon\nwhich obedience to the law of the state is justified. They were\ndelivered in 1879-80, following upon the course from which the\ndiscussion of Kant's moral theory in this volume is taken. The two\ncourses are directly connected, civil institutions being throughout\nregarded as the external expression of the moral progress of mankind,\nand as supplying the material through which the idea of perfection\nmust be realised.\n\nAs is implied in section 5, the inquiry into the nature of political\nobligation forms part of a wider inquiry into the concrete forms\nof morality in general, 'the detail of goodness.' The lecturer\nhad intended to complete the course by a consideration of 'social\nvirtues' and 'moral sentiments'; but this intention was not carried\nout. (See section 251.)\n\nLECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION.\n\n    A. _THE GROUNDS OF POLITICAL OBLIGATION._\n\n1. The subject of this course of lectures is the principles of\npolitical obligation; and that term is intended to include the\nobligation of the subject towards the sovereign, the obligation of\nthe citizen towards the state, and the obligation of individuals\nto each other as enforced by a political superior. My purpose is\nto consider the moral function or object served by law, or by the\nsystem, of rights and obligations which the state enforces, and in so\ndoing to discover the true ground or justification for obedience to\nlaw. My plan will be (1) to state in outline what I consider the true\nfunction of law to be, this being at the same time the true ground of\nour moral duty to obey the law; and throughout I distinguish moral\nduty from legal obligation; (2) to examine the chief doctrines of\npolitical obligation that have been current in modern Europe, and by\ncriticising them to bring out more clearly the main points of a truer\ndoctrine; (3) to consider in detail the chief rights and obligations\nenforced in civilised states, inquiring what is their justification,\nand what is the ground for respecting them on the principle stated.\n\n2. In previous lectures I have explained what I understand moral\ngoodness to be, and how it is possible that there should be such\na thing; in other words, what are the conditions on the part of\nreason and will which are implied in our being able to conceive\nmoral goodness as an object to be aimed at, and to give some partial\nreality to the conception. Our results on this question may be\nbriefly stated as follows.\n\nThe highest moral goodness we found was an attribute of character,\nin so far as it issued in acts done for the sake of their goodness,\nnot for the sake of any pleasure or any satisfaction of desire\nwhich they bring to the agent. But it is impossible that an action\nshould be done for the sake of its goodness, unless it has been\npreviously contemplated as good for some other reason than that which\nconsists in its being done for the sake of its goodness. It must\nhave been done, or conceived as possible to be done, and have been\naccounted good, irrespectively of the being done from this which we\nultimately come to regard as the highest motive. In other words, a\nprior morality, founded upon interests which are other than the pure\ninterest in being good, and governed by rules of conduct relative to\na standard of goodness other than that which makes it depend on this\ninterest, is the condition of there coming to be a character governed\nby interest in an ideal of goodness. Otherwise this ideal would be an\nempty one; it would be impossible to say what the good actions were,\nthat were to be done for the sake of their goodness; and the interest\nin this ideal would be impossible, since it would be an interest\nwithout an object.\n\n3. When, however, morality of the latter kind has come to be\nrecognised as the highest or the only true morality, the prior\nmorality needs to be criticised from the point of view thus gained.\nThose interests, other than the interest in being good, which form\nthe motives on the part of the individual on which it rests, will\nnot indeed be rejected as of no moral value; for no one can suppose\nthat without them, or except as regulating them, the pure interest\nin being good could determine conduct at all. But they will be\nestimated according to their value as leading up to, or as capable\nof becoming elements in, a character in which this interest is the\ngoverning principle. Again, those rules of conduct, according to\nwhich the terms right and wrong, good and bad, are commonly applied,\nand which, as was just now said, are relative to a standard certainly\nnot founded on the conception of the good as consisting in the\ncharacter described, are not indeed to be rejected; for without\nthem there would be nothing to define the duties which the highest\ncharacter is prepared to do for their own sake. But they have to be\nrevised according to a method which inquires into their rationale\nor justification, as conditions of approximation to the highest\ncharacter.\n\n4. Such a criticism of moral interests--of the general motives\nwhich determine moral conduct and regulate such moral approbation\nor disapprobation as is not based on a strict theory of moral\ngood--may be called by the name of 'a theory of moral sentiments.'\nThe criticism of recognised rules of conduct will fall under two\nheads, according as these rules are embodied in positive law (law of\nwhich the observance is enforced on the individual by a political\nsuperior), or only form part of the 'law of opinion' (part of what\nthe individual feels to be expected of him by some person or persons\nto whose expectations he ought to conform).\n\n5. Moral interests are so greatly dependent on generally recognised\nrules of conduct that the criticism of the latter should come\nfirst. The law of opinion, again, in so many ways presupposes a\nsocial fabric supported by 'positive' law, that we can only fairly\ntake account of it when we have considered the moral value and\njustifiability of the fabric so supported. I propose therefore to\nbegin our inquiry into the detail of goodness--into the particular\nkinds of conduct which the man wishing to do good for the sake\nof its goodness is entitled to count good--by considering what\nis of permanent moral value in the institutions of civil life,\nas established in Europe; in what way they have contributed and\ncontribute to the possibility of morality in the higher sense of\nthe term, and are justified, or have a moral claim upon our loyal\nconformity, in consequence.\n\n6. The condition of a moral life is the possession of will and\nreason. Will is the capacity in a man of being determined to action\nby the idea of a possible satisfaction of himself. An act of\nwill is an action so determined. A state of will is the capacity\nas determined by the particular objects in which the man seeks\nself-satisfaction; and it becomes a character in so far as the\nself-satisfaction is habitually sought in objects of a particular\nkind. Practical reason is the capacity in a man of conceiving the\nperfection of his nature as an object to be attained by action.\nAll moral ideas have their origin in reason, i.e. in the idea of a\npossible self-perfection to be attained by the moral agent. This\ndoes not mean that the moral agent in every stage of his progress\ncould state this idea to himself in an abstract form, any more\nthan in every stage in the acquisition of knowledge about nature a\nman can state to himself in an abstract form the conception of the\nunity of nature, which yet throughout conditions the acquisition of\nhis knowledge. Ideas do not first come into existence, or begin to\noperate, upon the formation of an abstract expression for them. This\nexpression is only arrived at upon analysis of a concrete experience,\nwhich they have rendered possible. Thus we only learn to express the\nidea of self-perfection in that abstract form upon an analysis of an\nexperience of self-improvement which we have ourselves gone through,\nand which must have been gone through by those with whom we are\nconnected by the possession of language and an organisation of life,\nhowever elementary: but the same analysis shows that the same idea\nmust have been at work to make such experience possible. In this idea\nall particular moral ideas--all ideas of particular forms of conduct\nas estimable--originate, though an abstract expression for the latter\nis arrived at much sooner than such an expression for the idea in\nwhich they originate. They arise, as the individual's conception of\nthe society on the well-being of which his own depends, and of the\nconstituents of that well-being, becomes wider and fuller; and they\nare embodied in the laws, institutions, and social expectation, which\nmake conventional morality. This embodiment, again, constitutes the\nmoral progress of mankind. This progress, however, is only a _moral_\nprogress in so far as it tends to bring about the harmony of will and\nreason, in the only form in which it can really exist, viz. in the\ncharacters of persons. And this result is actually achieved, in so\nfar as upon habits disciplined by conformity to conventional morality\nthere supervenes an intelligent interest in some of the objects\ncontributory to human perfection, which that conventional morality\nsubserves, and in so far as that interest becomes the dominant\ninterest of the character.\n\n7. The value then of the institutions of civil life lies in their\noperation as giving reality to these capacities of will and reason,\nand enabling them to be really exercised. In their general effect,\napart from particular aberrations, they render it possible for a\nman to be freely determined by the idea of a possible satisfaction\nof himself, instead of being driven this way and that by external\nforces, and thus they give reality to the capacity called will:\nand they enable him to realise his reason, i.e. his idea of\nself-perfection, by acting as a member of a social organisation in\nwhich each contributes to the better-being of all the rest. So far\nas they do in fact thus operate they are morally justified, and may\nbe said to correspond to the 'law of nature,' the _jus naturae_,\naccording to the only sense in which that phrase can be intelligibly\nused.\n\n8. There has been much controversy as to what the _jus naturae_\n('Naturrecht') really is, or whether there is such a thing at all.\nAnd the controversy, when it comes to be dealt with in English, is\nfurther embarrassed by the fact that we have no one term to represent\nthe full meaning of 'jus' or 'Recht,' as a system of correlative\nrights and obligations, actually enforced or that should be enforced\nby law. But the essential questions are: (1) whether we are entitled\nto distinguish the rights and obligations which are anywhere actually\nenforced by law from rights and obligations which really exist though\nnot enforced; and (2), if we are entitled to do so, what is to be\nour criterion of rights and obligations which are really valid, in\ndistinction from those that are actually enforced.\n\n9. No one would seriously maintain that the system of rights and\nobligations, as it is anywhere enforced by law,--the 'jus' or 'Recht'\nof any nation--is all that it ought to be. Even Hobbes holds that\na law, though it cannot be unjust, may be pernicious. But there\nhas been much objection to the admission of _natural_ rights and\nobligations. At any rate the phrase is liable to misinterpretation.\nIt may be taken to imply that rights and obligations can exist in a\n'state of nature'--a state in which every individual is free to do as\nhe likes--; that legal rights and obligations derive their authority\nfrom a voluntary act by which individuals contracted themselves\nout of this state; and that the individual retains from the state\nof nature certain rights with which no legal obligations ought to\nconflict. Such a doctrine is generally admitted to be untenable; but\nit does not follow from this that there is not a true and important\nsense in which natural rights and obligations exist,--the same sense\nas that in which duties may be said to exist though unfulfilled.\nThere is a system of rights and obligations which _should be_\nmaintained by law, whether it is so or not, and which may properly be\ncalled 'natural'; not in the sense in which the term 'natural' would\nimply that such a system ever did exist or could exist independently\nof force exercised by society over individuals, but 'natural' because\nnecessary to the end which it is the vocation of human society to\nrealise.\n\n10. The 'jus naturae,' thus understood, is at once distinguished from\nthe sphere of moral duty, and relative to it. It is distinguished\nfrom it because admitting of enforcement by law. Moral duties do not\nadmit of being so enforced. The question sometimes put, whether moral\nduties should be enforced by law, is really an unmeaning one; for\nthey simply cannot be enforced. They are duties to act, it is true,\nand an act can be enforced: but they are duties to act from certain\ndispositions and with certain motives, and these cannot be enforced.\nNay, the enforcement of an outward act, the moral character of which\ndepends on a certain motive and disposition, may often contribute to\nrender that motive and disposition impossible: and from this fact\narises a limitation to the proper province of law in enforcing acts,\nwhich will have to be further considered below. When obligations\nthen are spoken of in this connection, as part of the 'jus naturae'\ncorrelative to rights, they must always be understood not as moral\nduties, not as relative to states of will, but as relative to\noutward acts, of which the performance or omission can and should\nbe enforced. There is a moral duty to discharge such obligations,\nand to do so in a certain spirit, but the obligation is such as that\nwith which law has to do or may have to do, is relative to an outward\nact merely, and does not amount to a moral duty. There is a moral\nduty in regard to obligations, but there can be no obligation in\nregard to moral duties. Thus the 'jus naturae'--the system of rights\nand obligations, as it should become no less than as it actually is\nmaintained--is distinct from morality in the proper sense. But it is\nrelative to it. This is implied in saying that there is a moral duty\nin regard to actual obligations, as well as in speaking of the system\nof rights and obligations as it should become. If such language is\njustifiable, there must be a moral ground both for conforming to, and\nfor seeking to develope and improve, established 'Recht'; a moral\nground which can only lie in the moral end served by that established\nsystem.\n\n11. Thus we begin the ethical criticism of law with two\nprinciples:--(1) that nothing but external acts can be matter of\n'obligation' (in the restricted sense); and (2) that, in regard\nto that which can be made matter of obligation, the question what\nshould be made matter of obligation--the question how far rights and\nobligations, as actually established by law, correspond to the true\n'jus naturae'--must be considered with reference to the moral end, as\nserving which alone law and the obligations imposed by law have their\nvalue.[1]\n\n[1] There are two definitions of 'Recht' or 'jus naturae,' quoted\nby Ulrici (_Naturrecht_, p. 219), which embody the truths conveyed\nin these statements. (1) Krause defines 'Recht' as 'das organische\nGanze der \u00e4usseren Bedingungen des Vernunftlebens,' 'the organic\nwhole of the outward conditions necessary to the rational life.' (2)\nHenrici says that 'Recht' is 'was der Idee der Unverletzbarkeit der\nmateriellen wesentlichen Bedingungen des moralischen Menschenthums,\nd. h. der menschlichen Pers\u00f6nlichkeit nach ihrer Existenz und\nihrer Vervollkommnung, oder der unver\u00e4usserlichen Menscheng\u00fcter im\n\u00e4usserlichen Verkehr entspricht': i.e. 'Right is what' (or, 'that\nis properly matter of legal obligation which') 'in the outward\nintercourse of men corresponds to the idea of the inviolability of\nthe essential material conditions of a moral humanity, i.e. of the\nhuman personality in respect of its existence and its perfection;'\nor, more simply, 'Right is that which is really necessary to the\nmaintenance of the material conditions essential to the existence and\nperfection of human personality.' Cf. Trendelenburg, _Naturrecht_,\nSect. 46. 'Das Recht ist im sittlichen Ganzen der Inbegriff\nderjenigen allgemeinen Bestimmungen des Handelns, durch welche es\ngeschieht dass das sittliche Ganze und seine Gliederung sich erhalten\nund weiter bilden kann.' Afterwards he emphasises the words 'des\nHandelns,' and adds: 'Zwar kann das Handeln nicht ohne den Willen\ngedacht werden, der zum Grunde liegt: aber die Rechtbestimmungen\nsind nicht Bestimmungen des Willens als solchen, was dem innern\nGebiet, der Ethik der Gesinnung, anheimfallen w\u00fcrde. Der Wille der\nnicht Handlung wird entzieht sich dem Recht. Wenn das Recht Schuld\nund Versehen, _dolus_ und _culpa_, in sein Bereich zieht, so sind\nsie als innere aber charakteristische Beschaffenbeiten des Handelns\nanzusehen.'\n\n12. Before proceeding, some remarks have to be made as to what is\nimplied in these principles, _(a)_ Does the law, or is it possible\nthat it should, confine its view to external acts? What exactly is\nmeant by an external act? In the case of obligations which I am\nlegally punishable for disregarding, the law, in deciding whether\npunishment is or is not due, takes account of much beside the\nexternal act; and this implies that much beside external action\nis involved in legal obligation. In the case where the person or\nproperty of another is damaged by me, the law does not inquire\nmerely whether the act of damage was done, and done by means of my\nbodily members, but whether it was done intentionally: and if not\ndone with the direct intention of inflicting the damage, whether\nthe damage arose in a manner that might have been foreseen out of\nsomething which I did intend to do: whether, again, if it was done\nquite accidentally the accident was due to culpable negligence. This,\nhowever, does not show that the law can enforce or prevent anything\nbut external action, but only that it is _action_ which it seeks to\nenforce or prevent, for without intention there is no action. We talk\nindeed of a man acting against his will, but if this means acting\nagainst intention it is what it is impossible to do. What I call an\nact done against my will is either (1) an act done by someone else\nusing my body, through superior force, as a means: in which case\nthere is an act, but it is not mine (e.g. if another uses my hand\nto pull the trigger of a gun by which someone is shot); or (2) a\nnatural event in which my limbs are affected in a certain way which\ncauses certain results to another person (e.g. if the rolling of a\nship throws me against another person who is thus thrown into the\nwater); or (3) an act which I do under the influence of some strong\ninducement (e.g. the fear of death), but which is contrary to some\nstrong wish. In this case the act is mine, but mine because I intend\nit; because it is not against my will as = intention. In saying,\nthen, that the proper, because the only possible, function of law is\nto enforce the performance of or abstinence from external actions,\nit is implied that its function is to produce or prevent certain\nintentions, for without intention on the part of someone there is no\nact.\n\n13. But if an act necessarily includes intention, what is the nature\nof the restriction implied in calling it external? An external action\nis a determination of will as exhibited in certain motions of the\nbodily members which produce certain effects in the material world;\nnot a determination of the will as arising from certain motives\nand a certain disposition. All that the law can do is to enjoin or\nforbid determinations of will as exhibited in such motions, &c. It\ndoes indeed present a motive, for it enforces its injunctions and\nprohibitions primarily by fear, by its threat of certain consequences\nif its commands are disobeyed. This enforcement is not an exercise\nof physical force in the strict sense, for in this sense no force\ncan produce an action, since it cannot produce a determination of\nwill; and the only way in which the law or its administrators employ\nsuch force is not in the production but in the prevention of action\n(as when a criminal is locked up or the police prevent mischievous\npersons from assaulting us or breaking into our houses). But though,\nin enforcing its commands by threats, the law is presenting a motive,\nand thus, according to our distinction, affecting action on its\ninner side, it does this solely for the sake of the external act. It\ndoes not regard the relation of the act to the motive fear as of any\nintrinsic importance. If the action is performed without this motive\never coming into play under the influence of what the moralist counts\nhigher motives, the purpose of the law is equally satisfied. Indeed,\nit is always understood that its purpose is most thoroughly served\nwhen the threat of pains and penalties has ceased to be necessary,\nand the obligations correlative to the relations of individuals and\nof societies are fulfilled from other motives. Its business is to\nmaintain certain conditions of life--to see that certain actions are\ndone which are necessary to the maintenance of those conditions,\nothers omitted which would interfere with them. It has nothing to do\nwith the motive of the actions or omissions, on which, however, the\nmoral value of them depends.\n\n14. It appears, then, that legal obligations--obligations which can\npossibly form the subject of positive law--can only be obligations to\ndo or abstain from certain acts, not duties of acting from certain\nmotives, or with a certain disposition. It is not a question whether\nthe law should or should not oblige to anything but performance of\noutward acts. It simply cannot oblige to anything else, because the\nonly means at its command for obtaining the fulfilment of obligations\nare (1) threats of pain and offers of reward, by means of which it is\npossible indeed to secure the general performance of certain acts,\nbut not their performance from the motive even of fear of the pain\nthreatened or hope of the reward offered, much less from any higher\nmotive; (2) the employment of physical force, _(a)_ in restraining\nmen disposed to violate obligations, _(b)_ in forcibly applying the\nlabour or the property of those who violate obligations to make good\nthe breach, so far as is possible: (as, e.g., when the magistrate\nforestalls part of a man's wages to provide for a wife whom he has\ndeserted, or when the property of a debtor is seized for the benefit\nof his creditors.)\n\n15. Only outward acts, then, _can_ be matter of legal obligation; but\nwhat sort of outward acts _should_ be matter of legal obligation?\nThe answer to this question arises out of the above consideration of\nthe means which law employs to obtain the fulfilment of obligations,\ncombined with the view of law as relative to a moral end, i.e. the\nformation of a society of persons, acting from a certain disposition,\nfrom interest in the society as such. Those acts only should be\nmatter of legal injunction or prohibition of which the performance or\nomission, irrespectively of the motive from which it proceeds, is so\nnecessary to the existence of a society in which the moral end stated\ncan be realised, that it is better for them to be done or omitted\nfrom that unworthy motive which consists in fear or hope of legal\nconsequences than not to be done at all.\n\n16. We distinguish, then, the system of rights actually maintained\nand obligations actually enforced by legal sanctions ('Recht' or\n'jus') from the system of relations and obligations which _should be_\nmaintained by such sanctions ('Naturrecht'); and we hold that those\nactions or omissions should be made obligations which, when made\nobligations, serve a certain moral end; that this end is the ground\nor justification or rationale of legal obligation; and that thus we\nobtain a general rule, of both positive and negative application, in\nregard to the proper matter or content of legal obligation. For since\nthe end consists in action proceeding from a certain disposition,\nand since action done from apprehension of legal consequences does\nnot proceed from that disposition, no action should be enjoined or\nprohibited by law of which the injunction or prohibition interferes\nwith actions proceeding from that disposition, and every action\nshould be so enjoined of which the performance is found to produce\nconditions favourable to action proceeding from that disposition, and\nof which the legal injunction does not interfere with such action.\n\n17. Does this general rule give any real guidance in the difficulties\nwhich practically arise in regard to the province of law--as to\nwhat should be required by law, and what left to the inclination of\nindividuals? What cases are there or have there been of enactments\nwhich on this principle we can pronounce wrong? Have attempts ever\nbeen made by law to enforce acts as virtuous which lose their virtue\nwhen done under fear of legal penalties? It would be difficult, no\ndoubt, to find instances of attempts to enforce by law actions of\nwhich we should say that the value lies in the disposition from which\nthey are done, actions, e.g. of disinterested kindness, because the\nclear conception of virtue as depending not on outward results,\nbut on disposition, is but slowly arrived at, and has never been\nreflected in law. But without any strictly moral object at all, laws\nhave been made which check the development of the moral disposition.\nThis has been done _(a)_ by legal requirements of religious\nobservance and profession of belief, which have tended to vitiate the\nreligious source of morality; _(b)_ by prohibitions and restraints,\nunnecessary, or which have ceased to be necessary, for maintaining\nthe social conditions of the moral life, and which interfere with the\ngrowth of self-reliance, with the formation of a manly conscience and\nsense of moral dignity,--in short, with the moral autonomy which is\nthe condition of the highest goodness; _(c)_ by legal institutions\nwhich take away the occasion for the exercise of certain moral\nvirtues (e.g. the Poor-law which takes away the occasion for the\nexercise of parental forethought, filial reverence, and neighbourly\nkindness).\n\n18. Laws of this kind have often been objected to on the strength\nof a one-sided view of the function of laws; the view, viz., that\nits only business is to prevent interference with the liberty of\nthe individual. And this view has gained undue favour on account of\nthe real reforms to which it has led. The laws which it has helped\nto get rid of were really mischievous, but mischievous for further\nreasons than those conceived of by the supporters of this theory.\nHaving done its work, the theory now tends to become obstructive,\nbecause in fact advancing civilisation brings with it more and\nmore interference with the liberty of the individual to do as he\nlikes, and this theory affords a reason for resisting all positive\nreforms, all reforms which involve an action of the state in the way\nof promoting conditions favourable to moral life. It is one thing\nto say that the state in promoting these conditions must take care\nnot to defeat its true end by narrowing the region within which the\nspontaneity and disinterestedness of true morality can have play;\nanother thing to say that it has no moral end to serve at all, and\nthat it goes beyond its province when it seeks to do more than secure\nthe individual from violent interference by other individuals. The\ntrue ground of objection to 'paternal government' is not that it\nviolates the 'laissez faire' principle and conceives that its office\nis to make people good, to promote morality, but that it rests on a\nmisconception of morality. The real function of government being to\nmaintain conditions of life in which morality shall be possible, and\nmorality consisting in the disinterested performance of self-imposed\nduties, 'paternal government' does its best to make it impossible by\nnarrowing the room for the self-imposition of duties and for the play\nof disinterested motives.\n\n19. The question before us, then, is, In what ways and how far do\nthe main obligations enforced and rights maintained by law in all\ncivilised societies contribute to the moral end described; viz.\nto establish those conditions of life in which a true, i.e. a\ndisinterested or unselfish morality shall be possible? The answer\nto this question will be a theory of the 'jus naturae'; i.e. it\nwill explain how far positive law is what it should be, and what\nis the ground of the duty to obey it; in other words, of political\nobligation. There are two things from which such a theory must be\ndistinguished. (1) It is not an inquiry into the process by which\nactual law came to be what it is; nor (2) is it an inquiry how far\nactual law corresponds to and is derived from the exercise of certain\noriginal or natural rights. (1) It is not the former, because the\nprocess by which the law of any nation and the law in which civilised\nnations agree has come to be what it is, has not been determined\nby reference to that end to which we hold that law ought to be\ndirected and by reference to which we criticise it. That is to say,\nthe process has not been determined by any such conscious reference\non the part of the agents in the process. No doubt a desire for\nsocial good as distinct from private pleasure, for what is good on\nthe whole as distinct from what is good for the moment, has been a\nnecessary condition of it; but _(a)_, as an agent in the development\nof law, this has not reached the form of a conception of moral good\naccording to that definition of it by which the value of law is to be\nestimated; and _(b)_ in bringing law to its present state it has been\nindistinguishably blended with purely selfish passions and with the\nsimple struggle for existence.\n\n20. (2) A true theory of 'jus naturae,' a rationale of law or ideal\nof what it should be, is not to be had by inquiring how far actual\nlaw corresponds to, and is derived from, the exercise of certain\noriginal or natural rights, if that is taken to mean that we know,\nor can ascertain, what rights are natural on grounds distinct from\nthose on which we determine what laws are justifiable, and that then\nwe can proceed to ascertain what laws are justifiable by deduction\nfrom such rights. 'Natural rights,' so far as there are such things,\nare themselves relative to the moral end to which perfect law is\nrelative. A law is not good because it enforces 'natural rights,'\nbut because it contributes to the realisation of a certain end. We\nonly discover what rights are natural by considering what powers\nmust be secured to a man in order to the attainment of this end.\nThese powers a perfect law will secure to their full extent. Thus the\nconsideration of what rights are 'natural' (in the only legitimate\nsense) and the consideration what laws are justifiable form one\nand the same process, each presupposing a conception of the moral\nvocation of man.\n\n21. The doctrine here asserted, that all rights are relative to moral\nends or duties, must not be confused with the ordinary statement\nthat every right implies a duty, or that rights and duties are\ncorrelative. This of course is true in the sense that possession\nof a right by any person both implies an obligation on the part of\nsomeone else, and is conditional upon the recognition of certain\nobligations on the part of the person possessing it. But what is\nmeant is something different, viz. that the claim or right of the\nindividual to have certain powers secured to him by society, and\nthe counter-claim of society to exercise certain powers over the\nindividual, alike rest on the fact that these powers are necessary to\nthe fulfilment of man's vocation as a moral being, to an effectual\nself-devotion to the work of developing the perfect character in\nhimself and others.\n\n22. This, however, is not the ground on which the claim in question\nhas generally been asserted. Apart from the utilitarian theory, which\nfirst began to be applied politically by Hume, the ordinary way of\njustifying the civil rights of individuals (i.e. the powers secured\nto them by law as against each other), as well as the rights of the\nstate against individuals (i.e. the powers which, with the general\napproval of society, it exercises against them), has been to deduce\nthem from certain supposed prior rights, called natural rights. In\nthe exercise of these natural rights, it has been supposed, men with\na view to their general interest established political society.\nFrom that establishment is derived both the system of rights and\nobligations maintained by law as between man and man, and the right\nof the state to the submission of its subjects. If the question,\nthen, is raised, why I ought to respect the legal rights of my\nneighbours, to pay taxes, or have my children vaccinated, serve in\nthe army if the state requires it, and generally submit to the law,\nthe answer according to this theory will be that if I fail to do\nso, I shall directly or indirectly be violating the natural rights\nof other men; directly in those cases where the legal rights of my\nneighbours are also natural rights, as they very well may be (e.g.\nrights of liberty or personal safety); indirectly where this is not\nthe case, because, although the rights of the state itself are not\nnatural, and many rights exercised by individuals would not only\nnot be secured but would not exist at all but for legal enactment,\nyet the state itself results from a covenant which originally, in\nthe exercise of their natural rights, men made with each other,\nand to which all born under the state and sharing the advantages\nderived from it must be considered parties. There is a natural right,\ntherefore, on the part of each member of a state to have this compact\nobserved, with a corresponding obligation to observe it; and this\nnatural right of all is violated by any individual who refuses to\nobey the law of the state or to respect the rights, not in themselves\nnatural, which the state confers on individuals.\n\n23. This, on the whole, was the form in which the ground of political\nobligation, the justification of established rights, was presented\nthroughout the seventeenth century, and in the eighteenth till the\nrise of the 'utilitarian' theory of obligation. Special adaptations\nof it were made by Hobbes and others. In Hobbes, perhaps (of whom\nmore later), may be found an effort to fit an anticipation of the\nutilitarian theory of political obligation into the received theory\nwhich traced political obligation, by means of the supposition of\na primitive contract, to an origin in natural right. But in him as\nmuch as anyone the language and framework of the theory of compact\nis retained, even if an alien doctrine may be read between the\nlines. Of the utilitarian theory of political obligation more shall\nbe said later. It may be presented in a form in which it would\nscarcely be distinguishable from the doctrine just now stated, the\ndoctrine, viz., that the ground of political obligation, the reason\nwhy certain powers should be recognised as belonging to the state\nand certain other powers as secured by the state to individuals,\nlies in the fact that these powers are necessary to the fulfilment\nof man's vocation as a moral being, to an effectual self-devotion\nto the work of developing the perfect character in himself and\nothers. Utilitarianism proper, however, recognises no vocation of\nman but the attainment of pleasure and avoidance of pain. The only\nreason why civil rights should be respected--the only justification\nof them--according to it, would be that more pleasure is attained\nor pain avoided by the general respect for them; the ground of our\nconsciousness that we ought to respect them, in other words their\nultimate sanction, is the fear of what the consequences would be if\nwe did not. This theory and that which I deem true have one negative\npoint in common. They do not seek the ground of actual rights in a\nprior natural right, but in an end to which the maintenance of the\nrights contributes. They avoid the mistake of identifying the inquiry\ninto the ultimate justifiability of actual rights with the question\nwhether there is a prior right to the possession of them. The right\nto the possession of them, if properly so called, would not be a\nmere power, but a power recognised by a society as one which should\nexist. This recognition of a power, in some way or other, as that\nwhich should be, is always necessary to render it a right. Therefore\nwhen we had shown that the rights exercised in political society were\nderived from prior 'natural' rights, a question would still remain\nas to the ground of those natural rights. We should have to ask why\ncertain powers were recognised as powers which should be exercised,\nand thus became these natural rights.\n\n24. Thus, though it may be possible and useful to show how the more\nseemingly artificial rights are derived from rights more simple and\nelementary, how the rights established by law in a political society\nare derived from rights that may be called natural, not in the\nsense of being prior to society, but in the sense of being prior to\nthe existence of a society governed by written law or a recognised\nsovereign, still such derivation is no justification of them. It is\nno answer to the question why they should be respected; because this\nquestion remains to be asked in regard to the most primitive rights\nthemselves. Political or civil rights, then, are not to be explained\nby derivation from natural rights, but in regard to both political\nand natural rights, in any sense in which there can be truly said\nto be natural rights, the question has to be asked, how it is that\ncertain powers are recognised by men in their intercourse with each\nother as powers that should be exercised, or of which the possible\nexercise should be secured.\n\n25. I have tried to show in lectures on morals that the conception\nexpressed by the 'should be' is not identical with the conception of\na right possessed by some man or men, but one from which the latter\nconception is derived. It is, or implies on the part of whoever is\ncapable of it, the conception of an ideal, unattained condition of\nhimself, as an absolute end. Without this conception the recognition\nof a power as a right would be impossible. A power on the part of\nanyone is so recognised by others, as one which should be exercised,\nwhen these others regard it as in some way a means to that ideal\ngood of themselves which they alike conceive: and the possessor of\nthe power comes to regard it as a right through consciousness of\nits being thus recognised as contributory to a good in which he too\nis interested. No one therefore can have a right except (1) as a\nmember of a society, and (2) of a society in which some common good\nis recognised by the members of the society as their own ideal good,\nas that which should be for each of them. The capacity for being\ndetermined by a good so recognised is what constitutes personality\nin the ethical sense; and for this reason there is truth in saying\nthat only among persons, in the ethical sense, can there come to be\nrights; (which is quite compatible with the fact that the logical\ndisentanglement of the conception of rights precedes that of the\nconception of the legal person; and that the conception of the moral\nperson, in its abstract and logical form, is not arrived at till\nafter that of the legal person).\n\nConversely, everyone capable of being determined by the conception of\na common good as his own ideal good, as that which unconditionally\nshould be (of being in that sense an end to himself), in other\nwords, every moral person, is capable of rights; i.e. of bearing\nhis part in a society in which the free exercise of his powers is\nsecured to each member through the recognition by each of the others\nas entitled to the same freedom with himself. To say that he is\ncapable of rights, is to say that he ought to have them, in that\nsense of 'ought' in which it expresses the relation of man to an\nend conceived as absolutely good, to an end which, whether desired\nor no, is conceived as intrinsically desirable. The moral capacity\nimplies a consciousness on the part of the subject of the capacity\nthat its realisation is an end desirable in itself, and rights are\nthe condition of realising it. Only through the possession of rights\ncan the power of the individual freely to make a common good his own\nhave reality given to it. Rights are what may be called the negative\nrealisation of this power. That is, they realise it in the sense of\nproviding for its free exercise, of securing the treatment of one\nman by another as equally free with himself, but they do not realise\nit positively, because their possession does not imply that in any\nactive way the individual makes a common good his own. The possession\nof them, however, is the condition of this positive realisation of\nthe moral capacity, and they ought to be possessed because this end\n(in the sense explained) ought to be attained.\n\n26. Hence on the part of every person ('person' in the moral sense\nexplained) the claim, more or less articulate and reflected on, to\nrights on his own part is co-ordinate with his recognition of rights\non the part of others. The capacity to conceive a common good as\none's own, and to regulate the exercise of one's powers by reference\nto a good which others recognise, carries with it the consciousness\nthat powers should be so exercised; which means that there should be\nrights, that powers should be regulated by mutual recognition. There\nought to be rights, because the moral personality,--the capacity on\nthe part of an individual for making a common good his own,--ought\nto be developed; and it is developed through rights; i.e. through\nthe recognition by members of a society of powers in each other\ncontributory to a common good, and the regulation of those powers by\nthat recognition.\n\n27. In saying that only among 'persons' can there come to be rights,\nand that every 'person' should have rights, I have been careful to\nexplain that I use 'person' in the moral, not merely in the legal,\nsense. In dealing, then, with such phrases as 'jura personarum'\nand 'personal rights,' we must keep in view the difference between\nthe legal and ethical sense of the proposition that all rights are\npersonal, or subsist as between persons. In the legal sense, so far\nas it is true,--and it is so only if 'person' is used in the sense\nof Roman law,--it is an identical proposition. A person means a\nsubject of rights and nothing more. Legal personality is derived\nfrom the possession of right, not _vice versa_. Like other identical\npropositions, its use is to bring out and emphasise in the predicate\nwhat is included in the understood connotation of the subject; to\nremind us that when we speak of rights we imply the existence of\nparties, in English phraseology, capable of suing and being sued.\nIn the ethical sense, it means that rights are derived from the\npossession of personality as = a rational will (i.e. the capacity\nwhich man possesses of being determined to action by the conception\nof such a perfection of his being as involves the perfection of a\nsociety in which he lives), in the sense _(a)_ that only among beings\npossessed of rational will can there come to be rights, _(b)_ that\nthey fulfil their idea, or are justifiable, or such rights as should\nbe rights, only as contributing to the realisation of a rational\nwill. It is important to bear this distinction in mind in order that\nthe proposition in its ethical sense, which can stand on its own\nmerits, may not derive apparent confirmation from a juristic truism.\n\n28. The moral idea of personality is constantly tending to affect\nthe legal conception of the relation between rights and persons.\nThus the 'jura personarum,' which properly = either rights arising\nout of 'status,' or rights which not only (like all rights) reside\nin someone having a legal status and are available against others\nhaving a legal status, but are exercised over, or in respect of,\nsomeone possessed of such status (e.g. a wife or a servant), come\nto be understood as rights derived from the human personality or\nbelonging to man as man. It is with some such meaning that English\nwriters on law speak of rights to life and liberty as personal\nrights. The expression might seem pleonastic, since no right can\nexist except as belonging to a person in the legal sense. They do not\nuse the phrase either pleonastically or in the sense of the Roman\nlawyers' 'jura personarum' above, but in the sense that these rights\nare immediately derived from, or necessarily attach to, the human\npersonality in whatever that personality is supposed to consist.\nThere is no doubt, however, that historically the conception of the\nmoral person, in any abstract form, is not arrived at till after\nthat of the legal person has been thus disentangled and formulated;\nand further that the abstract conception of the legal person, as the\nsustainer of rights, is not arrived at till long after rights have\nbeen actually recognised and established. But the disentanglement\nor abstract formulation of the conception of moral personality is\nquite a different thing from the action of the consciousness in which\npersonality consists.\n\n29. The capacity, then, on the part of the individual of conceiving a\ngood as the same for himself and others, and of being determined to\naction by that conception, is the foundation of rights; and rights\nare the condition of that capacity being realised. No right is\njustifiable or should be a right except on the ground that directly\nor indirectly it serves this purpose. Conversely every power should\nbe a right, i.e. society should secure to the individual every power,\nthat is necessary for realising this capacity. Claims to such powers\nas are directly necessary to a man's acting as a moral person at\nall--acting under the conception of a good as the same for self and\nothers--may be called in a special sense personal rights (though they\nwill include more than Stephen includes under that designation); they\nmay also be called, if we avoid misconceptions connected with these\nterms, 'innate' or 'natural' rights. They are thus distinguished from\nothers which are (1) only indirectly necessary to the end stated, or\n(2) are so only under special conditions of society; as well as from\nclaims which rest merely on legal enactment and might cease to be\nenforced without any violation of the 'jus naturae.'\n\n30. The objection to calling them 'innate' or 'natural,' when\nonce it is admitted on the one side that rights are not arbitrary\ncreations of law or custom but that there are certain powers which\nought to be secured as rights, on the other hand that there are no\nrights antecedent to society, none that men brought with them into a\nsociety which they contracted to form, is mainly one of words. They\nare 'innate' or 'natural' in the same sense in which according to\nAristotle the state is natural: not in the sense that they actually\nexist when a man is born and that they have actually existed as long\nas the human race, but that they arise out of, and are necessary for\nthe fulfilment of, a moral capacity without which a man would not be\na man. There cannot be innate rights in any other sense than that in\nwhich there are innate duties, of which, however, much less has been\nheard. Because a group of beings are capable each of conceiving an\nabsolute good of himself and of conceiving it to be good for himself\nas identical with, and because identical with, the good of the rest\nof the group, there arises for each a consciousness that the common\ngood should be the object of action, i.e. a duty, and a claim in each\nto a power of action that shall be at once secured and regulated by\nthe consciousness of a common good on the part of the rest, i.e. a\nright. There is no ground for saying that the right arises out of a\nprimary human capacity, and is thus 'innate,' which does not apply\nequally to the duty.\n\n31. The dissociation of innate rights from innate duties has gone\nalong with the delusion that such rights existed apart from society.\nMen were supposed to have existed in a state of nature, which was\nnot a state of society, but in which certain rights attached to\nthem as individuals, and then to have formed societies by contract\nor covenant. Society having been formed, certain other rights arose\nthrough positive enactment; but none of these, it was held, could\ninterfere with the natural rights which belonged to men antecedently\nto the social contract or survived it.\n\nSuch a theory can only be stated by an application to an imaginary\nstate of things, prior to the formation of societies as regulated\nby custom or law, of terms that have no meaning except in relation\nto such societies. 'Natural right,' as = right in a state of nature\nwhich is not a state of society, is a contradiction. There can be\nno right without a consciousness of common interest on the part of\nmembers of a society. Without this there might be certain powers on\nthe part of individuals, but no recognition of these powers by others\nas powers of which they allow the exercise, nor any claim to such\nrecognition; and without this recognition or claim to recognition\nthere can be no right.\n\n    B. _SPINOZA._\n\n32. Spinoza is aware of this. In the _Tractatus Politici_, IT. 4,\nhe says, 'Per _jus_ itaque _naturae_ intelligo ... ipsam naturae\npotentiam.' [1] ... 'Quicquid unusquisque homo ex legibus suae\nnaturae agit, id summo naturae jure agit, tantumque in naturam\nhabet juris, quantum potentia valet.' If only, seeing that the\n'jus naturae' was mere 'potentia,' he had denied that it was 'jus'\nat all, he would have been on the right track. Instead of that,\nhowever, he treats it as properly 'jus,' and consistently with this\nregards all 'jus' as mere 'potentia': nor is any 'jus humanum'\naccording to him guided by or the product of reason. It arises, in\nmodern phrase, out of the 'struggle for existence.' As Spinoza says,\n'homines magis caeca cupiditate quam ratione ducuntur; ac proinde\nhominum naturalis potentia sive jus non ratione, sed quocumque\nappetitu quo ad agendum determinantur, quoque se conservare conantur,\ndefiniri debet' (II. 5). The 'jus civile' is simply the result of\nthe conflict of natural powers, which = natural rights, which arises\nfrom the effort of every man to gratify his passions and 'suum esse\nconservare.' Man is simply a 'pars naturae,' the most crafty of the\nanimals. 'Quatenus homines ira, invidia aut aliquo odii affectu\nconflictantur, eatenus diverse trahuntur et invicem contrarii sunt,\net propterea eo plus timendi, quo plus possunt, magisque callidi\net astuti sunt, quam reliqua animalia; et quia homines ut plurimum\nhis affectibus natura sunt obnoxii, sunt ergo homines ex natura\nhostes' (II. 14). Universal hostility means universal fear, and fear\nmeans weakness. It follows that in the state of nature there is\nnothing fit to be called 'potentia' or consequently 'jus'; 'atque\nadeo concludimus jus naturae vix posse concipi nisi ubi homines\njura habent communia, qui simul terras, quas habitare et colere\npossunt, sibi vindicare, seseque munire, vimque omnem repellere et\nex communi omnium sententia vivere possunt. Nam (per art. 13 hujus\ncap.) quo plures in unum sic conveniunt, eo omnes simul plus juris\nhabent' (15). The collective body, i.e., has more 'jus in naturam,'\ni.e. 'potentiam,' than any individual could have singly (13). In the\nadvantage of this increased 'jus in naturam' the individual shares.\nOn the other hand (16), 'Ubi homines jura communia habent omnesque\nuna veluti mente ducuntur, certum est (per art. 13 hujus cap.)\neorum unumquemque tanto minus habere juris, quanto reliqui simul\nipso potentiores sunt, hoc est, ilium revera jus nullum in naturam\nhabere praeter id, quod ipsi commune concedit jus. Ceterum quicquid\nex communi consensu ipsi imperatur, teneri exsequi vel (per art. 4\nhujus cap.) jure ad id cogi.' This 'jus' by which the individual's\nactions are now to be regulated, is still simply 'potentia.' 'Hoc\njus, quod multitudinis potentia definitur, imperium appellari solet'\n(17). It is not to be considered anything different from the 'jus\nnaturae.' It is simply the 'naturalis potentia' of a certain number\nof men combined; 'multitudinis quae una veluti mente ducitur' (III.\n2). Thus in the 'status civilis' the 'jus naturae' of the individual\nin one sense disappears, in another does not. It disappears in the\nsense that the individual member of the state has no mind to act or\npower to act against the mind of the state. Anyone who had such mind\nor power would not be a member of the state. He would be an enemy\nagainst whose 'potentia' the state must measure its own. On the other\nhand, 'in statu civili,' just as much as 'in statu naturali,' 'homo\nex legibus suae naturae agit suaeque utilitati consulit' (3). He\nexercises his 'naturalis potentia' for some natural end of satisfying\nhis wants and preserving his life as he did or would do outside the\n'status civilis.' Only in the 'status civilis' these motives on the\npart of individuals so far coincide as to form the 'una veluti mens'\nwhich directs the 'multitudinis potentia.' According to this view,\nany member of a state will have just so much 'jus,' i.e. 'potentia,'\nagainst other members as the state allows him. If he can exercise\nany 'jus' or 'potentia' against another 'ex suo ingenio,' he is so\nfar not a member of the state and the state is so far imperfect. If\nhe could exercise any 'jus' or 'potentia' against the state itself,\nthere would be no state, or, which is the same, the state would not\nbe 'sui juris.'\n\n[1] [Many of the Latin passages quoted in this chapter are translated\nin Bosanquet's Supplement. Tr]\n\n33. Is there then no limit to the 'jus' which the state may exercise?\nWith Spinoza this is equivalent to the question, is there no limit to\nthe 'potentia' which it can exercise? As to this, he suggests three\nconsiderations.\n\n(1). Its power is weakened by any action against right reason,\nbecause this must weaken the 'animorum unio' on which it is founded.\n'Civitatis jus potentia multitudinis, quae una veluti mente ducitur,\ndeterminatur. At haec animorum unio concipi nulla ratione posset,\nnisi civitas id ipsum maxime intendat, quod sana ratio omnibus\nhominibus utile esse docet' (III. 7).\n\n(2). The 'right' or 'power' of the state depends on its power of\naffecting the hopes and fears of individual citizens.... 'Subditi\neatenus non sui, sed civitatis juris sint, quatenus ejus potentiam\nseu minas metuunt, vel quatenus statum civilem amant (per art. 10\npraeced. cap.). Ex quo sequitur, quod ea omnia, ad quse agenda nemo\npraemiis aut minis induci potest, ad jura civitatis non pertineant'\n(III. 8). Whatever cannot be achieved by rewards and threats, is\nbeyond the power and therefore beyond the 'right' of the state.\nExamples are given in the same section.\n\n(3). 'Ad civitatis jus ea minus pertinere, quae plurimi indignantur'\n(III. 9). Severities of a certain kind lead to conspiracies against\nthe state, and thus weaken it. 'Sicut unusquisque civis sive homo\nin statu naturali, sic civitas eo minus sui juris est, quo majorem\ntimendi causam habet.'\n\nJust so far then as there are certain things which the state cannot\ndo, or by doing which it lessens its power, so far there are things\nwhich it has no 'right' to do.\n\n34. Spinoza proceeds to consider the relation of states or sovereign\npowers to each other. Here the principle is simple. They are to each\nother as individuals in the state of nature, except that they will\nnot be subject to the same weaknesses. 'Nam quandoquidem (per art.\n2 hujus cap.) jus summae potestatis nihil est praeter ipsum naturae\njus, sequitur duo imperia ad invicem sese habere, ut duo homines in\nstatu naturali, excepto hoc, quod civitas sibi cavere potest, ne ab\nalia opprimatur, quod homo in statu naturali non potest, nimirum\nqui quotidie somno, saepe morbo aut animi aegritudine, et tandem\nsenectute gravatur, et prater haec aliis incommodis est obnoxius,\na quibus civitas securam se reddere potest' (III. 11). In other\nwords, '... duae civitates natura hostes sunt. Homines enim in\nstatu naturali hostes sunt. Qui igitur jus naturae extra civitatem\nretinent, hostes manent' (III. 13). The 'jura belli' are simply the\npowers of any one state to attack or defend itself against another.\nThe 'jura pacis,' on the other hand, do not appertain to any single\nstate, but arise out of the agreement of two at least. They last as\nlong as the agreement, the 'foedus,' lasts; and this lasts as long as\nthe fear or hope, which led to its being made, continues to be shared\nby the states which made it. As soon as this ceases to be the case,\nthe agreement is necessarily at an end, 'nec dici potest, quod dolo\nvel perfidia agat, propterea quod fidem solvit, simulatque metus vel\nspei causa sublata est, quia haec conditio unicuique contrahentium\naequalis fuit, ut scilicet quae prima extra metum esse potest, sui\njuris esset, eoque ex sui animi sententia uteretur, et praeterea quia\nnemo in futurum contrahit nisi positis prsecedentibus circumstantiis'\n(III. 14).\n\n35. It would seem to follow from the above that a state can do no\nwrong, in the sense that there are no rights that it can violate.\nThe same principle is applicable to it as to the individual. 'In\nstatu naturali non dari peccatum, vel si quis peccat, is sibi, non\nalteri peccat: ... nihil absolute naturae jure prohibetur, nisi quod\nnemo potest' (II. 18). A state is to any other state, and to its\nsubjects, as one individual to another 'in statu naturali.' A wrong,\na 'peccatum,' consists in a violation by individuals of the 'commune\ndecretum.' There can be no 'peccare' on the part of the 'commune\ndecretum' itself. But 'non id omne, quod jure fieri dicimus, optime\nfieri affirmamus. Aliud namque est agrum jure colere, aliud agrum\noptime colere; aliud, inquam, est sese jure defendere, conservare,\njudicium ferre, &c, aliud sese optime defendere, conservare, atque\noptimum judicium ferre; et consequenter aliud est jure imperare\net reipublicae curam habere, aliud optime imperare et rempublicam\noptime gubernare. Postquam itaque de jure cujuscumque civitatis in\ngenere egimus, tempus est, ut de optimo cujuscumque imperii statu\nagamus' (V. 1). Hence a further consideration 'de optimo cujusque\nimperii statu.' This is guided by reference to the 'finis status\ncivilis,' which is 'pax vitaeque securitas.' Accordingly that is the\nbest government under which men live in harmony, and of which the\nrights are kept inviolate. Where this is not the case, the fault lies\nwith the government, not with any 'subditorum malitia.' 'Homines\nenim civiles non nascuntur, sed fiunt. Hominum praeterea naturales\naffectus ubique iidem sunt' (V. 2).\n\nThe end is not fully attained where men are merely kept in order\nby fear. Such a state of things is not peace but merely absence of\nwar. 'Pax enim non belli privatio, sed virtus est, quae ex animi\nfortitudine oritur;[1] est namque obsequium constans voluntas id\nexsequendi, quod ex communi civitatis decreto fieri debet' (V. 4).\n\nThe 'peace,' then, which it is the end of the state to obtain,\nconsists in rational virtue; in a common mind, governed by desire on\nthe part of each individual for perfection of being in himself and\nothers. The harmony of life, too, which is another way of expressing\nits object, is to be understood in an equally high sense. The life\nspoken of is one 'quae maxime ratione, vera mentis virtute et vita,\ndefinitur.'\n\nThe 'imperium' which is to contribute to this end must clearly be one\n'quod multitudo libera instituit, non autem id, quod in multitudinem\njure belli acquiritur.' Between the two forms of 'imperium' there\nmay be no essential difference in respect of the 'jus' which belongs\nto each, but there is the greatest in respect of the ends which they\nserve as well as in the means by which they have to be maintained (V.\n6).\n\n[1] For the definition of 'fortitudo,' see _Ethics_, III. 59,\nSchol. 'Omnes actiones quae sequuntur ex affectibus qui ad mentem\nreferuntur, quatenus intelligit, ad fortitudinem refero, quam in\nanimositatem et generositatem distinguo. Nam per animositatem\nintelligo cupiditatem, qua unusquisque conatur suum esse ex solo\nrationis dictamine conservare. Per generositatem ... cupiditatem\nqua unusquisque ex solo rationis dictamine conatur reliquos homines\njuvare et sibi amicitia jungere.'\n\n36. This conclusion of Spinoza's doctrine of the state does not seem\nreally consistent with the beginning. At the outset, no motives are\nrecognised in men but such as render them 'natura hostes.' From the\noperation of these motives the state is supposed to result. Each\nindividual finds that the war of all against all is weakness for all.\nConsequently the desire on the part of each to strengthen himself,\nwhich is a form of the universal effort 'suum esse conservare,'\nleads to combination, it being discovered that 'homini nihil homine\nutilius' (_Eth_. IV. 18. Schol.). But we are expressly told that the\ncivil state does not bring with it other motives than those operative\n'in statu naturali.' 'Homo namque tam in statu naturali quam civili\nex legibus suae naturae agit, suaeque utilitati consulit.' But then\nit appears that there supervenes or may supervene on such motives\n'constans voluntas id exsequendi quod ex communi civitatis decreto\nfieri debet,' and that not of a kind which seeks to carry out the\n'commune decretum' as a means of escaping pain or obtaining pleasure,\nfor it is said to arise from the 'animi fortitudo' which rests on\nreason ('ad mentem refertur quatenus intelligit') and includes\n'generositas' defined as above. It is also said that the true object\nof 'imperium' is 'vitam concorditer transigere' or 'vitam colere' in\na sense of 'vita' in which it 'maxime ratione ... definitur.' And\nas the 'imperium' established for this end is one which 'multitudo\nlibera instituit,' it seems [1] to be implied that there is a desire\nfor such an end on the part of the people. It is not explained\nhow such desires should arise out of the conflict of 'naturales\npotentiae' or out of the impulses which render men 'natura hostes.'\nOn the other hand, if the elements of them already exist in the\nimpulses which lead to the formation of the 'status civilis,' the\nreasons for saying that men are 'natura hostes' disappear, and we get\na different view of 'jus,' whether 'naturale' or 'civile,' from that\nwhich identifies it simply with 'potentia.' Some power of conceiving\nand being interested in a good _as common_, some identification of\nthe 'esse' of others with the 'suum esse' which every man, as Spinoza\nsays, seeks to preserve and promote, must be supposed in those who\nform the most primitive social combinations, if these are to issue\nin a state directed to such ends and maintained by such a 'constans\nvoluntas' as Spinoza describes. And it is the interest of men in a\ncommon good, the desire on the part of each which he thinks of others\nas sharing, for a good which he conceives to be equally good for\nthem, that transforms mere 'potentia' into what may fitly be called\n'jus,' i.e. a power claiming recognition as exercised or capable of\nbeing exercised for the common good.\n\n[1] Certainly this is so, if we apply to the 'libera multitudo' the\ndefinition of freedom applied to the 'liber homo.' 'Hominem eatenus\n_liberum_ omnino voco, quatenus ratione ducitur, quia eatenus ex\ncausis, quae per solam eius naturam possunt adaequate intelligi,\nad agendum determinatur, tametsi ex iis necessario ad agendum\ndeterminetur. Nam libertas agendi necessitatem non tollit, sed\nponit'(II. 11).\n\n37. If this qualification of 'potentia' which alone renders it 'jus'\nhad been apprehended by Spinoza, he would have been entitled to speak\nof a 'jus naturale' as preceding the 'jus civile,' i.e. of claims to\nthe recognition of powers and the actual customary recognition of\nsuch, as exercised for a common good, preceding the establishment of\nany regular institutions or general laws for securing their exercise.\nAs it is, the term 'jus naturale' is with him really unmeaning. If it\nmeans no more than 'potentia,' why call it 'jus'? 'Jus' might have\na meaning distinct from that of 'potentia' in the sense of a power\nwhich a certain 'imperium' enables one man to exercise as against\nanother. This is what Spinoza understands by 'jus civile.' But there\nis no need to qualify it as 'civile,' unless 'jus' may be employed\nwith some other qualification and with a distinctive meaning. But\nthe 'jus naturale,' as he understands it, has no meaning other than\nthat of 'potentia,' and his theory as it stands would have been more\nclearly expressed if instead of 'jus naturale' and 'jus civile' he\nhad spoken of 'potentia' and 'jus,' explaining that the latter was a\npower on the part of one man against others, maintained by means of\nan 'imperium' which itself results from a combination of 'powers.'\nHe himself in one passage shows a consciousness of the impropriety\nof speaking of 'jus' except with reference to a community; 'jus\nnaturae, quod humani generis proprium est, vix posse concipi, nisi\nubi homines jura habent communia, qui simul terras, quas habitare\net colere possunt, sibi vindicare, seseque munire, vimque omnem\nrepellere et ex communi omnium sententia vivere possunt' (II. 15). He\ntakes no notice, however, of any forms of community more primitive\nthan that of the state. The division into the 'status naturalis'\nand the 'status civilis' he seems to treat as exhaustive, and the\n'status naturalis' he regards, after the manner of his time, as one\nof pure individualism, of simple detachment of man from man, or of\ndetachment only modified by conflict. From such a 'status naturalis,'\nlacking both the natural and the rational principles of social\ndevelopment (the natural principle, i.e. the interest in others\narising primarily from family ties, and the rational principle, i.e.\nthe power of conceiving a good consisting in the more perfect being\nof the individual and of those in whom he is interested), no process\ncould be traced to the 'status civilis.' The two 'status' stand over\nagainst each other with an impassable gulf between. 'Homines civiles\nnon nascuntur, sed fiunt.' They are so made, he seems to hold, by\nthe action of the 'imperium' upon them. But how is the 'imperium'\nto be made? Men must first be, if not 'civiles,' yet something very\ndifferent from what they are in the 'status naturalis,' between which\nand the 'status civilis' Spinoza recognises no middle term, before\nany 'imperium' which could render them 'civiles' could be possible.\n\n38. The cardinal error of Spinoza's 'Politik' is the admission of the\npossibility of a right in the individual apart from life in society,\napart from the recognition by members of a society of a correlative\nclaim upon and duty to each other, as all interested in one and the\nsame good. The error was the error of his time, but with Spinoza it\nwas confirmed by his rejection of final causes. The true conception\nof 'right' depends on the conception of the individual as being\nwhat be really is in virtue of a function which he has to fulfil\nrelatively to a certain end, that end being the common well-being\nof a society. A 'right' is an ideal attribute ('ideal' in the sense\nof not being sensibly verifiable, not reducible to any perceivable\nfact or facts) which the individual possesses so far as this function\nis in some measure freely fulfilled by him--i.e. fulfilled with\nreference to or for the sake of the end--and so far as the ability\nto fulfil it is secured to him through its being recognised by the\nsociety as properly belonging to him. The essence of right lies in\nits being not simply a power producing sensible effects, but a power\nrelative to an insensible function and belonging to individuals only\nin so far as each recognises that function in himself and others. It\nis not in so far as I _can_ do this or that, that I have a right to\ndo this or that, but so far as I recognise myself and am recognised\nby others as able to do this or that for the sake of a common good,\nor so far as in the consciousness of myself and others I have a\nfunction relative to this end. Spinoza, however, objects to regard\nanything as determined by relation to a final cause. He was not\ndisposed therefore to regard individuals as being what they are in\nvirtue of functions relative to the life of society, still less as\nbeing what they are in virtue of the recognition by each of such\nfunctions in himself and others. He looked upon man, like everything\nelse in nature, as determined by material and efficient causes, and\nas himself a material and efficient cause. But as such he has no\n'rights' or 'duties,' but only 'powers.'\n\n39. It was because Plato and Aristotle conceived the life of the\n\u03c0\u03cc\u03bb\u03b9\u03c2 [1] so clearly as the \u03c4\u03ad\u03bb\u03bf\u03c2 of the individual, relation to\nwhich makes him what he is--the relation in the case of the \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2\nproper being a conscious or recognised relation--that they laid the\nfoundation for all true theory of 'rights.' It is true that they have\nnot even a word for 'rights.' The claims which in modern times have\nbeen advanced on behalf of the individual against the state under\nthe designation 'natural rights' are most alien from their way of\nthinking. But in saying that the \u03c0\u03cc\u03bb\u03b9\u03c2 was a 'natural' institution\nand that man was \u03c6\u03cd\u03c3\u03b5\u03b9 \u03c0\u03bf\u03bb\u03b9\u03c4\u03b9\u03ba\u03cc\u03c2, Aristotle, according to the sense\nwhich he attached to \u03c0\u03cc\u03bb\u03b9\u03c2, was asserting the doctrine of 'natural\nrights' in the only sense in which it is true. He regards the state\n(\u03c0\u03cc\u03bb\u03b9\u03c2) as a society of which the life is maintained by what its\nmembers do for the sake of maintaining it, by functions consciously\nfulfilled with reference to that end, and which in that sense imposes\nduties; and at the same time as a society from which its members\nderive the ability, through education and protection, to fulfil their\nseveral functions, and which in that sense confers rights. It is thus\nthat the \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2 \u03bc\u03b5\u03c4\u03ad\u03c7\u03b5\u03b9 \u03c4\u03bf\u1fe6 \u1f04\u03c1\u03c7\u03b5\u03b9\u03bd \u03ba\u03b1\u1f76 \u03c4\u03bf\u1fe6 \u1f04\u03c1\u03c7\u03b5\u03c3\u03b8\u03b1\u03b9. Man, being\n\u03c6\u03cd\u03c3\u03b5\u03b9 \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2,--being already in respect of capacities and tendencies\na member of such a society, existing only in \u03ba\u03bf\u03b9\u03bd\u03c9\u03bd\u03af\u03b1\u03b9 which contain\nits elements,--has 'naturally' the correlative duties and rights\nwhich the state imposes and confers. Practically it is only the Greek\nman that Aristotle regards as \u03c6\u03cd\u03c3\u03b5\u03b9 \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2, but the Greek conception\nof citizenship once established was applicable to all men capable of\na common interest. This way of conceiving the case, however, depends\non the 'teleological' view of man and the forms of society in which\nhe is found to live, i.e. on the view of men as being what they are\nin virtue of non-sensible functions, and of certain forms of life\ndetermined by relation to more perfect forms which they have the\ncapacity or tendency to become.\n\n[1] [Greek \u03c0\u03cc\u03bb\u03b9\u03c2 (polis) = city, \u03c4\u03ad\u03bb\u03bf\u03c2 (telos) = end or purpose,\n\u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2 (polites) = citizen, \u03c6\u03cd\u03c3\u03b5\u03b9 \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2 or \u03c6\u03cd\u03c3\u03b5\u03b9 \u03c0\u03bf\u03bb\u03b9\u03c4\u03b9\u03ba\u03cc\u03c2 (physei\npolites or politikos) = social or a citizen by nature, \u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2\n\u03bc\u03b5\u03c4\u03ad\u03c7\u03b5\u03b9 \u03c4\u03bf\u1fe6 \u1f04\u03c1\u03c7\u03b5\u03b9\u03bd \u03ba\u03b1\u1f76 \u03c4\u03bf\u1fe6 \u1f04\u03c1\u03c7\u03b5\u03c3\u03b8\u03b1\u03b9 (polites metechei tou archein kai\ntou archesthai) = a citizen by turns rules and is ruled, \u03ba\u03bf\u03b9\u03bd\u03c9\u03bd\u03af\u03b1\u03b9\n(koinoniai) = associations. Tr]\n\n40. Spinoza, like Bacon, found the assumption of ends which things\nwere meant to fulfil in the way of accurate inquiry into what things\nare (materially) and do. He held Plato and Aristotle cheap as\ncompared with Democritus and Epicurus (_Epist_. LX. 13). Accordingly\nhe considers the individual apart from his vocation as a member of\nsociety, the state apart from its office as enabling the individual\nto fulfil that vocation. Each, so considered, is merely a vehicle of\nso much power (natural force). On the other hand, he recognises a\ndifference between a higher and lower, a better and worse, state of\ncivil society, and a possibility of seeking the better state because\nit is understood to be better. And this is to admit the possibility\nof the course of human affairs being affected by the conception of\na final cause. It is characteristic of Spinoza that while he never\ndeparts from the principle 'homo naturae pars,' he ascribes to him\nthe faculty of understanding the order of nature, and of conforming\nto it or obeying it in a new way on account of that understanding.\nIn other words, he recognised the distinction called by Kant the\ndistinction between determination according to law and determination\naccording to the consciousness of law; though in his desire to assert\nthe necessity of each kind of determination he tends to disguise the\ndistinction and to ignore the fact that, if rational determination\n(or the determination by a conception of a law) is a part of nature,\nit is so in quite a different sense from determination merely\naccording to laws of nature. As he puts it, the clear understanding\nthat we are parts of nature, and of our position in the universe\nof things, will yield a new character. We shall only then desire\nwhat is ordained for us and shall find rest in the truth, in the\nknowledge of what is necessary. This he regards as the highest state\nof the individual, and the desire to attain it he evidently considers\nthe supreme motive by which the individual should be governed. The\nanalogue in political life to this highest state of the individual\nis the direction of the 'imperium' by a 'libera multitudo' to the\nattainment of 'pax vitaeque securitas' in the high sense which he\nattaches to those words in _Tract. Pol_. cap. V. [1]\n\n[1] Cp. _Eth_. IV. _Appendix_, xxxii. 'Ea quae nobis eveniunt contra\nid, quod nostrae utilitatis ratio postulat, aequo animo feremus,\nsi conscii simus nos functos nostro officio fuisse, et potentiam,\nquam habemus, non potuisse se eo usque extendere, ut eadem vitare\npossemus, nosque partem totius naturae esse, cujus ordinem sequimur.\nQuod si clare et distincte intelligamus, pars illa nostri, quae\nintelligentia definitur, hoc est, pars melior nostri, in eo plane\nacquiescet et in ea acquiescentia perseverare conabitur. Nam quatenus\nintelligimus, nihil appetere nisi id, quod necessarium est, nec\nabsolute nisi in veris acquiescere possumus; adeoque quatenus haec\nrecte intelligimus, eatenus conatus melioris partis nostri cum ordine\ntotius naturae convenit.' _Eth_. IV. Preface ... 'Per _bonum_ ...\nintelligam id, quod certo scimus medium esse, ut ad exemplar humanae\nnaturae, quod nobis proponimus, magis magisque accedamus.... Deinde\nhomines _perfectiores_ aut _imperfectiores_ dicemus, quatenus ad hoc\nidem exemplar magis aut minus accedunt.'\n\n41. The conclusion, then, is that Spinoza did really, though not\nexplicitly, believe in a final cause determining human life. That\nis to say, he held that the conception of an end consisting in the\ngreater perfection of life on the part of the individual and the\ncommunity might, and to some extent did, determine the life of the\nindividual and the community. He would have said no doubt that\nthis end, like every good, existed only in our consciousness; that\nit was 'nihil positivum in rebus in se consideratis' (_Ethics_,\nIV. Preface); but an existence of the end in human consciousness,\ndetermining human action, is a sufficiently real existence, without\nbeing 'positivum in rebus.' But he made the mistake of ignoring the\nmore confused and mixed forms in which the conception of this end\noperates; of recognising it only in the forms of the philosophic\n'amor Dei,' or in the wisdom of the exceptional citizen, whom alone\nhe would admit 'ratione duci.' And in particular he failed to notice\nthat it is the consciousness of such an end to which his powers may\nbe directed, that constitutes the individual's claim to exercise\nthem as rights, just as it is the recognition of them by a society\nas capable of such direction which renders them actually rights; in\nshort that, just as according to him nothing is good or evil but\nthinking makes it so, so it is only thinking that makes a might a\nright,--a certain conception of the might as relative to a social\ngood on the part at once of the person or persons exercising it, and\nof a society which it affects.\n\n    C. _HOBBES_.\n\n42. All the more fruitful elements in Spinoza's political doctrine\nare lacking in that of Hobbes, but the principle of the two theories\nis very much the same. Each begins with the supposition of an\nexistence of human individuals, unaffected by society, and each\nstruggling for existence against the rest, so that men are 'natura\nhostes.' Each conceives 'jus naturale' as = 'potentia naturalis.'\nBut Spinoza carries out this conception much more consistently. He\ndoes not consider that the natural right, which is might, ceases to\nexist or becomes anything else when a multitude combine their natural\nrights or mights in an 'imperium.' If the ostensible 'imperium' comes\ninto collision with the powers of individuals, single or combined,\namong those who have hitherto been subject to it, and proves the\nweaker, it _ipso facto_ ceases to be an 'imperium.' Not having\nsuperior power, it no longer has superior right to the 'subditi.'\nIt is on this principle, as we have seen, that he deals with the\nquestion of limitations to the right of a sovereign. Its rights are\nlimited because its powers are so. Exercised in certain ways and\ndirections they defeat themselves. Thus as he puts it in _Epist_.\nL. (where he points out his difference from Hobbes), 'Supremo\nmagistratui in qualibet urbe non plus in subditos juris, quam juxta\nmensuram potestatis, qua subditum superat, competere statuo.' Hobbes,\non the other hand, supposes his sovereign power to have an absolute\nright to the submission of all its subjects, singly or collectively,\nirrespectively of the question of its actual power against them. This\nright he considers it to derive from a covenant by which individuals,\nweary of the state of war, have agreed to devolve their 'personae,'\nin the language of Roman law, upon some individual or collection\nof individuals, which is henceforward to represent them, and to be\nconsidered as acting with, their combined powers. This covenant being\nin the nature of the case irrevocable, the sovereign derives from it\nan indefeasible right to direct the actions of all members of the\nsociety over which it is sovereign.\n\n43. The doctrine may be found in _Leviathan_, Part II., chapter 17.\nIn order 'to erect such a common power as may be able to defend them\nfrom the invasion of foreigners and the injuries of one another,'\nmen 'confer all their power and strength upon one man or upon one\nassembly of men,' ... i.e. 'appoint one man or assembly of men to\nbear their person.... This is more than consent and concord; it is a\nreal unity of them all in one and the same person, made by covenant\nof every man with every man, in such a manner as if every man should\nsay to every man, 'I authorise, and give up my right of governing\nmyself to this man or this assembly of men, on condition that thou\ngive up thy right to him and authorise all his actions in like\nmanner.' This done, the multitude so united in one person is called\na commonwealth, in Latin _civitas_ ... which (to define it) is one\nperson, of whose acts a great multitude by mutual covenant one with\nanother have made themselves everyone the author, to the end he may\nuse the strength and means of them all, as he shall think expedient,\nfor their peace and common defence. And he that carrieth this person\nis called sovereign, and said to have sovereign power; and everyone\nbesides, his subject.'\n\n44. In order to understand the form in which the doctrine is stated,\nwe have to bear in mind the sense in which 'persona' is used by\nthe Roman lawyers, as = either a complex of rights, or the subject\n(or possessor) of those rights, whether a single individual or\na corporate body. In this sense of the word, a man's person is\nseparable from his individual existence as a man. 'Unus homo sustinet\nplures personas.' A magistrate, e.g., would be one thing in respect\nof what he is in himself, another thing in respect of his 'persona'\nor complex of rights belonging to him as a magistrate, and so too a\nmonarch. On the same principle, a man, remaining a man as before,\nmight devolve his 'persona,' the complex of his rights, on another.\nA son, when by the death of his father according to Roman law he was\ndelivered from 'patria potestas' and became in turn head of a family,\nacquired a 'persona' which he had not before, the 'persona' which had\npreviously belonged to the father. Again, to take a modern instance,\nthe fellows of a college, as a corporation, form one 'persona,' but\neach of them would bear other 'persons,' if, e.g., they happened to\nbe magistrates, or simply in respect of their rights as citizens.\nThus 'one person' above = one sustainer of rights; while in the\nsecond passage, ... 'carrieth this person,' it rather = the rights\nsustained.\n\n45. Hobbes expressly states that the sovereign 'person' may be an\n_assembly_ of men, but the natural associations of the term, when\nthe sovereign is spoken of as a person, favour the development of a\nmonarchical doctrine of sovereignty.\n\nSovereign power is attained either by acquisition or institution. By\nacquisition, when a man makes his children and their children, or a\nconqueror his enemies, to submit under fear of death. By institution,\nwhen men agree among themselves to submit to some man or assembly\n'on confidence to be protected against all others.' Hobbes speaks\n(II. 17, end) as if there were two ways by which a commonwealth\nand a sovereign defined as above could be brought into existence,\nbut clearly a sovereign by acquisition is not a sovereign in the\nsense explained. He does not 'carry a person of whose acts a great\nmultitude by _mutual covenant_ one with another, have made themselves\neveryone the author, to the end he may use the strength and means of\nthem all, as he shall think expedient, for their peace and common\ndefence.' And what Hobbes describes in the sequel (c. 18) are, as he\nexpressly says, rights of sovereigns by institution; but he seems\ntacitly to assume that every sovereign may claim the same, though he\ncould hardly have supposed that the existing sovereignties were in\ntheir origin other than sovereignties by acquisition.\n\n'A commonwealth is said to be instituted, when a multitude of men\ncovenant, everyone with everyone, that to whatsoever man or assembly\nof men shall be given by the major part the right to represent the\nperson of them all, everyone, as well he that voted for it as he\nthat voted against it, shall authorise all the actions and judgments\nof that man or assembly of men, in the same manner as if they were\nhis own, to the end to live peaceably amongst themselves, and to be\nprotected against other men' (c. 18). Here a distinction is drawn\nbetween the covenant of all with all to be bound by the act of the\nmajority in appointing a sovereign, and that act of appointment\nitself which is not a covenant of all with all. The natural\nconclusion would be that it was no violation of the covenant if the\nmajority afterwards transferred the sovereign power to other hands.\nBut in the sequel Hobbes expressly makes out such a transference to\nbe a violation of the original compact. This is an instance of his\ndesire to vindicate the absolute right of a _de facto_ monarch.\n\n46. Throughout these statements we are moving in a region of fiction\nfrom which Spinoza keeps clear. Not only is the supposition of\nthe devolution of wills or powers on a sovereign by a covenant\nhistorically a fiction (about that no more need be said); the\nnotion of an obligation to observe this covenant, as distinct from\na compulsion, is inconsistent with the supposition that there is\nno right other than power prior to the act by which the sovereign\npower is established. If there is no such right antecedent to the\nestablishment of the sovereign power, neither can there be any\nafter its establishment except in the sense of a power on the part\nof individuals which the sovereign power enables them to exercise.\nThis power, or 'jus civile,' cannot itself belong to the sovereign,\nwho enables individuals to exercise it. The only right which can\nbelong to the sovereign is the 'jus naturale,' [1] consisting in the\nsuperiority of his power, and this right must be measured by the\ninability of the subjects to resist. If they _can_ resist, the right\nhas disappeared. In a successful resistance, then, to an ostensibly\nsovereign power, there can on the given supposition be no wrong done\nto that power. To say that there is, would be a contradiction in\nterms. Is such resistance, then, a violation of the 'jus civile' as\nbetween the several subject citizens? In the absence of a sovereign\npower, no doubt, the 'jus civile' (according to the view in question,\nwhich makes it depend on the existence of an 'imperium') would cease\nto exist. But then a successful resistance would simply show that\nthere was no longer such a sovereign power. It would not itself be a\nviolation of 'jus civile,' but simply a proof that the conditions of\n'jus civile' were no longer present. It might at the same time be a\nstep to re-establishing them if, besides being a proof that the old\n'imperium' no longer exists, it implied such a combination of powers\nas suffices to establish a new one.\n\n[1] 'The 'jus naturale' is the liberty each man hath to use his own\npower as he will himself for the preservation of his own nature; that\nis to say of his own life; and consequently of doing anything which\nin his own judgment and reason he shall conceive to be the aptest\nmeans thereunto.' (_Lev_., I. 14.)\n\n47. No obligation, then, as distinct from compulsion, to submit\nto an ostensibly sovereign power can consistently be founded on\na theory according to which right either = simple power, or only\ndiffers from it, in the form of 'jus civile,' through being a power\nwhich an 'imperium' enables individuals to exercise as against each\nother. Hobbes could not, indeed, have made out his doctrine (of the\nabsolute submission to the sovereign) with any plausibility, if he\nhad stated with the explicitness of Spinoza that 'jus naturale' =\n'naturalis potentia.' That it is so is implied in the account of the\nstate of things preceding the establishment of sovereignty as one\nof 'bellum omnium contra omnes'; for where there is no recognition\nof a common good, there can be no right in any other sense than\npower. But where there are no rights but natural power, no obligatory\ncovenant can be made. In order, however, to get a sovereignty, to\nwhich there is a perpetual obligation of submission, Hobbes has to\nsuppose a covenant of all with all, preceding the establishment of\nsovereignty, and to the observance of which, therefore, there cannot\nbe an obligation in the sense that the sovereign punishes for the\nnon-observance (the obligation corresponding to 'jus civile' in\nSpinoza's sense), but which no one can ever be entitled to break.\nAs the obligatoriness of this covenant, then, cannot be derived\nfrom the sovereignty which is established through it, Hobbes has to\nascribe it to a 'law of nature' which enjoins 'that men perform their\ncovenants made' (_Lev_., I. 15). Yet in the immediate sequel of this\npassage he says expressly, 'The nature of justice consisteth in the\nkeeping of valid covenants, but the validity of covenants begins not\nbut with the constitution of a civil power, sufficient to compel men\nto keep them; and then it is also that propriety begins.' On this\nprinciple the covenant by which a civil power is for the first time\nconstituted cannot be a valid covenant. The men making it are not in\na position to make a valid covenant at all. The 'law of nature,' to\nwhich alone Hobbes can appeal according to his principles, as the\nsource of the obligatoriness of the covenant of all with all, he\ndefines as a 'precept or general rule, found out by reason, by which\na man is forbidden to do that which is destructive of his life, or\ntaketh away the means of preserving the same; and to omit that by\nwhich he thinketh it may best be preserved' (I. 14). When a law of\nnature, however, is said to command or forbid, we must not understand\nthose terms in that sense which, according to Hobbes, could only\nbe derived from the establishment of an 'imperium.' This 'law of\nnature,' therefore, is merely an expression in a general form of the\ninstinct by which, as Spinoza says, every living creature 'in suo\nesse perseverare conatur,' as guided by a calculation of consequences\n(for no meaning but this can be given to 'reason' according to\nHobbes). The prohibition, then, by this law of nature of a breach of\nthat covenant of all with all, by which a sovereign power is supposed\nto be established, can properly mean nothing more than that it is\neveryone's interest to adhere to it. This, however, could only be a\nconditional prohibition, conditional, in particular, on the way in\nwhich the sovereign power is exercised. Hobbes tries to show that it\nmust always be for the advantage of all to obey it, because not to\ndo so is to return to the state of universal war; but a successful\nresistance to it must be _ipso facto_ an establishment of a new\ncombined power which prevents the 'bellum omnium contra omnes' from\nreturning. At any rate, an obligation to submit to the established\n'imperium,' measured by the self-interest of each in doing so, is\nquite a different thing from the obligation which Hobbes describes in\nterms only appropriate (according to his own showing) to contracts\nbetween individuals enforced by a sovereign power.\n\n48. It would seem that Hobbes' desire to prove all resistance\nto established sovereignty unjustifiable leads him to combine\ninconsistent doctrines. He adopts the notion that men are 'natura\nhostes,' that 'jus naturale' = mere power, because it illustrates\nthe benefit to man's estate derived from the establishment of a\nsupreme power and the effects of the subversion of such power once\nestablished, which he assumes to be equivalent to a return to a\nstate of nature. But this notion does not justify the view that a\nrebellion, which is strong enough to succeed, is wrong. For this\npurpose he has to resort to the representation of the sovereign as\nhaving a right distinct from power, founded on a contract of all\nwith all, by which sovereignty is established. This representation\nis quite alien to Spinoza, with whom sovereignty arises, it is true,\nwhen 'plures in unum conveniunt,' but in the sense of combining\ntheir powers, not of contracting. But after all, the fiction of this\ncontract will not serve the purpose which Hobbes wants it to serve.\nThe sovereignty established by the contract can only have a _natural_\nright to be maintained inviolate, for all other right presupposes it,\nand cannot be presupposed by it. If this natural right means mere\npower, then upon a successful rebellion it disappears. If it means\nanything else it must mean that there are natural rights of men,\nother than their mere power, which are violated by its subversion.\nBut if there are such rights, there must equally be a possibility of\ncollision between the sovereign power and these natural rights, which\nwould justify a resistance to it.\n\n49. It may be asked whether it is worth while to examine the internal\nconsistency of a theory which turns upon what is admitted to be\nhistorically a fiction, the supposition of a contract of all with\nall. There are fictions and fictions however. The supposition that\nsome event took place which as a matter of history did not take place\nmay be a way of conveying an essentially true conception of some\nmoral relation of man. The great objection to the representation\nof the right of a sovereign power over subjects, and the rights\nof individuals which are enforced by this 'imperium,' as having\narisen out of a contract of all with all, is that it conveys a\nfalse notion of rights. It is not merely that the possibility of\nsuch a contract being made presupposes just that state of things--a\n_r\u00e9gime_ of recognised and enforced obligations--which it is assumed\nto account for. Since those who contract must already have rights,\nthe representation of society with its obligations as formed by\ncontract implies that individuals have certain rights, independently\nof society and of their functions as members of a society, which they\nbring with them to the transaction. But such rights abstracted from\nsocial function and recognition could only be powers, or (according\nto Hobbes' definition) liberties to use powers, which comes to the\nsame; i.e. they would not be rights at all; and from no combination\nor devolution of them could any right in the proper sense, anything\nmore than a combined power, arise.\n\n50. Thus the only logical development of that separation of right\nfrom social duty which is implied in the doctrine of 'social\ncontract' is that of Spinoza. Happily the doctrine has not been\nlogically developed by those whose way of thinking has been affected\nby it. The reduction of political right--the right of the state over\nits subjects--to superior power, has not been popularly accepted,\nthough the general conception of _national_ right seems pretty much\nto identify it with power. Among the enlightened, indeed, there has\nof late appeared a tendency to adopt a theory very like that of\nSpinoza, without the higher elements which we noticed in Spinoza;\nto consider all right as a power attained in that 'struggle for\nexistence' to which human 'progress' is reduced. But for one person,\nwho, as a matter of speculation, considers the right of society over\nhim to be a disguised might, there are thousands who, as a matter of\npractice, regard their own right as independent of that correlation\nto duty without which it is merely a might. The popular effect of\nthe notion that the individual brings with him into society certain\nrights which he does not derive from society,--which are other than\nclaims to fulfil freely (i.e. for their own sake) certain functions\ntowards society,--is seen in the inveterate irreverence of the\nindividual towards the state, in the assumption that he has rights\nagainst society irrespectively of his fulfilment of any duties to\nsociety, that all 'powers that be' are restraints upon his natural\nfreedom which he may rightly defy as far as he safely can.\n\n    D. _LOCKE._\n\n51. It was chiefly Rousseau who gave that cast to the doctrine of\nthe origin of political obligation in contract, in which it best\nlends itself to the assertion of rights apart from duties on the part\nof individuals, in opposition to the counter-fallacy which claims\nrights for the state irrespectively of its fulfilment of its function\nas securing the rights of individuals. It is probably true that\nthe _Contrat Social_ had great effect on the founders of American\nindependence, an effect which appears in the terms of the Declaration\nof Independence and in preambles to the constitutions of some of the\noriginal American states. But the essential ideas of Rousseau are\nto be found in Locke's _Treatise of Civil Government_, which was\nprobably well known in America for half a century before Rousseau was\nheard of. [1] Locke again constantly appeals to Hooker's first book\non _Ecclesiastical Polity_,[2] and Grotius[3] argues in exactly the\nsame strain.\n\nHooker, Grotius, Hobbes, Locke, and Rousseau only differ in their\napplication of the same conception; viz. that men live first in a\nstate of nature, subject to a law of nature, also called the law of\nreason; that in this state they are in some sense free and equal;\nthat 'finding many inconveniences' in it they covenant with each\nother to establish a government--a covenant which they are bound by\nthe 'law of nature' to observe--and that out of this covenant the\nobligation of submission to the 'powers that be' arises. Spinoza\nalone takes a different line: he does not question the state of\nnature or the origin of government in a combination of men who find\nthe state of nature 'inconvenient'; but he regards this combination\nas one of powers directed to a common end, and constituting superior\nforce, not as a covenant which men are bound by the law of nature to\nobserve.\n\n[1] Locke, _Civil Government_, chap. vii. sec. 87. 'Man, being born\nwith a title to perfect freedom, and an uncontrolled enjoyment of\nall the rights and privileges of the law of nature, equally with any\nother man or number of men in the world, hath by nature a power not\nonly to preserve his life, liberty, and estate against ... other men;\nbut to judge of and punish the breaches of that law in others....\nThere, and there only, is political society where every one of\nthe members hath quitted this natural power, resigned it up into\nthe hands of the community in all cases that exclude him not from\nappealing for protection to the law established by it.'\n\n[2] 'Laws human, of what kind soever, are available by consent,'\nHooker, _Eccl. Pol_. I. 10 (quoted by Locke, _l.c._ chap. xi. sec.\n134). 'To be commanded we do consent, when that society, whereof we\nbe a part, hath at any time before consented, without revoking the\nsame after by the like universal agreement.' Hooker;_ ibid_.\n\n[3] _De jure belli et pacis_, Proleg. secs. 15 and 16.\n\n52. The common doctrine is so full of ambiguities that it readily\nlends itself to opposite applications. In the first place 'state of\nnature' may be understood in most different senses. The one idea\ncommon to all the writers who suppose such a state to have preceded\nthat of civil society is a negative one. It was a state which was\n_not_ one of political society, one in which there was no civil\ngovernment; i.e. no supreme power, exercised by a single person or\nplurality of persons, which could compel obedience on the part of\nall members of a society, and was recognised as entitled to do so\nby them all, or by a sufficient number of them to secure general\nobedience. But was it one of society at all? Was it one in which men\nhad no dealings with each other except in the way of one struggling\nto make another serve his will and to get for himself what the other\nhad, or was it one in which there were ties of personal affection and\ncommon interest, and recognised obligations, between man and man?\nEvidently among those who spoke of a state of nature, there were very\nvarious and wavering conceptions on this point. They are apt to make\nan absolute opposition between the state of nature and the political\nstate, and to represent men as having suddenly contracted themselves\nout of one into the other. Yet evidently the contract would have been\nimpossible unless society in a form very like that distinctively\ncalled political had been in existence beforehand. If political\nsociety is to be supposed to have originated in a pact at all, the\ndifference between it and the preceding state of nature cannot, with\nany plausibility, be held to have been much more than a difference\nbetween a society regulated by written law and officers with defined\npower and one regulated by customs and tacitly recognised authority.\n\n53. Again, it was held that in a state of nature men were 'free and\nequal.' This is maintained by Hobbes as much as by the founders of\nAmerican independence. But if freedom is to be understood in the\nsense in which most of these writers seem to understand it, as a\npower of executing, of giving effect to, one's will, the amount\nof freedom possessed in a state of nature, if that was a state of\ndetachment and collision between individuals, must have been very\nsmall. Men must have been constantly thwarting each other, and (in\nthe absence of that 'jus in naturam,' as Spinoza calls it, which\ncombination gives) thwarted by powers of nature. In such a state\nthose only could be free, in the sense supposed, who were _not_\nequal to the rest; who, in virtue of superior power, could use the\nrest. But whether we suppose an even balance of weaknesses, in\nsubjection to the crushing forces of nature, or a dominion of few\nover many by means of superior strength, in such a state of nature no\ngeneral pact would be possible. No equality in freedom is possible\nexcept for members of a society of whom each recognises a good of\nthe whole which is also his own, and to which the free co-operation\nof all is necessary. But if such society is supposed in the state\nof nature--and otherwise the 'pact' establishing political society\nwould be impossible--it is already in principle the same as political\nsociety.\n\n54. It is not always certain whether the writers in question\nconsidered men to be actually free and equal in the state of nature,\nor only so according to the 'law of nature,' which might or might\nnot be observed. (Hobbes represents the freedom and equality in the\nstate of nature as actual, and this state as being for that reason\n'bellum omnium contra omnes.') They all, however, implicitly assume\na _consciousness_ of the law of nature in the state of nature. It\nis thus not a law of nature in the sense in which we commonly use\nthe term. It is not a law according to which the agents subject to\nit act necessarily but without consciousness of the law. It is a\nlaw of which the agent subject to it has a consciousness, but one\naccording to which he may or may not act; i.e. one according to which\nhe _ought_ to act. It is from it that the obligation to submission to\ncivil government, according to all these writers, is derived. But in\nregard to such a law, two questions have to be asked: firstly, how\ncan the consciousness of obligation arise without recognition by the\nindividual of claims on the part of others--social claims in some\nform or other--which may be opposed to his momentary inclinations?\nand secondly, given a society of men capable of such a consciousness\nof obligation, constituting a law according to which the members\nof the society are free and equal, in what does it differ from a\npolitical society? If these questions had been fairly considered,\nit must have been seen that the distinction between a political\nsociety and a state of nature, governed by such a law of nature, was\nuntenable; that a state of things out of which political society\ncould have arisen by compact, must have been one in which the\nindividual regarded himself as a member of a society which has claims\non him and on which he has claims, and that such society is already\nin principle a political society. But the ambiguity attending the\nconception of the law of nature prevented them from being considered.\nWhen the writers in question spoke of a law of nature, to which men\nin the state of nature were subject, they did not make it clear to\nthemselves that this law, as understood by them, could not exist at\nall without there being some recognition or consciousness of it on\nthe part of those subject to it. The designation of it as 'law of\nnature' or 'law of God' helped to disguise the fact that there was no\nimponent of it, in the sense in which a law is imposed on individuals\nby a political superior. In the absence of such an imponent, unless\nit is either a uniformity in the relations of natural events or an\nirresistible force--and it is not represented in either of these ways\nin juristic writings--it can only mean a recognition of obligation\narising in the consciousness of the individual from his relations\nto society. But this not being clearly realised, it was possible to\nrepresent the law of nature as antecedent to the laws imposed by a\npolitical superior, without its being observed that this implied the\nantecedence of a condition of things in which the result supposed\nto be obtained through the formation of political society--the\nestablishment, viz. of reciprocal claims to freedom and equality on\nthe part of members of a society--already existed.\n\n55. In fact, the condition of society in which it could properly\nbe said to be governed by a law of nature, i.e. by an obligation\nof which there is no imponent but the consciousness of man, an\nobligation of which the breach is not punished by a political\nsuperior, is not antecedent to political society, but one which it\ngradually tends to produce. It is the radical fault of the theory\nwhich finds the origin of political society in compact, that it has\nto reverse the true process. To account for the possibility of the\ncompact of all with all, it has to assume a society subject to a law\nof nature, prescribing the freedom and equality of all. But a society\ngoverned by such a law as a law of nature, i.e. with no imponent\nbut man's consciousness, would have been one from which political\nsociety would have been a decline, one in which there could have\nbeen no motive to the establishment of civil government. Thus this\ntheory must needs be false to itself in one of two ways. Either it is\nfalse to the conception of a law of nature, with its prescription of\nfreedom and equality, as governing the state of things prior to the\ncompact by which political society is established, only introducing\nthe law of nature as the ground of the obligatoriness of that\ncompact, but treating the state of nature as one of universal war in\nwhich no reciprocal claims of any sort were recognised, (so Hobbes);\nor just so far as it realises the conception of a society governed\nby a law of nature, as equivalent to that spontaneous recognition by\neach of the claims of all others, without which the covenant of all\nwith all is in fact unaccountable, it does away with any appearance\nof necessity for the transition from the state of nature to that of\npolitical society and tends to represent the latter as a decline from\nthe former. This result is seen in Rousseau; but to a great extent\nRousseau had been anticipated by Locke. The broad differences between\nLocke and Hobbes in their development of the common doctrine, are\n(1) that Locke denies that the state of nature is a state of war,\nand (2) that Locke distinguishes the act by which political society\nis established from that by which the government, legislative and\nexecutive, is established, and is consequently able to distinguish\nthe dissolution of the political society from the dissolution of the\ngovernment (_Civ. Gov_. Chapter XIX. Sect. 211).\n\n56. The 'state of nature' and the 'state of war' 'are so far distant\nas a state of peace, good-will, mutual assistance and preservation,\nand a state of enmity, malice, violence, and mutual destruction, are\nfrom one another. Men living together, according to reason, without\na common superior on earth with authority to judge between them, is\nproperly the state of nature. But force, or a declared design of\nforce, upon the person of another, where there is no common superior\non earth to appeal to for relief, is the state of war' (_Civ. Gov_.\nIII. Sect. 19). In the state of nature, however, when the state of\nwar has once begun, there is not the same means of terminating it as\nin civil society.\n\nThe right of war may belong to a man, 'though he be in society and\na fellow-subject,' when his person or property is in such immediate\ndanger that it is impossible to appeal for relief to the common\nsuperior. 'But when the actual force is over, the state of war ceases\nbetween those that are in society ... because there lies the remedy\nof appeal for the past injury and to prevent future harm.' In the\nstate of nature, when the state of war has once begun, it continues\nuntil the aggressor offers peace and reparation. The state of war,\nthough not proper to the state of nature, is a frequent incident of\nit, and to avoid it is one great reason of men's putting themselves\ninto society (_ib_. Sect. 21). The state of nature is not one that is\naltogether over and done with. 'All rulers of independent governments\nall through the world are in a state of nature.' The members of one\nstate in dealing with those of another are in a state of nature,\nand the law of nature alone binds them. 'For truth and keeping of\nfaith belongs to men as men, and not as members of society' (_Civ.\nGov_. II. Sect. 14). 'All men are naturally in that state and remain\nso till by their own consents they make themselves members of some\npolitic society' (_ib_. Sect. 15).\n\n57. The antithesis, as put above, between the state of nature and\nthe state of war, can only be maintained on the supposition that the\n'law of nature' is observed in a state of nature. Locke does not\nexplicitly state that this is the case. If it were so, it would not\nappear how the state of war should arise in the state of nature.\nBut he evidently thought of the state of nature as one in which men\nrecognised the law of nature, though without fully observing it. He\nquotes with approval from Hooker language which implies that not only\nis the state of nature a state of equality, but that in it there is\nsuch consciousness of equality with each other on the part of men\nthat they recognise the principle 'do as you would be done by' (_Civ.\nGov_. II. Sect. 5). With Hobbes, in the supposed state of nature the\n'law of nature' is emphatically _not_ observed, and hence it is a\nstate of war. As has been pointed out above, a 'law of nature' in the\nsense in which these writers use the term, as a law which obliges but\nyet has no imponent in the shape of a sovereign power, is, as Locke\nsays (Sect. 136), 'nowhere to be found but in the minds of men'; it\ncan only have its being in the consciousness of those subject to it.\nIf therefore we are to suppose a state of nature in which such a law\nof nature exists, it is more consistent to conceive it in Locke's\nway than in that of Hobbes; more consistent to conceive it as one in\nwhich men recognise duties to each other than as a 'bellum omnium\ncontra omnes.'\n\n58. As to the second point, from his own conception of what men\nare in the state of nature, and of the ends for which they found\npolitical societies, Locke derives certain necessary limitations\nof what the supreme power in a commonwealth may rightfully do. The\nprime business of the political society, once formed, is to establish\nthe legislative power. This is 'sacred and unalterable in the hands\nwhere the community have once placed it' (_Civ. Gov_. XI. Sect. 134);\n'unalterable,' that is, as we gather from the sequel, by anything\nshort of an act of the community which originally placed it in these\nhands. But as men in a state of nature have 'no arbitrary power' over\neach other (which must mean that according to the 'law of nature'\nthey have no such power), so they cannot transfer any such power to\nthe community nor it to the legislature. No legislature can have the\nright to destroy, enslave, or designedly impoverish the subjects. And\nas no legislature can be entitled to do anything which the individual\nin the state of nature would not by the law of nature be entitled to\ndo, so its great business is to declare the law of nature in general\nterms and administer it by known authorised judges. The state of\nnature, Locke seemed to think, would have done very well, but for\nthe inconvenience of every man being judge in his own case of what\nthe law of nature requires. It is to remedy this inconvenience by\nestablishing (1) a settled law, received by common consent, (2) a\nknown and indifferent judge, (3) a power to enforce the decisions of\nsuch a judge, that political society is formed.\n\nHence a legislature violates the 'trust that is put in it' by society\nunless it observes the following rules: (1) it is to govern 'by\npromulgated established laws,' not to be varied to suit particular\ninterests; (2) these laws are to be designed only for the good of\nthe people; (3) it must not raise taxes but by consent of the people\nthrough themselves or their deputies; (4) it neither 'must, nor\ncan, transfer the power of making laws to anybody else, or place it\nanywhere but where the people have' (_Civ. Gov_. XI. Sect. 142).\n\n59. Thus 'the legislative being only a fiduciary power to act for\ncertain ends, there remains still in the people a supreme power\nto remove or alter the legislature.' Subject to this ultimate\n'sovereignty' (a term which Locke does not use) of the people, the\nlegislative is necessarily the supreme power, to which the executive\nis subordinate. An appearance to the contrary can only arise in cases\nwhere (as in England) the supreme executive power is held by a person\nwho has also a share in the legislative. Such a person may 'in a\nvery tolerable sense be called supreme.' It is not, however, to him\nas supreme legislator (which he is not, but only a participator in\nsupreme legislation) but to him as supreme executor of the law that\noaths of allegiance are taken. It is only as executing the law that\nhe can claim obedience, his executive power being, like the power\nof the legislative, 'a fiduciary trust placed in him' to enforce\nobedience to law and that only (_Civ. Gov_. XIII. Sect. 151). This\ndistinction of the supreme power of the people from that of the\nsupreme executive, corresponding to a distinction between the act of\ntransferring individual powers to a society and the subsequent act\nby which that society establishes a particular form of government,\nenables Locke to distinguish what Hobbes had confounded, the\ndissolution of government and the dissolution of political society.\n\n60. He gets rid of Hobbes' notion, that because the 'covenant of all\nwith all,' by which a sovereignty is established, is irrevocable,\ntherefore the government once established is unalterable. He\nconceives the original pact merely as an agreement to form a civil\nsociety, which must indeed have a government, but not necessarily\nalways the same government. The pact is a transfer by individuals of\ntheir natural rights to a society, and can only be cancelled through\nthe dissolution of the society by foreign conquest. The delegation\nby the society of legislative and executive powers to a person or\npersons is a different matter. The society always retains the right,\naccording to Locke, of resuming the powers thus delegated, and must\nexercise the light in the event either of the legislative being\naltered, (placed in different hands from those originally intended),\nof a collision between its executive and legislative officers, or of\na breach between different branches of the legislature (when as in\nEngland there are such different branches), or when legislative and\nexecutive or either of them 'act contrary to their trust.' He thus in\neffect vindicates the right of revolution, ascribing to a 'sovereign\npeople' the attributes which Hobbes assigned to a 'person,' single\nor corporate, on which the people forming a society were supposed by\nan irrevocable act to have devolved their powers. In other words,\nhe considered the whole civil society in all cases to have the\nrights which Hobbes would only have allowed it to possess where the\ngovernment was not a monarchy or aristocracy but a democracy; i.e.\nwhere the supreme 'person' upon which all devolve their several\n'personae' is an 'assembly of all who will come together.' As such\na democracy did not then exist in Europe, any more than it does\nnow, except in some Swiss cantons, the practical difference between\nthe two views was very great. Both Locke and Hobbes wrote with a\npresent political object in view, Hobbes wishing to condemn the\nRebellion, Locke to justify the Revolution. For practical purposes,\nLocke's doctrine is much the better; but if Hobbes' translation\nof the irrevocableness of the covenant of all with all into the\nillegitimacy of resistance to an established government in effect\nentitles any tyrant [l] to do as he likes, on the other hand, it is\nimpossible upon Locke's theory to pronounce when resistance to a _de\nfacto_ government is legitimate or otherwise. It would be legitimate\naccording to him when it is an act of the 'sovereign people' (not\nthat Locke uses the phrase), superseding a government which has been\nfalse to its trust. But this admitted, all sorts of questions arise\nas to the means of ascertaining what is and what is not an act of the\n'sovereign people.'\n\n[1] According to Hobbes, tyranny = 'monarchy misliked'; oligarchy =\n'aristocracy misliked.'\n\n61. The rapid success of the revolution without popular disorder\nprevented Locke's theory from becoming of importance, but in the\npresence of such sectarian enthusiasm as existed in Hobbes' time\nit would have become dangerous. It would not any more than that of\nHobbes justify resistance to 'the powers that be' on the part of any\nbody of men short of the civil society acting as a whole, i.e. by a\nmajority. The sectaries of the time of the Rebellion, in pleading\na natural or divine right to resist the orders of the government,\nwould have been as much condemned by Locke's theory as by that of\nHobbes. But who can say when any popular action by which established\npowers, legislative or executive, are resisted or altered is an\nact of the 'sovereign people,' of the civil society acting as a\nwhole, or no. Where government is democratic, in Hobbes' sense,\ni.e. vested in an assembly of all who will come together, the act\nof the 'sovereign people' is unmistakeable. It is the act of the\nmajority of such an assembly. But in such a case the difficulty\ncannot arise. There can be no withdrawal by the sovereign people\nof power from its legislative or executive representatives, since\nit has no such representatives. In any other case it would seem\nimpossible to say whether any resistance to, or deposition of, an\nestablished legislative or executive is the act of the majority of\nthe society or no Any sectary or revolutionary may plead that he has\nthe 'sovereign people' on his side. If he fails, it is not certain\nthat he has them not on his side; for it may be that, though he has\nthe majority of the society on his side, yet the society has allowed\nthe growth within it of a power which prevents it from giving effect\nto its will. On the other hand, if the revolution succeeds, it is not\ncertain that it had the majority on its side when it began, though\nthe majority may have come to acquiesce in its result. In short,\non Locke's principle that any particular government derives its\nauthority from an act of the society, and society by a like act may\nrecall the authority, how can we ever be entitled to say that such an\nact has been exercised?\n\n62. It is true that there is no greater difficulty about supposing\nit to be exercised in the dissolution than in the establishment of a\ngovernment, indeed not so much; but the act of first establishing a\ngovernment is thrown back into an indefinite past. It may easily be\ntaken for granted without further inquiry into the conditions of its\npossibility. On the other hand, as the act of legitimately dissolving\na government or superseding one by another has to be imagined as\ntaking place in the present, the inquiry into the conditions of\nits possibility cannot well be avoided. If we have once assumed\nwith Hobbes and Locke, that the authority of government is derived\nfrom a covenant of all with all,--either directly or mediately by a\nsubsequent act in which the covenanted society delegates its powers\nto a representative or representatives,--it will follow that a like\nact is required to cancel it; and the difficulties of conceiving\nsuch an act under the conditions of the present are so great, that\nHobbes' view of the irrevocableness of the original act by which\nany government was established has much to say for itself. If the\nauthority of any government--its claim on our obedience--is held to\nbe derived not from an original covenant, or from any covenant, but\nfrom the function which it serves in maintaining those conditions\nof freedom which are conditions of the moral life, then no act of\nthe people in revocation of a prior act need be reckoned necessary\nto justify its dissolution. If it ceases to serve this function,\nit loses its claim on our obedience. It is a \u03c0\u03b1\u03c1\u03ad\u03ba\u03b2\u03b1\u03c3\u03b9\u03c2. [1] (Here\nagain the Greek theory, deriving the authority of government not\nfrom consent but from the end which it serves, is sounder than the\nmodern.) Whether or no any particular government has on this ground\nlost its claim and may be rightly resisted, is a question, no doubt,\ndifficult for the individual to answer with certainty. In the long\nrun, however, it seems generally if not always to answer itself. A\ngovernment no longer serving the function described--which, it must\nbe remembered, is variously served according to circumstances--brings\nforces into play which are fatal to it. But if it is difficult\nupon this theory for the individual to ascertain, as a matter of\nspeculation, whether resistance to an established government is\njustified or no, at any rate upon this theory such a justification of\nresistance is possible. Upon Locke's theory, the condition necessary\nto justify it--viz. an act of the whole people governed--is one\nwhich, anywhere except in a Swiss canton, it would be impossible\nto fulfil. For practical purposes, Locke comes to a right result\nby ignoring this impossibility. Having supposed the reality of one\nimpossible event,--the establishment of government by compact or\nby the act of a society founded on compact,--he cancels this error\nin the result by supposing the possibility of another transaction\nequally impossible, viz, the collective act of a people dissolving\nits government.\n\n[1] [Greek \u03c0\u03b1\u03c1\u03ad\u03ba\u03b2\u03b1\u03c3\u03b9\u03c2 (parekbasis) = a government without a proper\nbasis Tr]\n\n63. It is evident from the chapter (XIX.) on the 'dissolution of\ngovernment' that he did not seriously contemplate the conditions\nunder which such an act could be exercised. What he was really\nconcerned about was to dispute 'the right divine to govern wrong'\non the part of a legislative as much as on the part of an executive\npower; to maintain the principle that government is only justified\nby being for the good of the people, and to point out the difference\nbetween holding that some government is necessarily for the good of\nthe people, and holding that any particular government is for their\ngood, a difference which Hobbes had ignored. In order to do this,\nstarting with the supposition of an actual deed on the part of a\ncommunity establishing a government, he had to suppose a reserved\nright on the part of the community by a like deed to dissolve\nit. But in the only particular case in which he contemplates a\nloss by the legislature of its representative character, he does\nnot suggest the establishment of another by an act of the whole\npeople. He saw that the English Parliament in his time could not\nclaim to be such as it could be supposed that the covenanting\ncommunity originally intended it to be. 'It often comes to pass,'\nhe says, 'in governments where part of the legislative consists of\nrepresentatives chosen by the people, that in tract of time this\nrepresentation becomes very unequal and disproportionate to the\nreasons it was first established upon.... The bare name of a town,\nof which there remains not so much as the ruins, where scarce so\nmuch housing as a sheepcote, or more inhabitants than a shepherd is\nto be found, sends as many representatives to the grand assembly of\nlaw-makers, as a whole county, numerous in people, and powerful in\nriches. This strangers stand amazed at, and everyone must confess\nneeds a remedy; though most think it hard to find one, because the\nconstitution of the legislative being the original and supreme act\nof the society antecedent to all positive laws in it, and depending\nwholly on the people, no inferior power can alter it. And therefore\nthe people, when the legislative is once constituted, having, in such\na government as we have been speaking of, no power to act as long as\nthe government stands, this inconvenience is thought incapable of a\nremedy' (Chapter XIII. Sect. 157). The only remedy which he suggests\nis not an act of the sovereign people, but an exercise of prerogative\non the part of the executive, in the way of redistributing\nrepresentation, which would be justified by 'salus populi suprema\nlex.'\n\n    E. _ROUSSEAU._\n\n64. That 'sovereignty of the people,' which Locke looks upon as\nheld in reserve after its original exercise in the establishment\nof government, only to be asserted in the event of a legislature\nproving false to its trust, Rousseau supposes to be in constant\nexercise. Previous writers had thought of the political society\nor commonwealth, upon its formation by compact, as instituting a\nsovereign. They differed chiefly on the point whether the society\nafterwards had or had not a right of displacing an established\nsovereign. Rousseau does not think of the society, _civitas_ or\ncommonwealth, as thus instituting a sovereign, but as itself in the\nact of its formation becoming a sovereign and ever after continuing\nso.\n\n65. In his conception of a state of nature, Rousseau does not differ\nfrom Locke. He conceives the motive for passing out of it, however,\nsomewhat differently and more after the manner of Spinoza. With\nLocke the motive is chiefly a sense of the desirability of having\nan impartial judge, and efficient enforcement of the law of nature.\nAccording to Rousseau, some pact takes place when men find the\nhindrances to their preservation in a state of nature too strong for\nthe forces which each individual can bring to bear against them.\nThis recalls Spinoza's view of the 'jus in naturam' as acquired by a\ncombination of the forces of individuals in civil society.\n\n66. The 'problem of which the social contract is a solution' Rousseau\nstates thus: 'To find a form of association which protects with the\nwhole common force the person and property of each associate, and in\nvirtue of which everyone, while uniting himself to all, only obeys\nhimself and remains as free as before.' (_Contrat Social_, I, vi.)\nThe terms of the contract which solves this problem Rousseau states\nthus: 'Each of us throws into the common stock his person and all\nhis faculties under the supreme direction of the general will; and\nwe accept each member as an individual part of the whole.... There\nresults from this act of association, in place of the several persons\nof the several contracting parties, a collective moral body, composed\nof as many members as there are voices in the assembly, which body\nreceives from this act its unity, its common self, its life, and its\nwill.... It is called by its members a _state_ when it is passive, a\n_sovereign_ when it is active, a _power_ when compared with similar\nbodies. The associates are called collectively a _people_, severally\n_citizens_ as sharing in the sovereign authority, _subjects_ as\nsubmitted to the laws of the state.' (_Ib_.) Each of them is under\nan obligation in two relations, 'as a member of the sovereign body\ntowards the individuals, and as a member of the state towards the\nsovereign.' All the subjects can by a public vote be placed under a\nparticular obligation towards the sovereign, but the sovereign cannot\nthus incur an obligation towards itself. It cannot impose any law\nupon itself which it cannot cancel. Nor is there need to restrict\nits powers in the interest of the subjects. For the sovereign body,\nbeing formed only of the individuals which constitute it, can have no\ninterest contrary to theirs. 'From the mere fact of its existence,\nit is always all that it ought to be' (since, from the very fact of\nits institution, all merely private interests are lost in it). On\nthe other hand, the will of the individual (his particular interest\nas founded upon his particular desires) may very well conflict with\nthat general will which constitutes the sovereign. Hence the social\npact necessarily involves a tacit agreement, that anyone refusing to\nconform to the general will shall be forced to do so by the whole\nbody politic; in other words, 'shall be forced to be free,' since the\nuniversal conformity to the general will is the guarantee to each\nindividual of freedom from dependence on any other person or persons.\n(I, vii.)\n\n67. The result to the individual may be stated thus. He exchanges\nthe natural liberty to do and get what he can, a liberty limited by\nhis relative strength, for a liberty at once limited and secured by\nthe general will; he exchanges the mere possession of such things\nas he can get, a possession which is the effect of force, for a\nproperty founded on a positive title, on the guarantee of society. At\nthe same time he becomes a moral agent. Justice instead of instinct\nbecomes the guide of his actions. For the moral slavery to appetite\nhe substitutes the moral freedom which consists in obedience to a\nself-imposed law. Now for the first time it can be said that there is\nanything which he _ought_ to do, as distinguished from that which he\nis _forced_ to do. (I, viii.)\n\n68. Such language makes it clear that the sovereignty of which\nRousseau discusses the origin and attributes, is something\nessentially different from the supreme coercive power which previous\nwriters on the 'jus civile' had in view. A contemporary of Hobbes had\nsaid that\n\n    'there's on earth a yet auguster thing,\n    Veiled though it be, than Parliament and King.'\n\nIt is to this 'auguster thing,' not to such supreme power as English\nlawyers held to be vested in 'Parliament and King,' that Rousseau's\naccount of the sovereign is really applicable. What he says of it is\nwhat Plato or Aristotle might have said of the \u03b8\u03b5\u1fd6\u03bf\u03c2 \u03bd\u03bf\u1fe6\u03c2, [1] which\nis the source of the laws and discipline of the ideal polity, and\nwhat a follower of Kant might say of the 'pure practical reason,'\nwhich renders the individual obedient to a law of which he regards\nhimself, in virtue of his reason, as the author, and causes him to\ntreat humanity equally in the person of others and in his own always\nas an end, never merely as a means. But all the while Rousseau\nhimself thinks that he is treating of the sovereign in the ordinary\nsense; in the sense of some power of which it could be reasonably\nasked how it was established in the part where it resides, when and\nby whom and in what way it is exercised. A reader of him who is more\nor less familiar with the legal conception of sovereignty, but not at\nall with that of practical reason or of a 'general will.' a common\nego, which wills nothing but what is for the common good, is pretty\nsure to retain the idea of supreme coercive power as the attribute of\nsovereignty, and to ignore the attribute of pure disinterestedness,\nwhich, according to Rousseau, must characterise every act that can be\nascribed to the sovereign.\n\n[1] [Greek \u03b8\u03b5\u1fd6\u03bf\u03c2 \u03bd\u03bf\u1fe6\u03c2 (theios nous) = divine mind or intelligence Tr]\n\n69. The practical result is a vague exaltation of the prerogatives\nof the sovereign people, without any corresponding limitation of the\nconditions under which an act is to be deemed that of the sovereign\npeople. The justifiability of laws and acts of government, and of\nthe rights which these confer, comes to be sought simply in the fact\nthat the people wills them, not in the fact that they represent a\ntrue 'volont\u00e9 g\u00e9n\u00e9rale,' an impartial and disinterested will for the\ncommon good. Thus the question of what really needs to be enacted\nby the state in order to secure the conditions under which a good\nlife is possible, is lost sight of in the quest for majorities;\nand as the will of the people in any other sense than the measure\nof what the people will tolerate is really unascertainable in the\ngreat nations of Europe, the way is prepared for the sophistries of\nmodern political management, for manipulating electoral bodies, for\ninfluencing elected bodies, and procuring pl\u00e9biscites.\n\n70. The incompatibility between the ideal attributes which Rousseau\nascribes to the sovereign and any power that can actually be\nexercised by any man or body of men becomes clearer as we proceed. He\nexpressly distinguishes 'sovereignty' from power, and on the ground\nof this distinction holds that it cannot be alienated, represented,\nor divided. 'Sovereignty being simply the exercise of the general\nwill can never be alienated, and the sovereign, who is only a\ncollective being, can only be represented by himself. Power can be\ntransmitted, but not will.' (II, i.) In order to the possibility of a\nrepresentation of the general will, there must be a permanent accord\nbetween it and the individual will or wills of the person or persons\nrepresenting it. But such _permanent_ accord is impossible. (_Ib_.)\nAgain, a general will is from the nature of the case indivisible.\nIt is commonly held to be divided, not, indeed, in respect of its\nsource, but in respect of the objects to which its acts are directed,\ne.g. into legislative and executive powers; into rights of taxation,\nof war, of justice, &c. But this supposed division of sovereign\npowers or rights implies that 'what are only emanations from the\nsovereign authority are taken to be parts of it.' (II, ii.) The only\nexercise of sovereign power, properly so called, is in legislation,\nand there is no proper act of legislation except when the whole\npeople comes to a decision with reference to the whole people. Then\nthe matter decided on is as general as the will which decides on it;\nand this is what constitutes a law. (II, vi.) By this consideration\nseveral questions are answered. Whose office is it to make laws?\nIt is that of the general will, which can neither be alienated nor\nrepresented. Is the prince above the law? The answer is, He is a\nmember of the state, and cannot be so. Can the law be unjust? No one\ncan be unjust to himself: therefore not the whole people to the whole\npeople. How can we be free and yet subject to the laws? The laws are\nthe register of our own will. (_Ib_.) Laws, in short, are properly\nthose general 'conditions of civil association' which the associates\nimpose on themselves. Where either of the specified conditions is\nlacking, where either it is not the universal will from which an\nordinance proceeds or it is not the whole people to which it relates,\nit is not a law but a decree, not an act of sovereignty but of\nmagistracy. (_Ib_.)\n\n71. This leads to a consideration of the nature and institution of\nmagistracy or government. (III, i.) The government is never the same\nas the sovereign. The two are distinguished by their functions,\nthat of the one being legislative, that of the other executive.\nEven where the people itself governs, its acts of government must\nbe distinguished from its acts of sovereignty, the former having\na particular, the latter a general, reference. Government is the\nexercise according to law of the executive power, and the 'prince'\nor 'magistrate' is the man or body of men charged with this\nadministration; 'a body intermediary between the subjects and the\nsovereign, charged with the execution of the laws, and with the\nmaintenance of civil and political freedom' (_Ib_.) Where all or\nmost of the citizens are magistrates, or charged with the supreme\nfunctions of government, we have a democracy; where a few, an\naristocracy; where one is so charged, a monarchy. (III, iii.) The\ndifferences depend, not as Hobbes and others had supposed, on the\nquarter where the sovereignty resides--for it must always reside in\nthe whole body of people--but on that in which government resides.\nThe idea of government is that the dominant will of the prince should\nbe the general will or law, that it should be simply the public\nforce by which that general will is brought to bear on individuals\nor against other states, serving the same purpose in the state as\nthe union of soul and body in the individual (III, i.); and this\nidea is most likely to be satisfied under a democracy. There, the\ngeneral will (if there _is_ a general will, which the democracy is\nno guarantee for there being, according to Rousseau's distinction\nbetween the 'volont\u00e9 g\u00e9n\u00e9rale' and 'volont\u00e9 de tous,' of which more\nhereafter) cannot fail to coincide with the dominant will of the\ngovernment. The prevalence of particular interests may prevent there\nbeing a will at all of the kind which Rousseau would count general or\ntruly sovereign, but they cannot be more prevalent in the magistracy,\nconstituted by the whole people, than in the same people acting\nin the way of legislation. In a democracy, therefore, the will of\nthe sovereign, so far as there is a sovereign in the proper sense,\nnecessarily finds expression in the will of the magistracy. On the\nother hand, though under either of the other forms of government\nthere is danger of collision between sovereign and government, yet\nthe force of the government is greater than in a democracy. It is\ngreatest when the government is a monarchy, because under all other\nforms there is more or less discrepancy between the individual wills\nof the several persons composing the government, as directed to the\nparticular good of each, and the corporate will of the government of\nwhich the object is its own efficiency, and under a monarchy this\nsource of weakness is avoided. (III, ii.) As there is more need of\nforce in the government in proportion to the number of subjects whose\nparticular wills it has to control, it follows that monarchy is best\nsuited to the largest, democracy to the smallest states. (III, iii.)\n\n72. As to the institution of government, Rousseau maintains\nstrenuously that it is not established by contract. 'There is only\none contract in the state, viz. that of the original association;\nand this excludes every other. No other public contract can be\nimagined which would not be a violation of the first.' (III, xvi.)\nEven when government is vested in an hereditary body, monarchic\nor aristocratic, this is merely a provisional arrangement, made\nand liable to be reversed by the sovereign, whose officers the\ngovernors are. The act by which government is established is twofold,\nconsisting firstly of the passing of a law by the sovereign, to the\neffect that there shall be a government; secondly, of an act in\nexecution of this law, by which the governors--the 'magistrates'--are\nappointed. But it may be asked, How can the latter act, being one not\nof sovereignty but of magistracy (for it has a particular reference\nin the designation of the governors), be performed when as yet there\nis no government? The answer is that the people resolves itself\nfrom a sovereign body into a body of magistrates, as the English\nParliament resolves itself constantly from a legislative body into\na committee. In other words, by a simple act of the general will a\ndemocracy is for the time established, which then proceeds either to\nretain the government in its own hands, or to place it in those of an\nofficer, according to the form in which the sovereign has decided to\nestablish the government. (III, xvii.) Acts similar to that by which\nthe government was originally constituted need to be periodically\nrepeated in order to prevent the government from usurping the\nfunctions of the sovereign, i.e. the function of legislation.\n(Could this usurpation occur under a democracy?) In order that the\nsovereignty may not fall into abeyance, it must be exercised, and\nit can only be exercised in assemblies of the whole people. These\nmust be held periodically, and at their opening two questions ought\nto be submitted; one, whether it pleases the sovereign to maintain\nthe present form of government; the other, whether it pleases the\npeople to leave the administration in the hands of those at present\ncharged with it. (III, xviii.) Such assemblies are entitled to\nrevise and repeal all previously enacted laws. A law not so repealed\nthe sovereign must be taken tacitly to confirm, and it retains\nits authority. But as the true sovereign is not any law but the\ngeneral will, no law, even the most fundamental, can be exempt from\nliability to repeal. Even the social pact itself might legitimately\nbe dissolved, by agreement of all the citizens assembled. (_Ib_.)\n(Whether unanimity is necessary for the purpose is not specified.)\nWithout such assemblies there can be no exercise of the general will\n(which, as before stated, cannot be represented), and consequently\nno freedom. The English people, e.g., is quite mistaken in thinking\nitself free. It is only free while the election of members of\nParliament is going on. As soon as they are elected, it is in\nbondage, it is nothing. In the short moments of its freedom it makes\nsuch a bad use of it that it well deserves to lose it. (III, xv.)\n\n73. It appears from the above that, according to Rousseau, the\ngeneral will, which is the true sovereign, can only be exercised\nin assemblies of the whole people. On the other hand, he does not\nhold that an act of such an assembly is necessarily an act of the\ngeneral will. After telling us that the 'general will is always\nright, and always tends to the public good,' he adds, 'but it does\nnot follow that the deliberations of the people have always the same\nrectitude.... There is often a great difference between the will\nof all and the general will. The latter only looks to the common\ninterest; the other looks to private interests, and is only a sum of\nthe wills of individuals.' (II, iii.) Again (II, iv.), 'that which\ngeneralises the will is not so much the number of voices as the\ncommon interest which unites them.' He holds apparently that in the\nassembly of the whole people, if they had sufficient information, and\nif no minor combinations of particular interests were formed within\nthe entire body, the difference between the wills of individuals\nwould neutralise each other, and the vote of the whole body would\nexpress the true general will. But in fact in all assemblies there\nis at least a liability to lack of information and to the formation\nof cliques; and hence it cannot be held that the vote of the\nassembly necessarily expresses the general will. Rousseau, however,\ndoes not go so far as to say that unless the law is actually such\nas contributes to the common good, it is not an expression of the\ngeneral will. The general will, according to him, always aims at\nor wills the common good, but is liable to be mistaken as to the\nmeans of attaining it.' It is always right, but the judgment which\nguides it is not always enlightened.... Individuals see the good\nwhich they reject; the public wills the good which it does not\nsee.' (II, vi.) Hence the need of a guide in the shape of a great\nlawgiver. Apparently, however, the possible lack of enlightenment on\nthe part of the general will does not, in Rousseau's view, prevent\nits decisions from being for the public good. In discussing the\n'limits of the sovereign power' he maintains that there can be no\nconflict between it and the natural right of the individual, because,\n'although it is only that part of his power, his goods, his freedom,\nof which the use is important to the community, that the individual\ntransfers to the sovereign by the social pact, yet the sovereign\nalone can be judge of the importance'; and the sovereign 'cannot\nlay on the subjects any constraint which is not for the good of the\ncommunity.' 'Under the law of reason' (which is thus identified with\nthe general will) 'nothing is done without a cause, any more than\nunder the law of nature.' (II, iv.)\n\n74. But though even an unenlightened general will is the general\nwill still, and (as we are left to infer) cannot in its decisions\ndo otherwise than promote the public good, Rousseau distinctly\ncontemplates the possibility of the general will being so overpowered\nby particular interests that it finds no expression in the votes of\na popular assembly, though the assembly be really one of a whole\npeople, and the vote of the majority is duly taken. (IV, i.) In such\ncases it is not that the general will is 'annihilated or corrupted;\nit is always constant, unalterable, and pure.' Even in the individual\nwhose vote is governed by his private interest the general will\nis not extinct, nor is he unaware either of what the public good\nrequires or of the fact that what is for the public good is also for\nhis own. But his share in the public evil to which he knows that\nhis vote will contribute, seems nothing by the side of the special\nprivate good which he hopes to gain. By his vote, in short, he does\nnot answer the question, Is so and so for the advantage of the state?\nbut, Is it for the advantage of this particular man or party? (Ib.)\n\n75. The test of the dominance of the general will in assemblies of\nthe people is an approach to unanimity. 'Long debates, discussions,\ntumult, indicate the ascendency of particular interests and the\ndecline of the state.' (IV, ii.) Rousseau, however, does not venture\nto say that absolute unanimity in the assembly is necessary to an\nexpression of the general will, or to give a law a claim upon the\nobedience of the subjects. This would have been to render effectual\nlegislation impossible. Upon the theory, however, of the foundation\nof legitimate sovereignty in consent, the theory that the natural\nright of the individual is violated unless he is himself a joint\nimponent of the law which he is called to obey, it is not easy to see\nwhat rightful claim there can be to the submission of a minority.\nRousseau so far recognises the difficulty that he requires unanimity\nin the original compact. (IV, ii.) If among those who are parties\nto it there are others who oppose it, the result is simply that\nthe latter are not included in it. 'They are strangers among the\ncitizens.' But this does not explain how they are to be rightfully\ncontrolled, on the principle that the only rightful control is\nfounded on consent; or, if they are not controlled, what is the\nvalue of the 'social compact.' How can the object of the pact be\nattained while those who are bound by it have these 'strangers'\nliving among them who are not bound by it, and who, not being bound\nby it, cannot be rightfully controlled? The difficulty must recur\nwith each generation of the descendants of those who were parties to\nthe original pact. The parties to the pact, it is true, have no right\nto resist the general will, because the pact is _ex hypothesi_ to the\neffect that each individual, in all things of common concern, will\ntake the general will for his own. The true form, therefore, of the\nquestion upon which each party to the pact should consider himself\nto be voting in the assembly is, as Rousseau puts it, not 'Is the\nproposed measure what I wish for, or what I approve, or no?' but 'Is\nit in conformity with the general will?' If, having voted upon this\nquestion, he finds himself in a minority, he is bound to suppose that\nhe is mistaken in his views of the general will, and to accept the\ndecision of the majority as the general will which, by the pact, he\nis bound to obey. So far all is consistent; though how the individual\nis to be answered if he pleads that the vote of the assembly has been\ntoo much biassed by particular interests to be an expression of the\ngeneral will, and that therefore it is not binding on him, does not\nappear.\n\n76. But after the first generation of those who were parties to\nthe supposed original compact, what is to settle whether anyone\nis a party to it or no? Rousseau faces the question, but his only\nanswer is that when once the state is instituted, consent is implied\nin residence; 'to dwell on the territory is to submit to the\nsovereignty.' (IV, ii.) This answer, however, will scarcely stand\nexamination. Rousseau himself does not consider that residence in\nthe same region with the original parties to the pact renders those\nso resident also parties to it. Why should it do so, when the pact\nhas descended to a later generation? It may be argued of course that\neveryone residing in a settled society, which secures him in his\nrights of person and property, has the benefit of the society from\nthe mere fact of his residence in it, and is therefore morally bound\nto accept its laws. But this is to abandon the doctrine of obligation\nbeing founded on consent. Residence in a territory governed by a\ncertain sovereign can only be taken to imply consent to the rule of\nthat sovereign, if there is any real possibility of relinquishing it,\nand this there can scarcely ever be.\n\n77. Rousseau certainly carried out the attempt to reconcile\nsubmission to government with the existence of natural rights\nantecedent to the institution of government, by the hypothesis of a\nfoundation of government in consent, more consistently than any other\nwriter; and his result shows the hopelessness of the attempt. To the\nconsistency of his theory he sacrifices every claim to right on the\npart of any state except one in which the whole body of citizens\ndirectly legislates, i.e. on the part of nearly all states then or\nnow existing; and finally he can only justify the control of the\nminority by the majority in any state whatever by a subterfuge. It\ndoes not follow, however, because the doctrine of natural rights and\nthe consequent conception of government as founded on compact are\nuntenable, that there is no truth in the conception of the state\nor sovereign as representing a general will, and as authorised or\nentitled to obedience on that account. It is this conception, as the\npermanently valuable thing in Rousseau, that we have now further to\nconsider.\n\n78. The first remark upon it which suggests itself is that, as\nRousseau puts the matter, there may be an independent political\nsociety in which there is no sovereign power at all, or in which, at\nany rate, it is not exercised. The sovereign is the general will.\nBut the general will can only be exercised through the assembly of\na whole people. The necessary conditions of its exercise, then,\nin Rousseau's time, were only fulfilled in the Swiss cantons and\n(perhaps) in the United Provinces. In England they were fulfilled in\na way during the time of a general election. But even where these\nconditions were fulfilled, it did not follow that the general will\nwas put in force. It might be overpowered, as in the Roman comitia,\nby particular interests. Is it then to be understood that, according\nto Rousseau, either there can be independent states without any\nsovereignty in actual exercise, or that the European states of his\ntime, and equally the great states of the present day (for in none\nof these is there any more exercise of the general will than in the\nEngland of his time), are not properly states at all?\n\n79. We may try to answer this question by distinguishing sovereign\n_de facto_ from sovereign _de jure_, and saying that what Rousseau\nmeant was that the general will, as defined by him and as exercised\nunder the conditions which he prescribes, was the only sovereign _de\njure_, but that he would have recognised in the ordinary states of\nhis time a sovereign _de facto_; and that in the same way, when he\ndescribes the institution of government as arising out of a twofold\nact consequent on the original pact (an act in which the sovereign\npeople first decides that there shall be a government, and then,\nnot as a sovereign people, but as a democratic magistracy, decides\nin what hands the government shall be placed), he does not conceive\nhimself to be describing what has actually taken place, but what is\nnecessary to give a government a moral title to obedience. Whether\nRousseau himself had this distinction in view is not always clear.\nAt the outset he states his object thus: 'Man is born free, and\neverywhere he is in fetters. How has this change come about? I do\nnot know. What can render it legitimate? That is a question which\nI deem myself able to answer.' (I, i.) The answer is the account\nof the establishment of a sovereign by social pact. It might be\ninferred from this that he considered himself in the sequel to be\ndelineating transactions to the actual occurrence of which he did\nnot commit himself, but which, if they did occur, would constitute\na duty as distinct from a physical necessity of submission on the\npart of subjects to a sovereign, and to which some equivalent must\nbe supposed, in the shape of a tacit present convention on the part\nof the members of a state, if their submission is to be matter of\nduty as distinct from physical necessity, or is to be explained as\na matter of right by the ostensible sovereign. This, however, would\nmerely be an inference as to his meaning. His actual procedure is to\ndescribe transactions, by which the sovereignty of the general will\nwas established, and by which it in turn established a government, as\nif they had actually taken place. Nor is he content with supposing a\ntacit consent of the people as rendering subjection legitimate. The\npeople whose submission to law is to be 'legitimate' must actually\ntake part in sovereign legislative assemblies. It is very rarely that\nhe uses language which implies the possibility of a sovereign power\notherwise constituted. He does indeed speak [1] of the possibility\nof a prince (in the special meaning of the term, as representing\nthe head of the executive) usurping sovereignty, and speaks of the\nsovereignty thus usurped as existing _de facto_, not _de jure_; but\nin no other connection (so far as I have observed) does he speak of\nanything short of the 'volont\u00e9 g\u00e9n\u00e9rale' exercised through the vote\nof an assembled people as sovereign at all. And the whole drift of\nhis doctrine is to show that no sovereign, otherwise constituted, had\nany claim on obedience. There was no state in Europe at his time in\nwhich his doctrine would not have justified rebellion, and even under\nexisting representative systems the conditions are not fulfilled\nwhich according to him are necessary to give laws the claim on our\nobedience which arises from their being an expression of the general\nwill. The only system under which these conditions could be fulfilled\nwould be one of federated self-governing communes, small enough to\nallow each member an active share in the legislation of the commune.\nIt is probably the influence of Rousseau that has made such a system\nthe ideal of political enthusiasts in France.\n\n[1] 'If it happened that the prince had a private will more active\nthan that of the sovereign, and that he made use of the public\nforce placed in his hands as the instrument of this private will,\nthere would result, so to speak, two sovereignties, one _de jure_,\nthe other _de facto_; but from that moment the social union would\ndisappear, and the body politic would be dissolved.' (III, i.) 'When\nthe prince ceases to administer the state according to the laws, and\nusurps the sovereign power ... then the state in the larger sense is\ndissolved, and there is formed another within it, composed only of\nthe members of the government ... the social pact is broken ... and\nall the ordinary citizens return as a matter of right to their state\nof natural liberty, and are merely forced, but not obliged, to obey.'\n(III, X.)\n\n    F. _SOVEREIGNTY AND THE GENERAL WILL._ Rousseau and Austin.\n\n80. The questions then arise (1) whether there is any truth in\nRousseau's conception of sovereignty as founded upon a 'volont\u00e9\ng\u00e9n\u00e9rale' in its application to actual sovereignty. Does anything\nlike such a sovereignty exist in the societies properly called\npolitical? (2) Is there any truth in speaking of a sovereignty _de\njure_ founded upon the 'volont\u00e9 g\u00e9n\u00e9rale? (3) If there is, are we to\nhold with Rousseau that this 'will' can only be exercised through the\nvotes of a sovereign people?\n\n81. (1) The first question is one which, if we take our notions\nof sovereignty from such writers as Austin, we shall be at first\ndisposed decidedly to negative. Austin is considered a master of\nprecise definition. We may begin, therefore, by looking to his\ndefinition of sovereignty and the terms connected with it. His\ngeneral definition of law runs as follows: 'A law, in the most\ngeneral and comprehensive acceptation in which the term, in its\nliteral meaning, is employed, may be said to be a rule laid down\nfor the guidance of an intelligent being by an intelligent being\nhaving power over him.' [1] These rules are of two kinds: (1) laws\nset by God to men, or the law of nature; and (2) laws set by men to\nmen, or human law. We are only concerned with the latter, the human\nlaws. These are again distinguished into two classes, according as\nthey are or are not established by political superiors. 'Of the laws\nor rules set by men to men, some are established by _political_\nsuperiors, sovereign and subject; by persons exercising supreme and\nsubordinate _government_, in independent nations, or independent\npolitical societies' (pp. 88 and 89). 'The aggregate of the rules\nestablished by political superiors is frequently styled _positive_\nlaw, or law existing _by position_' (p. 89). This is distinguished\nfrom 'positive morality.' Laws are further explained as a species of\ncommands. A command is a signification of desire, distinguished by\nthe fact that the party to whom it is addressed is liable to evil\nfrom the party expressing the desire in case he does not comply\nwith it (p. 91). This liability to evil forms the sanction of the\ncommand. Where a command 'obliges _generally_ to acts or forbearances\nof _a class_, it is a law' (p. 95). 'Every positive law, or every\nlaw simply and strictly so called, is set by a sovereign person or a\nsovereign body of persons to a member or members of the independent\npolitical society wherein that person or body is sovereign or\nsupreme. Or (changing the expression) it is set by a monarch, or\nsovereign member, to a person or persons in a state of subjection to\nits author. Even though it sprung directly from another fountain or\nsource, it is a positive law, or a law strictly so called, by the\ninstitution of that present sovereign in the character of political\nsuperior. Or (borrowing the language of Hobbes) the legislator is he,\nnot by whose authority the law was first made, but by whose authority\nit continues to be a law' (pp. 225 and 226).\n\n'The notions of sovereignty and independent political society may be\nexpressed concisely thus. If a _determinate_ human superior, _not_ in\na habit of obedience to a like superior, receive _habitual_ obedience\nfrom the _bulk_ of a given society, that determinate superior is\nsovereign in that society, and the society (including the superior)\nis a society political and independent' (p. 226).\n\n'In order that a given society may form a society political and\nindependent, the two distinguishing marks which I have mentioned\nabove must unite. The _generality_ of the given society must be in a\n_habit_ of obedience to a _determinate_ and _common_ superior; whilst\nthat determinate person, or determinate body of persons, must _not_\nbe habitually obedient to a determinate person or body. It is the\nunion of that positive with this negative mark which renders that\ncertain superior sovereign or supreme, and which renders that given\nsociety (including that certain superior) a society political and\nindependent' (p. 227).\n\n[1] _Lectures on Jurisprudence_, vol. i. p. 88 (edit. of 1869, in two\nvols.)\n\n82. It may be remarked in passing that, according to the above, while\nevery law implies a sovereign, from whom directly or indirectly\n(through a subordinate political superior) it proceeds, it is not\nnecessary to a sovereign that his commands should take the form of\nlaws, as opposed to 'particular or occasional commands.' A superior\nmight signify his desires only in the form of such particular and\noccasional commands, and yet there might be a habit of obedience to\nhim, and he might not be habitually obedient to any other person or\nbody; in which case he would be a 'sovereign.'\n\n83. Austin's doctrine seems diametrically opposite to one which\nfinds the sovereign in a 'volont\u00e9 g\u00e9n\u00e9rale,' because _(a)_ it only\nrecognises sovereignty in a _determinate_ person or persons, and\n_(b)_ it considers the essence of sovereignty to lie in the power, on\nthe part of such determinate persons, to put compulsion without limit\non subjects, to make them do exactly as it pleases. [1] The 'volont\u00e9\ng\u00e9n\u00e9rale,' on the other hand, it would seem, cannot be identified\nwith the will of any determinate person or persons; it can, indeed,\naccording to Rousseau, only be expressed by a vote of the whole body\nof subject citizens; but when you have got them together, there is\nno certainty that their vote does express it; and it does not--at\nany rate necessarily--command any power of compulsion, much less\nunlimited power. Rousseau expressly contemplates the possibility of\nthe executive power conflicting with and overbearing the general\nwill. Indeed, according to his view, it was the ordinary state\nof things; and though this view may be exaggerated, no one could\nmaintain that the 'general will,' in any intelligible sense of the\nwords, had always unlimited force at its command.\n\n[1] Cf. Maine's statement of Austin's doctrine in _The Early History\nof Institutions_, pp. 349 and 350: 'There is in every independent\npolitical community--that is, in every political community not in the\nhabit of obedience to a superior above itself--some single person or\nsome combination of persons which has the power of compelling the\nother members of the community to do exactly as it pleases. This\nsingle person or group--this individual or this collegiate sovereign\n(to employ Austin's phrase) may be found in every independent\npolitical community as certainly as the centre of gravity in a mass\nof matter. If the community be violently or voluntarily divided into\na number of separate fragments, then, as soon as each fragment has\nsettled down (perhaps after an interval of anarchy) into a state of\nequilibrium, the sovereign will exist, and with proper care will be\ndiscoverable in each of the now independent portions. The sovereignty\nover the North American colonies of Great Britain had its seat in\none place before they became the United States, in another place\nafterwards; but in both cases there was a discoverable sovereign\nsomewhere. This sovereign, this person or combination of persons,\nuniversally occurring in all independent political communities, has\nin all such communities one characteristic, common to all the shapes\nsovereignty may take, the possession of irresistible force, not\nnecessarily exerted, but capable of being exerted. According to the\nterminology preferred by Austin, the sovereign, if a single person,\nis or should be called a monarch; if a small group, the name is an\noligarchy; if a group of considerable dimensions, an aristocracy;\nif very large and numerous, a democracy. Limited monarchy, a phrase\nperhaps more fashionable in Austin's day than it is now, is abhorred\nby Austin, and the government of Great Britain he classes with\naristocracies. That which all the forms of sovereignty have in\ncommon is the power (the power but not necessarily the will) to put\ncompulsion without limit on subjects or fellow-subjects.'\n\n84. The two views thus seem mutually exclusive, but perhaps it may\nbe by taking each as complementary to the other that we shall gain\nthe truest view of sovereignty as it actually exists. In those\nstates of society in which obedience is habitually rendered by the\nbulk of society to some determinate superior, single or corporate,\nwho, in turn, is independent of any other superior, the obedience\nis so rendered because this determinate superior is regarded as\nexpressing or embodying what may properly be called the general\nwill, and is virtually conditional upon the fact that the superior\nis so regarded. It is by no means an unlimited power of compulsion\nthat the superior exercises, but one dependent in the long run, or\ndependent for the purpose of insuring an _habitual_ obedience, upon\nconformity to certain convictions on the part of the subjects as to\nwhat is for their general interest. As Maine says (_Early History\nof Institutions_, p. 359), 'the vast mass of influences, which we\nmay call for shortness moral, perpetually shapes, limits, or forbids\nthe actual direction of the forces of society by its sovereign.'\nThus, quite apart from any belief in the right of revolution, from\nthe view that the people in any state are entitled to an ultimate\nsovereignty, or are sovereign _de jure_, and may withdraw either\nlegislative or executive power from the hands in which it has been\nplaced in the event of its being misused, it may fairly be held that\nthe ostensible sovereign--the determinate person or persons to whom\nwe can point and say that with him or them lies the ultimate power of\nexacting habitual obedience from the people--is only able to exercise\nthis power in virtue of an assent on the part of the people, nor\nis this assent reducible to the fear of the sovereign felt by each\nindividual. It is rather a common desire for certain ends--specially\nthe 'pax vitaeque securitas'--to which the observance of law or\nestablished usage contributes, and in most cases implies no conscious\nreference on the part of those whom it influences to any supreme\ncoercive power at all. Thus when it has been ascertained in regard to\nany people that there is some determinate person or persons to whom,\nin the last resort, they pay habitual obedience, we may call this\nperson or persons sovereign if we please, but we must not ascribe to\nhim or them the real power which governs the actions and forbearances\nof the people, even those actions and forbearances (only a very\nsmall part) which are prescribed by the sovereign. This power is a\nmuch more complex and less determinate, or less easily determinable,\nthing; but a sense of possessing common interests, a desire for\ncommon objects on the part of the people, is always the condition of\nits existence. Let this sense or desire--which may properly be called\ngeneral will--cease to operate, or let it come into general conflict\nwith the sovereign's commands, and the habitual obedience will cease\nalso.\n\n85. If, then, those who adopt the Austinian definition of a sovereign\nmean no more than that in a thoroughly developed state there must be\nsome determinate person or persons, with whom, in the last resort,\nlies the recognised power of imposing laws and enforcing their\nobservance, over whom no legal control can be exercised, and that\neven in the most thorough democracy, where laws are passed in the\nassembly of the whole people, it is still with determinate persons,\nviz. a majority of those who meet in the assembly, that this power\nresides, they are doubtless right. So far they only need to be\nreminded that the thoroughly developed state, as characterised by\nthe existence of such definite sovereignty, is even among civilised\npeople but imperfectly established. It is perfectly established (1)\nwhere customary or 'common' or 'judge-made' law, which does not\nproceed from any determinate person or persons, is either superseded\nby express enactments that do proceed from such person or persons,\nor (as in England) is so frequently trenched upon by statute law\nthat it may fairly be said only to survive upon sufferance, or to be\nitself virtually enacted by the sovereign legislature; and (2) where\nno question of right can be raised between local legislatures or\nauthorities and the legislature claiming to be supreme, as in America\nbefore the war of secession, and as might perhaps be found to be the\ncase in Germany now, if on certain educational and ecclesiastical\nmatters the imperial legislature came to be at issue with the local\nlegislatures. But though the organisation of the state, even in\ncivilised and independent nations, is not everywhere complete, it\nno doubt involves the residence with determinate persons, or a body\nor bodies, of supreme i.e. legally uncontrolled power to make and\nenforce laws. The term 'sovereign' having acquired this definite\nmeaning, Rousseau was misleading his readers when he ascribed\nsovereignty to the general will. He could only be understood as\nmeaning, and in fact understood himself to mean, that there was no\nlegitimate sovereign except in the most thorough democracy, as just\ndescribed.\n\n86. But the Austinians, having found their sovereign, are apt to\nregard it as a much more important institution than--if it is to\nbe identified with a determinate person or persons--it really is;\nthey are apt to suppose that the sovereign, with the coercive power\n(i.e. the power of operating on the fears of the subjects) which\nit exercises, is the real determinant of the habitual obedience of\nthe people, at any rate of their habitual obedience in respect of\nthose acts and forbearances which are prescribed by law. But, as we\nhave seen, this is not the case. It then needs to be pointed out\nthat if the sovereign power is to be understood in this fuller, less\nabstract sense, if we mean by it the real determinant of the habitual\nobedience of the people, we must look for its sources much more\nwidely and deeply than the 'analytical jurists' do; that it can no\nlonger be said to reside in a determinate person or persons, but in\nthat impalpable congeries of the hopes and fears of a people, bound\ntogether by common interests and sympathy, which we call the general\nwill.\n\n87. It may be objected that this view of the general will, as that\non which habitual obedience to the sovereign really depends, is at\nbest only applicable to 'self-governing' communities, not to those\nunder a despotic sovereign. The answer is that it is applicable in\nall forms of society where a sovereign in the sense above defined\n(as a determinate person or persons with whom in the last resort\nlies the recognised power of imposing laws and enforcing their\nobservance) really exists, but that there are many where there cannot\nfairly be said to be any such sovereign at all; in other words, that\nin all organised communities the power which practically commands\nthe habitual obedience of the people in respect of those acts and\nforbearances which are enjoined by law or authoritative custom, is\none dependent on the general will of the community, but this power is\noften not sovereign in the sense in which the ruler of an independent\nstate is sovereign. It may very well be that there is at the same\ntime another power merely coercive, a power really operating on\npeople simply through their fears, to which obedience is rendered,\nand which is not in turn representative of a general will; but where\nthis is the case we shall find that such power is only in contact\nwith the people, so to speak, at one or two points; that their\nactions and forbearances, as determined by law and custom, are in the\nmain independent of it; that it cannot in any proper sense be said\nto be a sovereign power over them; at any rate, not in the sense in\nwhich we speak of King, Lords, and Commons as sovereign in England.\n\n88. Maine has pointed out (_Early History of Institutions_, Lecture\nXIII.) that the great despotic empires of ancient times, excluding\nthe Roman, of which more shall be said directly, and modern empires\nin the East were in the main tax-collecting institutions. They\nexercise coercive force over their subjects of the most violent kind\nfor certain purposes at certain times, but they do not impose laws\nas distinct from 'particular and occasional commands' nor do they\njudicially administer or enforce a customary law. In a certain sense\nthe subjects render them habitual obedience, i.e. they habitually\nsubmit when the agents of the empire descend on them for taxes and\nrecruits, but in the general tenor of their lives their actions and\nforbearances are regulated by authorities with which the empire\nnever interferes,--with which probably it could not interfere\nwithout destroying itself. These authorities can scarcely be said\nto reside in a determinate person or persons at all, but, so far as\nthey do so, they reside mixedly in priests or exponents of customary\nreligion, in heads of families acting within the family, and in some\nvillage-council acting beyond the limits of the family. Whether, in\nsuch a state of things, we are to consider that there is a sovereign\npower at all, and, if so, where it is to be considered to reside,\nare chiefly questions of words. If complete uncontrolledness by a\nstronger power is essential to sovereignty, the local authorities\njust spoken of are not sovereign. The conquering despot could descend\non them and sweep them away, leaving anarchy in their place, and he\ndoes compel them to be put in exercise for a particular purpose,\nthat of raising tribute or sometimes recruits. On the other hand,\nthese authorities, which represent a general will of the communities,\nform the power which determines such actions and forbearances of the\nindividual as do not proceed from natural inclination. The military\nruler, indeed, is sovereign in the sense of possessing irresistible\ncoercive power, but in fact this power is only exercised within\nnarrow limits, and not at all in any legislative or judicial way. If\nexercised beyond these limits and in conflict with customary law,\nthe result would be a general anarchy. The truest way of expressing\nthe state of the case is to say that, taking the term 'sovereign' in\nthe sense which we naturally associate with it, and in which it is\nused by modern European writers on sovereignty, there is under such\nconditions no sovereign, but that the practical regulation of life,\nexcept during intervals of military violence and anarchy, rests with\nauthorities representing the general will, though these are to a\ncertain extent interfered with by an alien force.\n\n89. The same account is applicable to most cases of foreign\ndominion over a people with any organised common life of their own.\nThe foreign power is not sovereign in the sense of being a maker\nor maintainer of laws. Law-making, under such conditions, there\nis properly none. The subject people inherits laws, written or\nunwritten, and maintains them for itself, a certain shelter from\nviolence being afforded by the foreign power. Such, in the main,\nwas the condition of North Italy, for instance, under Austrian\ndomination. Where this is the case, the removal of the coercive\npower of the foreigner need not involve anarchy, or any violation of\nestablished rights (such as Hobbes supposes to follow necessarily\nfrom the deposition of an actual sovereign). The social order does\nnot depend on the foreign dominion, and may survive it. The question\nwhether in any particular case it actually can do so must depend on\nthe possibility of preventing further foreign aggression, and on the\nquestion whether there is enough national unity in the subject people\nto prevent them from breaking up into hostile communities when the\nforeign dominion is removed.\n\n90. It is otherwise where the foreign power is really a law-making\nand law-maintaining one, and is sovereign in that proper sense, as\nwas the Roman Empire. But just so far as the Roman Empire was of\nthis sovereign, i.e. law-making and law-maintaining, character, it\nderived its permanence, its hold on the 'habitual obedience' of\nits subjects, from the support of the general will. As the empire\nsuperseded customary or written laws of conquered countries, it\nconferred rights of Roman citizenship, a much more perfect system of\nprotection in action and acquisition than the conquered people had\ngenerally possessed before. Hence, while nothing could be further\nremoved from what Rousseau would have counted liberty than the\nlife of the citizens of the Roman Empire, for they had nothing to\ndo with making the laws which they obeyed, yet probably there was\nnever anv political system more firmly grounded on the good-will of\nthe subjects, none in the maintenance of which the subjects felt a\nstronger interest. The British power in India exercises a middle\nfunction between that of the Roman Empire and that of the mere\ntax-collecting and recruit-raising empire with which the Roman Empire\nhas just been contrasted. It presents itself to the subject people\nin the first place as a tax-collector. It leaves the customary law\nof the people mostly untouched. But if only to a very small extent\na law-making power, it is emphatically a law-maintaining one. It\nregulates the whole judicial administration of the country, but\napplies its power generally only to enforce the customary law which\nit finds in existence. For this reason an 'habitual obedience' may\nfairly be said to be rendered by the Indian people to the English\ngovernment, in a sense in which it could not be said to be rendered\nto a merely tax-collecting military power; but the 'habitual\nobedience' is so rendered only because the English government\npresents itself to the people, not merely as a tax-collector, but\nas the maintainer of a customary law, which, on the whole, is the\nexpression of the general will. The same is true in principle of\nthose independent states which are despotically governed, in which,\ni.e., the ultimate legislative power does not reside, wholly or in\npart, with an assembly representing the people, or with the people\nthemselves; e.g. Russia. It is not the absolute coercive power of\nthe Czar which determines the habitual obedience of the people. This\ncoercive power, if put to the test as a _coercive_ power, would\nprobably be found very far from absolute. The habitual obedience\nis determined by a system of law, chiefly customary, which the\nadministration controlled by the Czar enforces against individuals,\nbut which corresponds to the general sense of what is equitable and\nnecessary. If a despotic government comes into anything like habitual\nconflict with the unwritten law which represents the general will,\nits dissolution is beginning.\n\n91. The answer, then, to the question whether there is any truth\nin Rousseau's conception of sovereignty as founded upon a 'volont\u00e9\ng\u00e9n\u00e9rale,' in its application to actual sovereignty, must depend on\nwhat we mean by 'sovereign.' The essential thing in political society\nis a power which guarantees men rights, i.e. a certain freedom of\naction and acquisition conditionally upon their allowing a like\nfreedom in others. It is but stating the same condition otherwise\nto speak of a power which guarantees the members of the society\nthese rights, this freedom of action and acquisition, impartially\nor according to a general will or law. What is the lowest form in\nwhich a society is fit to be called political, is hard to say. The\npolitical society is more complete as the freedom guaranteed is more\ncomplete, both in respect of the persons enjoying it and of the range\nof possible action and acquisition over which it extends. A family\nor a nomad horde could not be called a political society, on account\nof the narrow range of the political freedom which they severally\nguarantee. The nomad horde might indeed be quite as numerous as a\nGreek state, or as the sovereign canton of Geneva in Rousseau's\ntime; but in the horde the range within which reciprocal freedom of\naction and acquisition is guaranteed to the individual is exceedingly\nsmall. It is the power of guaranteeing rights, defined as above,\nwhich the old writers on sovereignty and civil government supposed to\nbe established by covenant of all with all, translating the common\ninterest which men have in the maintenance of such a power into an\nimaginary historical act by which they instituted it. It was this\npower that they had chiefly in view when they spoke of sovereignty.\n\n92. It is to be observed, however, that the power may very well exist\nand serve its purpose where it is not sovereign in the sense of being\nexempt from any liability of being interfered with by a stronger\ncoercive power, such as that of a tax-collecting military ruler. The\noccasional interference of the military ruler is so far a drawback\nto the efficiency with which freedom of action and acquisition is\nguaranteed, but does not nullify the general maintenance of rights.\nOn the other hand, when the power by which rights are guaranteed is\nsovereign (as it is desirable that it should be) in the special sense\nof being maintained by a person or persons, and wielding coercive\nforce not liable to control by any other human force, it is not\nthis coercive force that is the important thing about it, or that\ndetermines the habitual obedience essential to the real maintenance\nof rights. That which determines this habitual obedience is a power\nresiding in the common will and reason of men, i.e. in the will and\nreason of men as determined by social relations, as interested in\neach other, as acting together for common ends. It is a power which\nthis universal rational will exercises over the inclinations of\nthe individual, and which only needs exceptionally to be backed by\ncoercive force.\n\n93. Thus, though it may be misleading to speak of the general will\nas anywhere either actually or properly sovereign, because the term\n'sovereign' is best kept to the ordinary usage in which it signifies\na determinate person or persons charged with the supreme coercive\nfunction of the state, and the general will does not admit of being\nvested in a person or persons, yet it is true that the institutions\nof political society--those by which equal rights are guaranteed to\nmembers of such a society--are an expression of, and are maintained\nby, a general will. The sovereign should be regarded, not in\nabstraction as the wielder of coercive force, but in connection with\nthe whole complex of institutions of political society. It is as\ntheir sustainer, and thus as the agent of the general will, that the\nsovereign power must be presented to the minds of the people if it\nis to command habitual loyal obedience; and obedience will scarcely\nbe habitual unless it is loyal, not forced. If once the coercive\npower, which must always be an incident of sovereignty, becomes the\ncharacteristic thing about it in its relation to the people governed,\nthis must indicate one of two things; either that the general\ninterest in the maintenance of equal rights has lost its hold on\nthe people, or that the sovereign no longer adequately fulfils its\nfunction of maintaining such rights, and thus has lost the support\nderived from the general sense of interest in supporting it. It may\nbe doubted whether the former is ever really the case; but whatever\nexplanation of the case may be the true one, it is certain that when\nthe idea of coercive force is that predominantly associated with\nthe law-imposing and law-enforcing power, then either a disruption\nof the state or a change in the sources of sovereignty must sooner\nor later take place. In judging, however, whether this is the case,\nwe must not be misled by words. In England, e.g., from the way in\nwhich many people speak of 'government,' we might suppose that it\nwas looked on mainly as the wielder of coercive force; but it would\nbe a mistake on that account to suppose that English people commonly\nregard the laws of the country as so much coercion, instead of as an\ninstitution in the maintenance of which they are interested. When\nthey speak disapprovingly of 'government,' they are not thinking of\nthe general system of law, but of a central administrative agency,\nwhich they think interferes mischievously with local and customary\nadministration.\n\n94. It is more true, then, to say that law, as the system of rules\nby which rights are maintained, is the expression of a general will\nthan that the general will is the sovereign. The sovereign, being\na person or persons by whom in the last resort laws are imposed\nand enforced, in the long run and on the whole is an agent of the\ngeneral will, contributes to realise that will. Particular laws may,\nno doubt, be imposed and enforced by the sovereign, which conflict\nwith the general will; not in the sense that if all the subject\npeople could be got together to vote upon them, a majority would\nvote against them,--that might be or might not be,--but in the sense\nthat they tend to thwart those powers of action, acquisition, and\nself-development on the part of the members of the society, which\nthere is always a general desire to extend (though the desire may\nnot be enlightened as to the best means to the end), and which it is\nthe business of the law to sustain and extend. The extent to which\nlaws of this kind may be intruded into the general 'corpus juris'\nwithout social disruption it is impossible to specify. Probably\nthere has never been a civilised state in which they bore more than\na very small proportion to the amount of law which there was the\nstrongest general interest in maintaining. But, so far as they go,\nthey always tend to lessen the 'habitual obedience' of the people,\nand thus to make the sovereign cease to be sovereign. The hope must\nbe that this will result in the transfer of sovereignty to other\nhands before a social disruption ensues; before the general system\nof law has been so far perverted as to lose its hold on the people.\nOf the possibility of a change in sovereignty without any detraction\nfrom the law-abiding habits of the people, France has lately given\na conspicuous example. Here, however, it must be remembered that a\ntemporary foreign conquest made the transition easier.\n\n95. (2) After what has been said, we need not dwell long on the\nsecond question raised [1] concerning Rousseau's theory: Is there\nany truth in speaking of a sovereignty 'de jure' founded upon the\n'volont\u00e9 g\u00e9n\u00e9rale'? It is a distinction which can only be maintained\nso long as either 'sovereign' is not used in a determinate sense, or\nby 'jus' is understood something else than law or right established\nby law. If by 'sovereign' we understand something short of a person\nor persons holding the supreme law-making and law-enforcing power,\ne.g. an English king who is often called sovereign, we might say\nthat sovereignty was exercised 'de facto' but not 'de jure' when\nthe power of such a 'sovereign' was in conflict with, or was not\nsanctioned by, the law as declared and enforced by the really supreme\npower. Thus an English king, so far as he affected to control the\narmy or raise money without the co-operation of Parliament, might be\nsaid to be sovereign 'de facto' but not 'de jure'; only, however,\non the supposition that the supreme law-making and law-enforcing\npower does not belong to him, and thus that he is called 'sovereign'\nin other than the strict sense. If he were sovereign in the full\nsense 'de facto,' he could not fail to be so 'de jure,' i.e.\nlegally. In such a state of things, if the antagonism between king\nand parliament continued for any length of time, it would have to\nbe admitted that there was no sovereign in the sense of a supreme\nlaw-making and law-enforcing power; that sovereignty in this sense\nwas in abeyance, and that anarchy prevailed. Or the same thing might\nbe explained by saying that sovereignty still resided 'de jure'\nwith the king and parliament, though not 'de facto' exercised by\nthem; but if we use such language, we must bear in mind that we are\nqualifying 'sovereignty' by an epithet which neutralises its meaning\nas an actually supreme power. If, however, the king succeeded in\nestablishing such a power on a permanent footing, he would have\nbecome sovereign in the full sense, and there would be no ground\nfor saying, as before, that he was not sovereign 'de jure'; for the\nqualifications 'de jure' and 'not de jure,' in that sense in which\nthey might be applied to a power which is not supreme, are equally\ninapplicable to the power of making and enforcing law which is\nsupreme. The monarch's newly established supremacy may be in conflict\nwith laws that were previously in force, but he has only to abolish\nthose laws in order to render it legal. If, then, it is still to\nbe said to be not 'de jure,' it must be because 'jus' is used for\nsomething else than law or right established by law; viz. either\nfor 'natural right' (if we admit that there is such a thing), and\n'natural right' as not merely = natural power; or for certain claims\nwhich the members of the subject community have come to recognise as\ninherent in the community and in themselves as members of it, claims\nregarded as the foundation of law, not as founded upon it, and with\nwhich the commands of the sovereign conflict. But even according to\nthis meaning of 'jus,' a sovereign in the strict Austinian sense,\nthat is not so 'de jure,' is in the long run an impossibility.\n'Habitual obedience' cannot be secured in the face of such claims.\n\n[1] [Above, sec. 80. RLN]\n\n96. But whether or no in any qualified sense of 'sovereign' or 'jus,'\na sovereign that is not so 'de jure' is possible, once understand\nby 'sovereign' the determinate person or persons with whom the\nultimate law-imposing and law-enforcing power resides, and by 'jus'\nlaw, it is then obviously a contradiction to speak of a sovereign\n'de jure' as distinguished from one 'de facto.' The power of the\nultimate imponent of law cannot be derived from, or limited by, law.\nThe sovereign may no doubt by a legislative act of its own lay down\nrules as to the mode in which its power shall be exercised, but if\nit is sovereign in the sense supposed, it must always be open to it\nto alter these rules. There can be no illegality in its doing so.\nIn short, in whatever sense 'jus' is derived from the sovereign, in\nthat sense no sovereign can hold his power 'de jure.' So Spinoza held\nthat 'imperium' was 'de jure' indeed, but 'de jure naturali' ('jus\nnaturale' = natural power), which is the same as 'de jure divino';\nonly powers exercised in subordination to 'imperium' are 'de jure\ncivili.' So Hobbes said that there could be no 'unjust law.' A law\nwas not a law unless enacted by a sovereign, and 'the just' being\nthat to which the sovereign obliges, the sovereign could not enact\nthe unjust, though it might enact the inequitable and the pernicious,\nthe 'inequitable' presumably meaning that which conflicts with a law\nof nature, the 'pernicious' that which tends to weaken individuals\nor society. Rousseau retains the same notion of the impeccability of\nthe sovereign, but on different grounds. Every act of the sovereign\nis according to him 'de jure,' not because all right is derived from\na supreme coercive power and the sovereign is that power, but because\nthe sovereign is the general will, which is necessarily a will for\nthe good of all. The enactment of the sovereign could as little, on\nthis view, be 'inequitable' or 'pernicious' as it could be 'unjust.'\nBut this view necessitates a distinction between the sovereign, thus\nconceived, and the actually supreme power of making and enforcing\nlaw as it exists anywhere but in what Rousseau considered a perfect\nstate. Rousseau indeed generally avoids calling this actually supreme\npower 'sovereign,' though he cannot, as we have seen, altogether\navoid it; and since, whatever he liked to call it, the existence\nof such a power in forms which according to him prevented its\nequivalence to the general will was almost everywhere a fact, his\nreaders would naturally come to think of the actually supreme power\nas sovereign 'de facto,' in distinction from something else which was\nsovereign 'de jure.' And further, under the influence of Rousseau's\nview that the only organ of the general will was an assembly of\nthe whole people, they would naturally regard such an assembly as\nsovereign 'de jure,' and any other power actually supreme as merely\nsovereign 'de facto.' This opposition, however, really arises out of\na confusion in the usage of the term 'sovereign'; out of inability\non the one side to hold fast the identification of sovereign with\ngeneral will, on the other to keep it simply to the sense of the\nsupreme law-making and law-enforcing power. If 'sovereign' = 'general\nwill,' the distinction of 'de facto' and 'de jure' is inapplicable\nto it. A certain desire either is or is not the general will. A\ncertain interest is or is not an interest in the common good. There\nis no sense in saying that such desire or interest is general will\n'de jure' but not 'de facto,' or _vice versa_. On the other hand, if\n'sovereign' = the supreme law-making and law-enforcing power, the\ndistinction is equally inapplicable to it. If any person or persons\nhave this power at all, they cannot be said to have it merely 'de\nfacto' while others have it 'de jure.'\n\n97. It may be urged with much truth that the actual possession of\nsuch power by a determinate person or persons is rather a convenient\nhypothesis of writers on jurisprudence than an actual fact; and, as\nwe have seen, the actual condition of things at certain times in\ncertain states may conveniently be expressed by saying that there was\na sovereign 'de facto' that was not so 'de jure,' or vice versa; but\nonly on the supposition that 'sovereign' is not taken necessarily\nin the full sense of a supreme law-making and law-enforcing power.\nIn a state of things that can be so described, however, there is no\n'sovereignty' at all in the sense of an actually supreme power of\nmaking and enforcing law resident in a determinate person or persons.\nSovereignty in this sense can only exist 'de facto'; and when it so\nexists, it is obvious that no other can in the same sense exist 'de\njure.' It may be denied indeed in particular cases that an actually\nsupreme power of making and enforcing law is exercised 'de jure,' in\na sense of that phrase already explained (see section 95). Reasons\nwere given for doubting whether a power could really maintain its\nsovereign attributes if conflicting with 'jus,' in the sense thus\nexplained. But supposing that it could, the fact that it was not\nexercised 'de jure' would not entitle us to say that any other person\nor persons were sovereign 'de jure,' without altering the meaning of\n'sovereign.' If any one has supreme power 'de facto,' that which any\none else has cannot be supreme power. The qualification of a power as\nheld not 'de facto' but 'de jure' is one which destroys its character\nas supreme, i.e. as sovereign in the sense before us.\n\n98. It is only through trying to combine under the term 'sovereign'\nthe notions of the general will and of supreme power that we are led\nto speak of the people as sovereign 'de jure,' if not 'de facto.'\nThere would be no harm indeed in speaking of the general will as\nsovereign, if the natural association of 'sovereign' with supreme\ncoercive power could be got rid of; but as this cannot be, when once\nwe have pronounced the general will 'sovereign,' we are pretty sure\nto identify the general will with a vote of the majority of citizens.\nA majority of citizens can be conceived as exercising a supreme\ncoercive power, but a general will, in the sense of an unselfish\ninterest in the common good which in various degrees actuates men in\ntheir dealings with each other, cannot be so conceived. Thus for the\nsovereignty, in an impalpable and unnatural sense, of the general\nwill, we get a sovereignty, in the natural and demonstrable sense, of\nthe multitude. But as the multitude is not everywhere supreme, the\nassertion of its sovereignty has to be put in the form that it is\nsovereign 'de jure.' The truth which underlies this proposition is\nthat an interest in common good is the ground of political society,\nin the sense that without it no body of people would recognise any\nauthority as having a claim on their common obedience. It is so far\nas a government represents to them a common good that the subjects\nare conscious that they ought to obey it, i.e. that obedience to it\nis a means to an end desirable in itself or absolutely. This truth\nis latent in Rousseau's doctrine of the sovereignty of the general\nwill, but he confounds with it the proposition that no government has\na claim on obedience, but that which originates in a vote passed by\nthe people themselves who are called on to obey (a vote which must\nbe unanimous in the case of the original compact, and carried by a\nmajority in subsequent cases).\n\n99. This latter doctrine arises out of the delusion of natural right.\nThe individual, it is thought, having a right, not derived from\nsociety, to do as he likes, can only forego that right by an act to\nwhich he is a party. Therefore he has a right to disregard a law\nunless it is passed by an assembly of which he has been a member,\nand by the decision of which he has expressly or tacitly agreed to\nbe bound. Clearly, however, such a natural right of the individual\nwould be violated under most popular sovereignties no less than under\none purely monarchical, if he happened to object to the decision of\nthe majority; for to say, as Rousseau says, that he has virtually\nagreed, by the mere fact of residence in a certain territory, to be\nbound by the votes of the majority of those occupying that territory,\nis a mere trick to save appearances. But in truth there is no such\nnatural right to do as one likes irrespectively of society. It is on\nthe relation to a society, to other men recognising a common good,\nthat the individual's rights depend, as much as the gravity of a body\ndepends on relations to other bodies. A right is a power claimed and\nrecognised as contributory to a common good. A right against society,\nin distinction from a right to be treated as a member of society, is\na contradiction in terms. No one, therefore, has a right to resist a\nlaw or ordinance of government, on the ground that it requires him\nto do what he does not like, and that he has not agreed to submit\nto the authority from which it proceeds; and if no one person has\nsuch a right, no number of persons have it. If the common interest\nrequires it, no right can be alleged against it. Neither can its\nenactment by popular vote enhance, nor the absence of such vote\ndiminish, its right to be obeyed. Rousseau himself well says that\nthe proper question for each citizen to ask himself in regard to any\nproposal before the assembly is not, Do I like or approve it? but,\nIs it according to the general will? which is only another way of\nasking, Is it according to the general interest? It is only as the\norgan of this general interest that the popular vote can endow any\nlaw with the right to be obeyed; and Rousseau himself, if he could\nhave freed himself from the presuppositions of natural right, might\nhave admitted that, as the popular vote is by no means necessarily\nan organ of the general interest, so the decree of a monarch or of\nan aristocratic assembly, under certain conditions, might be such an\norgan.\n\n100. But it may be asked, Must not the individual judge for himself\nwhether a law is for the common good? and if he decides that it is\nnot, is he not entitled to resist it? Otherwise, not only will laws\npassed in the interest of individuals or classes, and against the\npublic good, have a claim to our absolute and permanent submission,\nbut a government systematically carried on for the benefit of a few\nagainst the many can never be rightfully resisted. To the first\npart of this question we must of course answer 'yes,' without\nqualification. The degree to which the individual judges for himself\nof the relation between the common good and the laws which cross\nthe path of his ordinary life, is the measure of his intelligent,\nas distinguished from a merely instinctive, recognition of rights\nin others and in the state; and on this recognition again depends\nhis practical understanding of the difference between mere powers\nand rights as recognised by himself. Supposing then the individual\nto have decided that some command of a 'political superior' is not\nfor the common good, how ought he to act in regard to it? In a\ncountry like ours, with a popular government and settled methods of\nenacting and repealing laws, the answer of common sense is simple\nand sufficient. He should do all he can by legal methods to get the\ncommand cancelled, but till it is cancelled he should conform to it.\nThe common good must suffer more from resistance to a law or to the\nordinance of a legal authority, than from the individual's conformity\nto a particular law or ordinance that is bad, until its repeal can be\nobtained. It is thus the social duty of the individual to conform,\nand he can have no right, as we have seen, that is against his social\nduty; no right to anything or to do anything that is not involved in\nthe ability to do his duty.\n\n101. But difficulties arise when either (I) it is a case of disputed\nsovereignty, and in consequence the legal authority of the supposed\ncommand is doubtful; or (2) when the government is so conducted\nthat there are no legal means of obtaining the repeal of a law; or\n(3) when the whole system of a law and government is so perverted\nby private interests hostile to the public that there has ceased to\nbe any common interest in maintaining it; or (4),--a more frequent\ncase,--when the authority from which the objectionable command\nproceeds is so easily separable from that on which the maintenance of\nsocial order and the fabric of settled rights depends, that it can be\nresisted without serious detriment to this order and fabric. In such\ncases, may there not be a right of resistance based on a 'higher law'\nthan the command of the ostensible sovereign?\n\n102. (1) As to cases where the legal authority of the supposed\ncommand is doubtful. In modern states the definition of\nsovereignty,--the determination of the person or persons with whom\nthe supreme power of making and enforcing law legally resides,--has\nonly been arrived at by a slow process. The European monarchies have\nmostly arisen out of the gradual conversion of feudal superiority\ninto sovereignty in the strict sense. Great states, such as Germany\nand Italy, have been formed by the combination of independent or\nsemi-dependent states. In England the unity of the state goes back\nmuch further than anywhere else, but in England it was but gradually\nthat the residence of sovereignty jointly in king, lords, and commons\ncame to be practically established, and it is still founded merely on\na customary law. In the United States, with a written constitution,\nit required all Austin's subtlety to detect where sovereignty lay,\nand he places it where probably no ordinary citizen of the United\nStates had ever thought of it as residing, viz. 'in the states'\ngovernments as forming one aggregate body: meaning by a state's\ngovernment, not its ordinary legislature, but the body of citizens\nwhich appoints its ordinary legislature, and which, the union apart,\nis properly sovereign therein.' He bases this view on the provision\nin the constitution, according to which amendments to it are only\nvalid 'when ratified by the legislature in three-fourths of the\nseveral states, or by convention in three-fourths thereof.' (I, p.\n268.) But no ordinary citizen of the United States probably ever\nthought of sovereignty except as residing either in the government\nof his state or in the federal government consisting of congress and\npresident, or sometimes in one way, sometimes in the other. In other\ncountries, e.g. France, where since Louis XIV the quarter in which\nsovereignty resides has at any given time been easily assignable,\nthere have since the revolution been such frequent changes in the\nostensible sovereign that there might almost at any time have been a\ncase for doubting whether the ostensible sovereign had such command\nover the habitual obedience of the people as to be a sovereign in\nthat sense in which there is a social duty to obey the sovereign, as\nthe representative of the common interest in social order; whether\nsome prior sovereignty was not really still in force. For these\nvarious reasons there have been occasions in the history of all\nmodern states at which men, or bodies of men, without the conscious\nassertion of any right not founded upon law, might naturally deem\nthemselves entitled to resist an authority which on its part claimed\na right--a legally established power--to enforce obedience, and\nturned out actually to possess the power of doing so.\n\n103. In such cases the truest retrospective account to be given\nof the matter will often be, that at the time there was nothing\namounting to a right on either side. A right is a power of which the\nexercise by the individual or by some body of men is recognised by\na society, either as itself directly essential to a common good, or\nas conferred by an authority of which the maintenance is recognised\nas so essential. But in cases of the kind described the authorities,\nappealed to on each side as justifying respectively compulsion and\nresistance, often do not command a sufficiently general recognition\nof their being necessary to the common good to enable them to confer\nrights of compulsion or resistance. One or other of them may be\ncoming to do so, or ceasing to do so, but rights, though on the one\nhand they are eternal or at least coeval with human society, on the\nother hand take time to form themselves in this or that particular\nsubject and to transfer themselves from one subject to another; (just\nas one may hold reason to be eternal, and yet hold that it takes\ntime for this or that being to become rational.) Hence in periods\nof conflict between local or customary and imperial or written law,\nbetween the constituent powers of a sovereignty, such as king and\nparliament in England, of which the relation to each other has not\nbecome accurately defined, between a falling and a rising sovereign\nin a period of revolution, between federal and state authorities in\na composite state, the facts are best represented by saying that\nfor a time there may be no right on either side in the conflict,\nand that it is impossible to determine precisely the stage at which\nthere comes to be such a right on the one side as implies a definite\nresistance to right on the other. This of course is not to be taken\nto mean that in such periods rights in general are at an end. It is\nmerely that right is in suspense on the particular point at issue\nbetween the conflicting powers. As we have seen, the general fabric\nof rights in any society does not depend on the existence of a\ndefinite and ascertained sovereignty, in the restricted sense of the\nwords; on the determination of a person or persons in whom supreme\npower resides; but on the control of the conduct of men according to\ncertain regular principles by a society recognising common interests;\nand though such control may be more or less weakened during periods\nof conflict of the kind supposed, it never ceases.\n\n104. It does not follow, however, because there may often not be\nstrictly a right on either side in such periods of conflict, that\nthere is not a good and an evil, a better and a worse, on one side\nor the other. Of this we can only judge by reference to the end,\nwhatever it be, in which we conceive the good of man to consist.\nThere may be clear ground for saying, in regard to any conflict,\nthat one side rather than the other _ought_ to have been taken, not\nbecause those on one side were, those on the other were not, entitled\nto say that they had a right to act as they did, but because the\ncommon good of a nation or mankind was clearly promoted by one line\nof action, not by the other. E.g. in the American war of secession,\nthough it would be difficult to say that a man had not as much a\nright to fight for his seceding state as for the Union, yet as the\nspecial interest of the seceding states was that of maintaining\nslavery, there was reason for holding that the side of the Union, not\nthat of the seceding states, was the one which ought to be taken. On\nthe other hand, it does not follow that in a struggle for sovereignty\nthe good of man is more served by one of the competing powers than\nby the other. Good may come out of the conflict without one power\ncontributing more to it than the other. There may thus be as little\nground retrospectively for saying that one side or the other ought\nto have been taken, as that men had a right to take one and not\nthe other. At the same time, as regards the individual, there is\nno reason for doubting that the better the motive which determines\nhim to take this side or that, the more he is actuated in doing so\nby some unselfish desire for human good, the more free he is from\negotism, and that conceit or opinionatedness which is a form of\negotism, the more good he will do whichever side he adopts.\n\n105. It is in such cases as we have been considering that the\ndistinction between sovereign 'de facto' and sovereign 'de jure'\narises. It has a natural meaning in the mouths of those who, in\nresisting some coercive power that claims their obedience, can point\nto another determinate authority to which they not only consider\nobedience due, but to which such obedience in some considerable\nmeasure is actually rendered; a meaning which it has not when all\nthat can be opposed to sovereign 'de facto' is either a 'general\nwill,' or the mere name of a fallen dynasty exercising no control\nover men in their dealings with each other. But where this opposition\ncan be used with a natural meaning, it is a truer account of the\nmatter (as we have seen) to say that sovereignty is in abeyance. The\nexistence of competing powers, each affecting to control men in the\nsame region of outward action, and each having partisans who regard\nit alone as entitled to exercise such control, implies that there is\nnot that unity of supreme control over the outward actions of men\nwhich constitutes sovereignty and which is necessary to the complete\norganisation of a state. The state has either not reached complete\norganisation, or is for the time disorganised, the disorganisation\nbeing more or less serious according to the degree to which the\neveryday rights of men (their ordinary freedom of action and\nacquisition) are interfered with by this want of unity in the supreme\ncontrol.\n\n106. In such a state of things, the citizen has no rule of 'right'\n(in the strict sense of the word) to guide him. He is pretty sure\nto think that one or other of the competing powers has a right to\nhis obedience because, being himself interested (not necessarily\nselfishly interested) in its support, he does not take account of its\nlacking that general recognition as a power necessary to the common\ngood which is requisite in order to give it a right. But we looking\nback may see that there was no such right. Was there then nothing to\ndirect him either way? Simply, I should answer, the general rule of\nlooking to the moral good of mankind, to which a necessary means is\nthe organisation of the state, which again requires unity of supreme\ncontrol, in the common interest, over the outward actions of men.\nThe citizen ought to have resisted or obeyed either of the competing\nauthorities, according as by doing so he contributed most to the\norganisation of the state in the sense explained. It must be admitted\nthat without more knowledge and foresight than the individual can be\nexpected to possess, this rule, if he had recognised it, could have\nafforded him no sure guidance; but this is only to say that there are\ntimes of political difficulty in which the line of conduct adopted\nmay have the most important effect, but in which it is very hard to\nknow what is the proper line to take. On the other side must be set\nthe consideration that the man who brings with him the character most\nfree from egotism to the decision even of those questions of conduct,\nas to which established rules of right and wrong are of no avail, is\nmost sure on the whole to take the line which yields the best results.\n\n107. We come next to the question of the possible duty of resistance\nin cases where no law, acknowledged or half-acknowledged,\nwritten or customary, can be appealed to against a command\n(general or particular) contrary to the public good; where no\ncounter-sovereignty, in the natural sense of the words, can be\nalleged against that of the imponent of the law; and where at the\nsame time, from the people having no share, direct or indirect, in\nthe government, there is no means of obtaining a repeal of the law\nby legal means. I say the 'duty' of resistance because, from the\npoint of view here adopted, there can be no 'right,' unless on the\nground that it is for the common good, and if so, there is a duty. In\nwritings of the seventeenth and eighteenth centuries, starting with\nthe assumption of natural rights, the question was never put on its\nproper footing. It was not asked, When, for the sake of the common\ngood, the citizen ought to resist the sovereign? but, What sort of\ninjury to person or property gave him a natural right to resist? Now\nthere is sense in inquiring upon what sort and amount of provocation\nfrom government individuals inevitably will resist; how (in Spinoza's\nlanguage) that 'indignatio' is excited which leads them 'in unum\nconspirare'; but there is none in asking what gives them a right to\nresist, unless we suppose a wrong done to society in their persons;\nand then it becomes a question not of right merely, but of duty,\nwhether the wrong done is such as to demand resistance. Now when the\nquestion is thus put, no one presumably would deny that under certain\nconditions there might be a duty of resistance to sovereign power.\n\n108. It is important, however, that instead of discussing the right\nof a majority to resist, we should discuss the duty of resistance as\nequally possible for a minority and a majority. There can be no right\nof a majority of citizens, as such, to resist a sovereign. If by\nlaw, written or customary, the majority of citizens possess or share\nin the sovereign power, then any conflict that may arise between it\nand any power cannot be a conflict between it and the sovereign. The\nmajority may have a right to resist such a power, but it will not be\na right to resist a _sovereign_. If, on the other hand, the majority\nof citizens have no share by law or custom in the supreme law-making\nand law-enforcing power, they never can have a right, simply as a\nmajority, to resist that power.\n\nIn such a case, there may arise a social duty to resist, and the\nexercise of men's powers in fulfilment of that duty may be sustained\nby such a general recognition of its being for the public good, as to\nbecome a right; but the resistance may be a duty before a majority of\nthe citizens approve it, and does not necessarily become a duty when\na majority of them do approve it; while that general recognition of\nits exercise as being for the common good, through which the power\nof resistance becomes a right, must be something more habitual and\nsustained and penetrating than any vote of a majority can convey.\nIncidentally, however, the consideration of the attitude of the mass\nof the people in regard to a contemplated resistance to established\ngovernment must always be most important in determining the question\nwhether the resistance should be made. It should be made, indeed, if\nat all, not because the majority approve it, but because it is for\nthe public good; but account must be taken of the state of mind of\nthe majority in considering whether it is for the public good or no.\nThe presumption must generally be that resistance to a government is\nnot for the public good when made on grounds which the mass of the\npeople cannot appreciate; and it must be on the presence of a strong\nand intelligent popular sentiment in favour of resistance that the\nchance of avoiding anarchy, of replacing the existing government\nby another effectual for its purpose, must chiefly depend. On the\nother hand, it is under the worst governments that the public spirit\nis most crushed; and thus in extreme cases there may be a duty of\nresistance in the public interest, though there is no hope of the\nresistance finding efficient popular support. (An instance is the\nMazzinian outbreaks in Italy.) Its repeated renewal and repeated\nfailure may afford the only prospect of ultimately arousing the\npublic spirit which is necessary for the maintenance of a government\nin the public interest. And just as there may thus be a duty of\nresistance on the part of a hopeless minority, so on the other side\nresistance even to a monarchic or oligarchic government is not\njustified by the fact that a majority, perhaps in some temporary\nfit of irritation or impatience, is ready to support it, if, as may\nvery well be, the objects for which government subsists--the general\nfreedom of action and acquisition and self-development--are likely to\nsuffer from an overthrow of the government in the popular interest.\n\n109. No precise rule, therefore, can be laid down as to the\nconditions under which resistance to a despotic government becomes\na duty. But the general questions which the good citizen should\nask himself in contemplating such resistance will be, __(a)__ What\nprospect is there of resistance to the sovereign power leading to\na modification of its character or an improvement in its exercise\nwithout its subversion? _(b)_ If it is overthrown, is the temper of\nthe people such, are the influences on which the general maintenance\nof social order and the fabric of recognised rights depend so far\nseparable from it, that its overthrow will not mean anarchy? _(c)_ If\nits overthrow does lead to anarchy, is the whole system of law and\ngovernment so perverted by private interests hostile to the public,\nthat there has ceased to be any common interest in maintaining it?\n\n110. Such questions are so little likely to be impartially\nconsidered at a time when resistance to a despotic government is\nin contemplation, and, however impartially considered, are so\nintrinsically difficult to answer, that it may seem absurd to dwell\non them. No doubt revolutionists do and must to a great extent 'go\nit blind.' Such beneficent revolutions as there have been could not\nhave been if they did not. But in most of those questions of right\nand wrong in conduct, which have to be settled by consideration of\nthe probable effects of the conduct, the estimate of effects which\nregulates our approval or disapproval upon a retrospective survey,\nand according to which we say that an act should or should not have\nbeen done, is not one which we could expect the agent himself to have\nmade. The effort to make it would have paralysed his power of action.\n\n111. In the simple cases of moral duty, where there is no real doubt\nas to the effects of this or that action, and danger arises from\ninterested self-sophistication, we can best decide for ourselves\nwhether we ought to act in this way or that by asking whether it\nis what is good in us--a disinterested or unselfish motive--that\nmoves us to act in this way or that; and in judging of the actions\nof others, where the issues and circumstances are simple, the moral\nquestion, the question of 'ought' or 'ought not,' is often best put\nin the form, How far was the action such as could represent a good\ncharacter? That indeed is the form in which the question should\nalways be put, when the nature of the case admits it; since, as\nargued elsewhere [_Prol. to Ethics_, Bk II, Chaps I and II], it is\nonly in its relation to character that action is in the full sense\ngood or bad. But where the probable effects of a certain line of\naction are at the time of taking it very obscure, we cannot be sure\nthat relatively the best character will lead a man to take the line\nwhich turns out best in the result, or that because a line of action\nhas turned out well in result, the character of the man who adopted\nit was good. This being so, in judging of the act retrospectively we\nhave to estimate it by the result simply, in abstraction from the\ncharacter of the agent. Thus in looking back upon a revolutionary\noutbreak we can only judge whether it was vindicated by the result.\nIf in the light of the result it appears that conditions were not\npresent under which it would have furthered rather than interfered\nwith the true objects of government, we judge that it should not\nhave been made; if otherwise, we approve it,--judge that the persons\nconcerned in it were doing their duty in acting as they did. But\nwhether they were really doing their duty in the full sense of\nthe term in acting as they did in a case when the outbreak was\nsuccessful, or not doing it in a case where it failed, is what we\nsimply cannot tell; for this depends on the state of character which\ntheir action represented, and that is beyond our ken.\n\n112. Such is the necessary imperfection under which all historical\njudgments labour, though historians are not apt to recognise it and\nwould be thought much more dull if they did. They would have fewer\nreaders if they confined themselves to the analysis of situations,\nwhich may be correctly made, and omitted judgments on the morality\nof individuals for which, in the proper sense, the data can never\nbe forthcoming. We scarcely have them for ourselves (except that we\nknow that we are none of us what we should be), still less for our\nintimate acquaintance; not at all for men whom we only know through\nhistory, past or present, in regard to them, we can only fall back on\nthe generalisation, that the best man--the man most disinterestedly\ndevoted to the perfecting of humanity, in some form or other, in\nhis own person or that of others--is more likely to act in a way\nthat is good as measured by its results, those results again being\nestimated with reference to an ideal of character, and that this is\nso even under circumstances of political complication. Appearances\nto the contrary, appearances of harm done from good motives, may be\nmet by the considerations, (1) that there is often much egotism in\nwhat calls itself conscientiousness, and that the 'conscientious'\nmotives which lead to mischievous acts may not be in the highest\nsense disinterested; (2) that to what we call the consequences of an\naction many influences contribute besides the action which we call\nthe cause, and if evil seems to clog the consequences of action pure\nin motive, this may be due to other influences connected with motives\nless worthy, while the consequences which in the rough we call bad\nmight have been worse but for the intervention of the purely-motived\naction; (3) that the beneficent results are often put to the credit\nof the actions of selfish men when they should rather be credited to\ninfluences more remote and complex, without which those actions would\nhave been impossible or had no good effect, and which have arisen out\nof unselfish activities. We see the evil in a course of events and\nlay the blame on someone who should have acted differently, and whom\nperhaps we take as an instance of how good men cause mischief; but\nwe do not see the greater evil which would otherwise have ensued. In\nregard to the questions stated above as those which the good citizen\nshould set himself in contemplation of a possible rebellion, though\nthey are questions to which it is impossible for a citizen in the\nheat of a revolutionary crisis to give a sufficient answer, and which\nin fact can only be answered after the event, yet they represent\nobjects which the good citizen will set before himself at such times;\nand in proportion to the amount of good citizenship, as measured by\ninterest in those objects, interest in making the best of existing\ninstitutions, in maintaining social order and the general fabric of\nrights, interest which leads to a _bona fide_ estimate of the value\nof the existing government in its relation to public good, will be\nthe good result of the political movement.\n\n    G. _WILL, NOT FORCE, IS THE BASIS OF THE STATE._\n\n113. Looking back on the political theories which we have discussed,\nwe may see that they all start with putting the question to be dealt\nwith in the same way, and that their errors are very much due to the\nway in which they put it. They make no inquiry into the development\nof society and of man through society. They take no account of\nother forms of community than that regulated by a supreme coercive\npower, either in the way of investigating their historical origin\nand connection, or of considering the ideas and states of mind which\nthey imply or which render them possible. They leave out of sight the\nprocess by which men have been clothed with rights and duties, and\nwith senses of right and duty, which are neither natural nor derived\nfrom a sovereign power. They look only to the supreme coercive power\non the one side and to individuals, to whom natural rights are\nascribed, on the other, and ask what is the nature and origin of\nthe right of that supreme coercive power as against these natural\nrights of individuals. The question so put can only be answered by\nsome device for representing the individuals governed as consenting\nparties to the exercise of government over them. This they no doubt\nare so long as the government is exercised in a way corresponding to\ntheir several wishes; but, so long as this is the case, there is no\ninterference with their 'natural liberty' to do as they like. It is\nonly when this liberty is interfered with, that any occasion arises\nfor an explanation of the compatibility of the sovereign's right with\nthe natural right of the individual; and it is just then that the\nexplanation by the supposition that the right of the sovereign is\nfounded on consent, fails. But the need of the fictitious explanation\narises from a wrong way of putting the question; the power which\nregulates our conduct in political society is conceived in too\nabstract a way on the one side, and on the other are set over against\nit, as the subjects which it controls, individuals invested with all\nthe moral attributes and rights of humanity. But in truth it is only\nas members of a society, as recognising common interests and objects,\nthat individuals come to have these attributes and rights; and the\npower, which in a political society they have to obey, is derived\nfrom the development and systematisation of those institutions for\nthe regulation of a common life without which they would have no\nrights at all.\n\n114. To ask why I am to submit to the power of the state, is to\nask why I am to allow my life to be regulated by that complex of\ninstitutions without which I literally should not have a life to\ncall my own, nor should be able to ask for a justification of what\nI am called on to do. For that I may have a life which I can call\nmy own, I must not only be conscious of myself and of ends which I\npresent to myself as mine; I must be able to reckon on a certain\nfreedom of action and acquisition for the attainment of those ends,\nand this can only be secured through common recognition of this\nfreedom on the part of each other by members of a society, as being\nfor a common good. Without this, the very consciousness of having\nends of his own and a life which he can direct in a certain way, a\nlife of which he can make something, would remain dormant in a man.\nIt is true that slaves have been found to have this consciousness\nin high development; but a slave even at his lowest has been partly\nmade what he is by an ancestral life which was not one of slavery\npure and simple, a life in which certain elementary rights were\nsecured to the members of a society through their recognition of a\ncommon interest. He retains certain spiritual aptitudes from that\nstate of family or tribal freedom. This, perhaps, is all that could\nbe said of most of the slaves on plantations in modern times; but\nthe slavery of the ancient world, being mainly founded on captivity\nin war, was compatible with a considerable amount of civilisation\non the part of the slaves at the time when their slavery began. A\nJewish slave, e.g., would carry with him into slavery a thoroughly\ndeveloped conception of right and law. Slavery, moreover, implies the\nestablishment of some regular system of rights in the slave-owning\nsociety. The slave, especially the domestic slave, has the signs\nand effects of this system all about him. Hence such elementary\nconsciousness of rights--of powers that are his own to make the best\nof--as the born slave may inherit from an ancestral life of freedom,\nfinds a stimulus to its inward development, though no opportunity\nfor outward exercise, in the habits and ideas of civilised life with\nwhich a common language enables the slave to become conversant, and\nwhich, through the sympathy implied in a common language, he to some\nextent makes his own. Thus the appearance in slaves of the conception\nthat they should be masters of themselves, does not conflict with\nthe proposition that only so far as a certain freedom of action and\nacquisition is secured to a body of men through their recognition of\nthe exercise of that freedom by each other as being for the common\ngood, is there an actualisation of the individual's consciousness\nof having life and ends of his own. The exercise, manifestation,\nexpression of this consciousness through a freedom secured in the way\ndescribed is necessary to its real existence, just as language of\nsome sort is necessary to the real existence of thought, and bodily\nmovement to that of the soul.\n\n115. The demand, again, for a justification of what one is called on\nby authority to do presupposes some standard of right, recognised\nas equally valid for and by the person making the demand and others\nwho form a society with him, and such a recognised standard in turn\nimplies institutions for the regulation of men's dealings with each\nother, institutions of which the relation to the consciousness of\nright may be compared, as above, to that of language to thought.\nIt cannot be said that the most elementary consciousness of right\nis prior to them, or they to it. They are the expressions in which\nit becomes real. As conflicting with the momentary inclinations\nof the individual, these institutions are a power which he obeys\nunwillingly; which he has to, or is made to, obey. But it is only\nthrough them that the consciousness takes shape and form which\nexpresses itself in the question, 'Why should I thus be constrained?\nBy what right is my natural right to do as I like overborne?'\n\n116. The doctrine that the rights of government are founded on the\nconsent of the governed is a confused way of stating the truth,\nthat the institutions by which man is moralised, by which he comes\nto do what he sees that he must, as distinct from what he would\nlike, express a conception of a common good; that through them that\nconception takes form and reality; and that it is in turn through its\npresence in the individual that they have a constraining power over\nhim, a power which is not that of mere fear, still less a physical\ncompulsion, but which leads him to do what he is not inclined to\nbecause there is a law that he should.\n\nRousseau, it will be remembered, speaks of the 'social pact' not\nmerely as the foundation of sovereignty or civil government, but as\nthe foundation of morality. Through it man becomes a moral agent; for\nthe slavery to appetite he substitutes the freedom of subjection to a\nself-imposed law. If he had seen at the same time that rights do not\nbegin till duties begin, and that if there was no morality prior to\nthe pact there could not be rights, he might have been saved from the\nerror which the notion of there being natural rights introduces into\nhis theory. But though he does not seem himself to have been aware\nof the full bearing of his own conception, the conception itself\nis essentially true. Setting aside the fictitious representation\nof an original covenant as having given birth to that common 'ego'\nor general will, without which no such covenant would have been\npossible, and of obligations arising out of it, as out of a bargain\nmade between one man and another, it remains true that only through\na recognition by certain men of a common interest, and through the\nexpression of that recognition in certain regulations of their\ndealings with each other, could morality originate, or any meaning be\ngained for such terms as 'ought' and 'right' and their equivalents.\n\n117. Morality, in the first instance, is the observance of such\nregulations, and though a higher morality, the morality of the\ncharacter governed by 'disinterested motives,' i.e. by interest\nin some form of human perfection, comes to differentiate itself\nfrom this primitive morality consisting in the observance of rules\nestablished for a common good, yet this outward morality is the\npresupposition of the higher morality. Morality and political\nsubjection thus have a common source, '_political_ subjection'\nbeing distinguished from that of a slave, as a subjection which\nsecures rights to the subject. That common source is the rational\nrecognition by certain human beings--it may be merely by children of\nthe same parent--of a common well-being which is their well-being,\nand which they conceive as their well-being whether at any moment\nany one of them is inclined to it or no, and the embodiment of that\nrecognition in rules by which the inclinations of the individuals are\nrestrained, and a corresponding freedom of action for the attainment\nof well-being on the whole is secured.\n\n118. From this common source morality and political subjection in\nall its forms always retain two elements in common, one consisting\nin antagonism to some inclination, the other consisting in the\nconsciousness that the antagonism to inclination is founded on reason\nor on the conception of some adequate good. It is the antagonism\nto inclination involved in the moral life, as alone we know it,\nthat makes it proper to speak analogically of moral 'laws' and\n'imperatives.' It must be remembered, however, that such language\n_is_ analogical, and that there is an essential difference between\nlaws in the strictest sense (laws which are indeed not adequately\ndescribed as general commands of a political superior, sanctioned\nby liability to pains which that superior can inflict, but in which\na command so sanctioned is an essential element), and the laws of\nconscience, of which it is the peculiar dignity that they have no\nexternal imponent and no sanction consisting in fear of bodily evil.\nThe relation of constraint, in the one case between the man and the\nexternally imposed law, in the other between some particular desire\nof the man and his consciousness of something absolutely desirable,\nwe naturally represent in English, when we reflect on it, by the\ncommon term 'must.' 'I _must_ connect with the main drainage,' says\nthe householder to himself, reflecting on an edict of the Local\nBoard. 'I _must_ try to get A.B. to leave off drinking,' he says to\nhimself, reflecting on a troublesome moral duty of benevolence to his\nneighbour. And if the 'must' in the former case represents in part\nthe knowledge that compulsion may be put on the man who neglects to\ndo what he must, which is no part of its meaning in the second, on\nthe other hand the consciousness that the constraint is for a common\ngood, which wholly constitutes the power over inclination in the\nsecond case, must always be an element in that obedience which is\nproperly called obedience to law, or civil or political obedience.\nSimple fear can never constitute such obedience. To represent it as\nthe basis of civil subjection is to confound the citizen with the\nslave, and to represent the motive which is needed for the restraint\nof those in whom the civil sense is lacking, and for the occasional\nreinforcements of the law-abiding principle in others, as if it were\nthe normal influence in habits of life of which the essential value\nlies in their being independent of it. How far in any particular act\nof conformity to law the fear of penalties may be operative, it is\nimpossible to say. What is certain is, that a habit of subjection\nfounded upon such fear could not be a basis of political or free\nsociety; for to this it is necessary, not indeed that everyone\nsubject to the laws should take part in voting them, still less\nthat he should consent to their application to himself, but that it\nshould represent an idea of common good, which each member of the\nsociety can make his own so far as he is rational, i.e. capable of\nthe conception of a common good, however much particular passions\nmay lead him to ignore it and thus necessitate the use of force\nto prevent him from doing that which, so far as influenced by the\nconception of a common good, he would willingly abstain from.\n\n119. Whether the legislative and administrative agencies of society\ncan be kept in the main free from bias by private interests, and\ntrue to the idea of common good, without popular control; whether\nagain, if they can, that 'civil sense,' that appreciation of common\ngood on the part of the subjects, which is as necessary to a free or\npolitical society as the direction of law to the maintenance of a\ncommon good, can be kept alive without active participation of the\npeople in legislative functions; these are questions of circumstances\nwhich perhaps do not admit of unqualified answers. The views of those\nwho looked mainly to the highest development of political life in a\nsingle small society, have to be modified if the object sought for\nis the extension of political life to the largest number of people.\nThe size of modern states renders necessary the substitution of a\nrepresentative system for one in which the citizens shared directly\nin legislation, and this so far tends to weaken the active interest\nof the citizens in the common weal, though the evil may partly be\ncounteracted by giving increased importance to municipal or communal\nadministration. In some states, from the want of homogeneity or\nfacilities of communication, a representative legislature is\nscarcely possible. In others, where it exists, a great amount of\npower, virtually exempt from popular control, has to be left with\nwhat Rousseau would have called the 'prince or magistrate.' In all\nthis there is a lowering of civil vitality as compared with that of\nthe ancient, and perhaps of some exceptionally developed modern,\ncommonwealths. But perhaps this is a temporary loss that we have to\nbear as the price of having recognised the claim to citizenship as\nthe claim of all men. Certainly all political ideals, which require\nactive and direct participation by the citizens in the functions of\nthe sovereign state, fail us as soon as we try to conceive their\nrealisation on the wide area even of civilised mankind. It is easy\nto conceive a better system than that of the great states of modern\nEurope, with their national jealousies, rival armies, and hostile\ntariffs; but the condition of any better state of things would seem\nto be the recognition of some single constraining power, which would\nbe even more remote from the active co-operation of the individual\ncitizen than is the sovereign power of the great states at present.\n\n120. These considerations may remind us how far removed from any\nfoundation in their own will the requirements of the modern state\nmust seem to be to most of those who have to submit to them. It is\ntrue that the necessity which the state lays upon the individual\nis for the most part one to which he is so accustomed that he no\nlonger kicks against it; but what is it, we may ask, but an external\nnecessity, which he no more lays on himself than he does the weight\nof the atmosphere or the pressure of summer heat and winter frosts,\nthat compels the ordinary citizen to pay rates and taxes, to serve\nin the army, to abstain from walking over the squire's fields,\nsnaring his hares, or fishing in preserved streams, to pay rent,\nto respect those artificial rights of property which only the\npossessors of them have any obvious interest in maintaining, or\neven (if he is one of the 'proletariate') to keep his hands off the\nsuperfluous wealth of his neighbour, when he has none of his own\nto lose? Granted that there are good reasons of social expediency\nfor maintaining institutions which thus compel the individual to\nactions and forbearances that are none of his willing, is it not\nabusing words to speak of them as founded on a conception of general\ngood? A conception does not float in the air. It must be somebody's\nconception. Whose conception, then, of general good is it that these\ninstitutions represent? Not that of most of the people who conform\nto them, for they do so because they are made to, or have come to\ndo so habitually from having been long made to; (i.e. from being\nfrightened at the consequences of not conforming, not consequences\nwhich follow from not conforming in the ordinary course of nature,\nbut consequences which the state inflicts, artificial consequences.)\nBut when a man is said to obey an authority from interest in a common\ngood, some other good is meant than that which consists in escaping\nthe punishment which the authority would inflict on disobedience. Is\nthen the conception of common good which is alleged a conception of\nit on the part of those who founded or who maintain the institutions\nin question? But is it not certain that private interests have been\nthe main agents in establishing, and are still in maintaining, at any\nrate all the more artificial rights of property? Have not our modern\nstates, again, in nearly every case been founded on conquest, and are\nnot the actual institutions of government in great measure the direct\nresult of such conquest, or, where revolutions have intervened, of\nviolence which has been as little governed by any conception of\ngeneral good? Supposing that philosophers can find exquisite reasons\nfor considering the institutions and requirements which have resulted\nfrom all this self-seeking and violence to be contributory to the\ncommon good of those who have to submit to them, is it not trifling\nto speak of them as founded on or representing a conception of this\ngood, when no such conception has influenced those who established,\nmaintain, or submit to them? And is it not seriously misleading, when\nthe requirements of the state have so largely arisen out of force\ndirected by selfish motives, and when the motive to obedience to\nthose requirements is determined by fear, to speak of them as having\na common source with the morality of which it is admitted that the\nessence is to be disinterested and spontaneous?\n\n121. If we would meet these objections fairly, certain admissions\nmust be made. The idea of a common good which the state fulfils has\nnever been the sole influence actuating those who have been agents in\nthe historical process by which states have come to be formed; and\neven so far as it has actuated them, it has been only as conceived\nin some very imperfect form that it has done so. This is equally\ntrue of those who contribute to the formation and maintenance of\nstates rather as agents, and of those who do so rather as patients.\nNo one could pretend that even the most thoughtful and dispassionate\npublicist is capable of the idea of the good served by the state to\nwhich he belongs, in all its fulness. He apprehends it only in some\nof its bearings; but it is as a common good that he apprehends it,\ni.e. not as a good for himself or for this man or that more than\nanother, but for all members equally in virtue of their relation\nto each other and their common nature. The idea which the ordinary\ncitizen has of the common good served by the state is much more\nlimited in content. Very likely he does not think of it at all in\nconnection with anything that the term 'state' represents to him.\nBut he has a clear understanding of certain interests and rights\ncommon to himself with his neighbours, if only such as consist in\ngetting his wages paid at the end of the week, in getting his money's\nworth at the shop, in the inviolability of his own person and that\nof his wife. Habitually and instinctively, i.e. without asking the\nreason why, he regards the claim which in these respects he makes\nfor himself as conditional upon his recognising a like claim in\nothers, and thus as in the proper sense a right,--a claim of which\nthe essence lies in its being common to himself with others. Without\nthis instinctive recognition he is one of the 'dangerous classes,'\nvirtually outlawed by himself. With it, though he have no reverence\nfor the 'state' under that name, no sense of an interest shared with\nothers in maintaining it, he has the needful elementary conception of\na common good maintained by law. It is the fault of the state if this\nconception fails to make him a loyal subject, if not an intelligent\npatriot. It is a sign that the state is not a true state; that it is\nnot fulfilling its primary function of maintaining law equally in\nthe interest of all, but is being administered in the interest of\nclasses; whence it follows that the obedience which, if not rendered\nwillingly, the state compels the citizen to render, is not one that\nhe feels any spontaneous interest in rendering, because it does not\npresent itself to him as the condition of the maintenance of those\nrights and interests, common to himself with his neighbours, which he\nunderstands.\n\n122. But if the law which regulates private relations and its\nadministration are so equally applied to all, that all who are\ncapable of a common interest are prompted by that interest to conform\nto the law, the result is still only the loyal subject as distinct\nfrom the intelligent patriot, i.e. as distinct from the man who so\nappreciates the good which in common with others he derives from the\nstate--from the nation organised in the form of a self-governing\ncommunity to which he belongs--as to have a passion for serving\nit, whether in the way of defending it from external attack, or\ndeveloping it from within. The citizens of the Roman empire were\nloyal subjects; the admirable maintenance of private rights made them\nthat; but they were not intelligent patriots, and chiefly because\nthey were not, the empire fell. That active interest in the service\nof the state, which makes patriotism in the better sense, can hardly\narise while the individual's relation to the state is that of a\npassive recipient of protection in the exercise of his rights of\nperson and property. While this is the case, he will give the state\nno thanks for the protection which he will come to take as a matter\nof course, and will only be conscious of it when it descends upon him\nwith some unusual demand for service or payment, and then he will be\nconscious of it in the way of resentment. If he is to have a higher\nfeeling of political duty, he must take part in the work of the\nstate. He must have a share, direct or indirect, by himself acting\nas a member or by voting for the members of supreme or provincial\nassemblies, in making and maintaining the laws which he obeys. Only\nthus will he learn to regard the work of the state as a whole, and\nto transfer to the whole the interest which otherwise his particular\nexperience would lead him to feel only in that part of its work that\ngoes to the maintenance of his own and his neighbour's rights.\n\n123. Even then his patriotism will hardly be the passion which it\nneeds to be, unless his judgment of what he owes to the state is\nquickened by a feeling of which the 'patria,' the fatherland, the\nseat of one's home, is the natural object; and of this feeling\nthe state becomes the object only so far as it is an organisation\nof a people to whom the individual feels himself bound by ties\nanalogous to those which bind him to his family, ties derived from a\ncommon dwelling-place with its associations, from common memories,\ntraditions and customs, and from the common ways of feeling and\nthinking which a common language and still more a common literature\nembodies. Such an organisation of an homogeneous people the modern\nstate in most cases is (the two Austrian states being the most\nconspicuous exceptions), and such the Roman state emphatically was\nnot.\n\n124. But, it will be said, we are here again falling back on our\nunproved assumption that the state is an institution for the\npromotion of a common good. This granted, it is not difficult to\nmake out that in most men at any rate there is a sufficient interest\nin some form of social well-being, sufficient understanding of the\ncommunity between their own well-being and that of their neighbours,\nto make them loyal to such an institution. But the question is,\nwhether the promotion of a common good, at any rate in any sense\nappreciable by the multitude, is any necessary characteristic of a\nstate. It is admitted that the outward visible sign of a state is\nthe presence of a supreme or independent coercive power, to which,\nhabitual obedience is rendered by a certain multitude of people,\nand that this power may often be exercised in a manner apparently\ndetrimental to the general well-being. It may be the case, as we\nhave tried to show that it is, that a power which is in the main so\nexercised, and is generally felt to be so, is not likely long to\nmaintain its supremacy; but this does not show that a state cannot\nexist without the promotion of the common good of its subjects, or\nthat (in any intelligible way) the promotion of such good belongs\nto the idea of a state. A short-lived state is not therefore not a\nstate, and if it were, it is rather the active interference with the\nsubject's well-being, than a failure to promote it, that is fatal\nto the long life of a state. How, finally, can the state be said to\nexist for the sake of an end, or to fulfil an idea, the contemplation\nof which, it is admitted, has had little to do with the actions which\nhave had most to do with bringing states into existence?\n\n125. The last question is a crucial one, which must be met at\nthe outset. It must be noticed that the ordinary conception of\norganisation, as we apply it in the interpretation of nature, implies\nthat agents may be instrumental in the attainment of an end or the\nfulfilment of an idea of which there is no consciousness on the\npart of the organic agents themselves. If it is true on the one\nhand that the interpretation of nature by the supposition of ends\nexternal to it, with reference to which its processes are directed,\nhas been discarded, and that its rejection has been the condition\nof growth in an exact knowledge of nature, on the other hand the\nrecognition of ends immanent in nature, of ideas realised within it,\nis the basis of a scientific explanation of life. The phaenomena\nof life are not ideal, in the sense in which the ideal is opposed\nto that which is sensibly verifiable, but they are related to the\nprocesses of material change which are their conditions, as ideas\nor ideal ends which those processes contribute to realise, because,\nwhile they determine the processes (while the processes would not\nbe what they are but for relation to them), yet they are not those\nprocesses, not identical with any one or number of them, or all of\nthem together. Life does not reside in any of the organs of life,\nor in any or all of the processes of material change through which\nthese pass. Analyse or combine these as you will, you do not detect\nit as the result of the analysis or combination. It is a function or\nend which they realise according to a plan or idea which determines\ntheir existence before they exist and survives their disappearance.\nIf it were held, then, that the state were an organised community\nin the same sense in which a living body is, of which the members\nat once contribute to the function called life, and are made what\nthey are by that function, according to an idea of which there is no\nconsciousness on their part, we should only be following the analogy\nof the established method of interpreting nature.\n\n126. The objection to such a view would be that it represents the\nstate as a purely natural, not at all as a moral, organism. Moral\nagency is not merely an agency by which an end is attained, or an\nidea realised, or a function fulfilled, but an agency determined by\nan idea on the part of the agent, by his conception of an end or\nfunction; and the state would be brought into being and sustained\nby merely natural, as opposed to moral, agency, unless there were\na consciousness of ends--and of ends the same in principle with\nthat served by the state itself--on the part of those by whom it is\nbrought into being, and sustained. I say 'ends the same in principle\nwith that served by the state itself,' because, if the state arose\nout of the action of men determined, indeed, by the consciousness of\nends, but ends wholly heterogeneous to that realised by the state,\nit would not be a moral institution, would not stand in any moral\nrelation to men. Now among the influences that have operated in the\nformation of states, a large part, it must be admitted, are simply\nnatural. Such are the influences of climate, of distribution of\nmountain and plain, land and water, &c, of all physical demarcations\nand means of communication. But these, it is clear, are only organic\nto the formation of states so far as, so to speak, they take a\ncharacter, which does not belong to them as merely natural, from\nagencies distinctively human.\n\n127. 'Human, if you like,' it may be replied, 'but not moral, if a\nmoral agency implies any reference to a social or human good, to a\ngood which the individual desires because it is good for others, or\nfor mankind, as well as himself. In the earth--hunger of conquering\nhordes, in the passions of military despots, in the pride or avarice\nor vindictiveness which moved such men as Louis XI or Henry VIII to\noverride the semi-anarchy of feudalism with a real sovereignty, what\nis there of reference to such good? Yet if we suppose the influence\nof such motives as these, together with the natural influences just\nspoken of, to be erased from the history of the formation of states,\nits distinguishing features are gone.'\n\n128. The selfish motives described must not, any more than the\nnatural influences, be regarded in abstraction, if we would\nunderstand their true place in the formation of states. The pure\ndesire for social good does not indeed operate in human affairs\nunalloyed by egotistic motives, but on the other hand what we call\negotistic motives do not act without direction from an involuntary\nreference to social good,--'involuntary' in the sense that it is so\nmuch a matter of course that the individual does not distinguish it\nfrom his ordinary state of mind. The most conspicuous modern instance\nof a man who was instrumental in working great and in some ways\nbeneficial changes in the political order of Europe, from what we\nshould be apt to call the most purely selfish motives, is Napoleon.\nWithout pretending to analyse these motives precisely, we may say\nthat a leading one was the passion for glory; but if there is to\nbe truth in the statement that this passion governed Napoleon, it\nmust be qualified by the farther statement that the passion was\nitself governed by social influences, operative on him, from which\nit derived its particular direction. With all his egotism, his\nindividuality was so far governed by the action of the national\nspirit in and upon him, that he could only glorify himself in the\ngreatness of France; and though the national spirit expressed itself\nin an effort after greatness which was in many ways of a mischievous\nand delusive kind, yet it again had so much of what may be called the\nspirit of humanity in it, that it required satisfaction in the belief\nthat it was serving mankind. Hence the aggrandisement of France, in\nwhich Napoleon's passion for glory satisfied itself, had to take at\nleast the semblance of a deliverance of oppressed peoples, and in\ntaking the semblance it to a great extent performed the reality; at\nany rate in western Germany and northern Italy, wherever the Code\nNapol\u00e9on was introduced.\n\n129. It is thus that actions of men, whom in themselves we reckon\nbad, are 'overruled' for good. There is nothing mysterious or\nunintelligible in such 'overruling.' There is nothing in the effect\nwhich we ascribe to the 'overruling,' any more than in any effect\nbelonging to the ordinary course of nature, which there was not\nin the cause as it really was and as we should see it to be if we\nfully understood it. The appearance to the contrary arises from our\ntaking too partial and abstract a view of the cause. We look at the\naction e.g. of Napoleon with reference merely to the selfishness\nof his motives. We forget how far his motives, in respect of their\nconcrete reality, in respect of the actual nature of the ends\npursued as distinct from the particular relation in which those\nends stood to his personality, were made for him by influences with\nwhich his selfishness had nothing to do. It was not his selfishness\nthat made France a nation, or presented to him continuously an end\nconsisting in the national aggrandisement of France, or at particular\nperiods such ends as the expulsion of the Austrians from Italy, the\nestablishment of a centralised political order in France on the\nbasis of social equality, the promulgation of the civil code, the\nmaintenance of the French system along the Rhine. His selfishness\ngave a particular character to his pursuit of these ends, and (so far\nas it did so) did so for evil. Finally it led him into a train of\naction altogether mischievous. But at each stage of his career, if\nwe would understand what his particular agency really was, we must\ntake account of his ends in their full character, as determined by\ninfluences with, which, his passion for glory no doubt co-operated,\nbut which, did not originate with it or with him, and in some measure\nrepresented the struggle of mankind towards perfection.\n\n130. And not only must we thus correct our too abstract views of the\nparticular agency of such a man as Napoleon. If we would understand\nthe apparent results of his action, we must bear in mind how much\nbesides his particular agency has really gone to produce them, so far\nas they were good; how much of unnoticed effort on the part of men\nobscure because unselfish, how much of silent process in the general\nheart of man. Napoleon was called the 'armed soldier of revolution,'\nand it was in that character that he rendered what service he did\nto men; but the revolution was not the making of him or his likes.\nCaesar again we have learnt to regard as a benefactor of mankind, but\nit was not Caesar that made the Roman law, through which chiefly or\nsolely the Roman empire became a blessing. The idiosyncrasy, then,\nof the men who have been most conspicuous in the production of great\nchanges in the condition of mankind, though it has been an essential\nelement in their production, has been so only so far as it has been\noverborne by influences and directed to ends, which were indeed not\nexternal to the men in question--which on the contrary helped to make\nthem inwardly and spiritually what they really were--but which formed\nno part of their distinguishing idiosyncrasy. If that idiosyncrasy\nwas conspicuously selfish, it was still not through their selfishness\nthat such men contributed to mould the institutions by which nations\nhave been civilised and developed, but through their fitness to act\nas organs of impulses and ideas which had previously gained a hold on\nsome society of men, and for the realisation of which the means and\nconditions had been preparing quite apart from the action of those\nwho became the most noticeable instruments of their realisation.\n\n131. The assertion, then, that an idea of social good is represented\nby, or realised in, the formation of states, is not to be met by\npointing to the selfishness and bad passions of men who have been\ninstrumental in forming them, if there is reason to think that the\ninfluences, under the direction of which these passions became thus\ninstrumental, are due to the action of such an idea. And when we\nspeak thus we do not refer to any action of the idea otherwise than\nin the consciousness of men. It may be legitimate, as we have seen,\nto consider ideas as existing and acting otherwise, and perhaps,\non thinking the matter out, we should find ourselves compelled to\nregard the idea of social good as a communication to the human\nconsciousness, a consciousness developing itself in time, from an\neternally complete consciousness. But here we are considering it as\na source of the moral action of men, and therefore necessarily as\nhaving its seat in their consciousness, and the proposition advanced\nis that such an idea is a determining element in the consciousness of\nthe most selfish men who have been instrumental in the formation or\nmaintenance of states; that only through its influence in directing\nand controlling their actions could they be so instrumental; and\nthat, though its active presence in their consciousness is due to the\ninstitutions, the organisation of life, under which they are born\nand bred, the existence of these institutions is in turn due to the\naction, under other conditions, of the same idea in the minds of men.\n\n132. It is the necessity of a supreme coercive power to the existence\nof a state that gives plausibility to the view that the action of\nmerely selfish passions may lead to the formation of states. They\nhave been motive causes, it would seem, in the processes by which\nthis 'imperium' has been established; as, e.g., the acquisition of\nmilitary power by a tribal chieftain, the conquest of one tribe\nby another, the supersession of the independent prerogatives of\nfamilies by a tyrant which was the antecedent condition of the\nformation of states in the ancient world, the supersession of feudal\nprerogatives by the royal authority which served the same purpose in\nmodern Europe. It is not, however, supreme coercive power, simply\nas such, but supreme coercive power exercised in a certain way and\nfor certain ends, that makes a state; viz. exercised according to\nlaw, written or customary, and for the maintenance of rights. The\nabstract consideration of sovereignty has led to these qualifications\nbeing overlooked. Sovereignty = supreme coercive power, indeed,\nbut such power as exercised in and over a state, which means with\nthe qualifications specified; but the mischief of beginning with\nan inquiry into sovereignty before the idea of a state has been\ninvestigated, is that it leads us to adopt this abstract notion of\nsovereignty, as merely supreme coercive power, and then, when we\ncome to think of the state as distinguished by sovereignty, makes\nus suppose that supreme coercive power is all that is essential\nto a state, forgetting that it is rather the state that makes the\nsovereign, than the sovereign that makes the state. Supposing one\nman had been master of all the slaves in one of the states of the\nAmerican Union, there would have been a multitude of men under one\nsupreme coercive power, but the slaves and the master would have\nformed no state, because there would have been no recognised rights\nof slave against slave enforced by the master, nor would dealings\nbetween master and slaves have been regulated by any law. The fact\nthat sovereign power, as implied in the fact of its supremacy,\ncan alter any laws, is apt to make us overlook the necessity of\nconformity to law on the part of the sovereign, if he is to be the\nsovereign of a state. A power that altered laws otherwise than\naccording to law, according to a constitution, written or unwritten,\nwould be incompatible with the existence of a state, which is a body\nof persons, recognised by each other as having rights, and possessing\ncertain institutions for the maintenance of those rights. The office\nof the sovereign, as an institution of such a society, is to protect\nthose rights from invasion, either from without, from foreign\nnations, or from within, from members of the society who cease to\nbehave as such. Its supremacy is the society's independence of such\nattacks from without or within. It is an agency of the society, or\nthe society itself acting for this end. If the power, existing for\nthis end, is used on the whole otherwise than in conformity either\nwith a formal constitution or with customs which virtually serve the\npurpose of a constitution, it is no longer an institution for the\nmaintenance of rights and ceases to be the agent of a state. We only\ncount Russia a state by a sort of courtesy on the supposition that\nthe power of the Czar, though subject to no constitutional control,\nis so far exercised in accordance with a recognised tradition of what\nthe public good requires as to be on the whole a sustainer of rights.\n\nIt is true that, just as in a state, all law being derived from the\nsovereign, there is a sense in which the sovereign is not bound by\nany law, so there is a sense in which all rights are derived from\nthe sovereign, and no power which the sovereign refuses to allow\ncan be a right; but it is only in the sense that, the sovereign\nbeing the state acting in a certain capacity, and the state being\nan institution for the more complete and harmonious maintenance of\nthe rights of its members, a power, claimed as a right, but which\nthe state or sovereign refuses to allow, cannot be really compatible\nwith the general system of rights. In other words, it is true only\non the supposition that a state is made a state by the functions\nwhich it fulfils of maintaining the rights of its members as a\nwhole or a system, in such a way that none gains at the expense of\nanother (no one has any power guaranteed to him through another's\nbeing deprived of that power). Thus the state, or the sovereign as\na characteristic institution of the state, does not create rights,\nbut gives fuller reality to rights already existing. It secures and\nextends the exercise of powers, which men, influenced in dealing with\neach other by an idea of common good, had recognised in each other\nas being capable of direction to that common good, and had already\nin a certain measure secured to each other in consequence of chat\nrecognition. It is not a state unless it does so.\n\n133. It may be said that this is an arbitrary restriction of the\nterm 'state.' If any other word, indeed, can be found to express\nthe same thing, by all means let it be used instead. But some word\nis wanted for the purpose, because as a matter of fact societies of\nmen, already possessing rights, and whose dealings with each other\nhave been regulated by customs conformable to those rights, but not\nexisting in the form to which the term 'state' has just been applied\n(i.e. not having a systematic law in which the rights recognised are\nharmonised, and which is enforced by a power strong enough at once\nto protect a society against disturbance within and aggression from\nwithout), have come to take on that form. A word is needed to express\nthat form of society, both according to the idea of it which has\nbeen operative in the minds of the members of the societies which\nhave undergone the change described (an idea only gradually taking\nshape as the change proceeded), and according to the more explicit\nand distinct idea of it which we form in reflecting on the process.\nThe word 'state' is the one naturally used for the purpose. The exact\ndegree to which the process must have been carried before the term\n'state' can be applied to the people in which it has gone on, cannot\nbe precisely determined, but as a matter of fact we never apply it\nexcept in cases where it has gone some way, and we are justified in\nspeaking of the state according to its idea as the society in which\nit is completed.\n\n134. It is a mistake then to think of the state as an aggregation\nof individuals under a sovereign; equally so whether we suppose the\nindividuals as such, or apart from what they derive from society, to\npossess natural rights, or suppose them to depend on the sovereign\nfor the possession of rights. A state presupposes other forms of\ncommunity, with the rights that arise out of them, and only exists\nas sustaining, securing, and completing them. In order to make a\nstate there must have been families of which the members recognised\nrights in each other (recognised in each other powers capable of\ndirection by reference to a common good); there must further have\nbeen intercourse between families, or between tribes that have grown\nout of families, of which each in the same sense recognised rights\nin the other. The recognition of a right being very short of its\ndefinition, the admission of a right in each other by two parties,\nwhether individuals, families, or tribes, being very different from\nagreement as to what the right consists in, what it is a right to do\nor acquire, the rights recognised need definition and reconciliation\nin a general law. When such a general law has been arrived at,\nregulating the position of members of a family towards each other\nand the dealings of families or tribes with each other; when it is\nvoluntarily recognised by a community of families or tribes, and\nmaintained by a power strong enough at once to enforce it within\nthe community and to defend the integrity of the community against\nattacks from without, then the elementary state has been formed.\n\n135. That, however, is the beginning, not the end, of the state.\nWhen once it has come into being, new rights arise in it (1) through\nthe claim for recognition on the part of families and tribes living\non the same territory with those which in community form the state,\nbut living at first in some relation of subjection to them. A common\nhumanity, of which language is the expression, necessarily leads to\nthe recognition of some good as common to these families with those\nwhich form the state. This is in principle the recognition of rights\non their part; and the consequent embodiment of this recognition in\nthe laws of the state is their admission as members of it. (Instances\nof this process are found in the states of Greece and the early\nhistory of Rome.) (2) The same thing may happen in regard to external\ncommunities ('external' territorially), whether these have been\nalready formed into states or no. It may happen through the conquest\nof one by another, through their submission to a common conqueror,\nas under the Roman empire, or through voluntary combination, as\nwith the Swiss cantons and the United States of America. However\nthe combination may arise, it results in new rights as between the\ncombined communities within the system of a single state. (3) The\nextended intercourse between individuals, which the formation of the\nstate renders possible, leads to new complications in their dealings\nwith each other, and with it to new forms of right, especially in\nregard to property; rights as far removed from any obvious foundation\non the _suum cuique_ principle as the right of a college to the great\ntithes of a parish for which it does nothing. (4) The administration\nof the state gives rise to rights, to the establishment of powers\nnecessary for its administration. (5) New situations of life may\narise out of the extended dealings of man with man which the state\nrenders possible (e.g. through the crowding of population in certain\nlocalities) which make new modes of protecting the people a matter\nvirtually of right. And, as new rights arise in the state once\nformed, so further purposes are served. It leads to a development and\nmoralisation of man beyond the stage which they must have reached\nbefore it could be possible.\n\n136. On this I shall dwell more in my next course of lectures. What\nI am now concerned to point out is that, however necessary a factor\nforce may have been in the process by which states have been formed\nand transformed, it has only been such a factor as co-operating with\nthose ideas without which rights could not exist. I say 'could not\n_exist_,' not 'could not be recognised,' because rights are made by\nrecognition. There is no right 'but thinking makes it so'; none that\nis not derived from some idea that men have about each other. Nothing\nis more real than a right, yet its existence is purely ideal, if by\n'ideal' is meant that which is not dependent on anything material\nbut has its being solely in consciousness. It is to these ideal\nrealities that force is subordinate in the creation and development\nof states. The force of conquest from without, the force exercised\nwithin communities by such agents as the early Greek tyrants or the\nroyal suppressors of feudalism in modern Europe, has only contributed\nto the formation of states in so far as its effects have taken\na character which did not belong to them as effects of force; a\ncharacter due to their operation in a moral world, in which rights\nalready existed, resting on the recognition by men of each other as\ndetermined, or capable of being determined, by the conception of a\ncommon good. It is not indeed true that only a state can produce a\nstate, though modern history might seem to favour that notion. As a\nmatter of fact, the formation of modern states through feudalism out\nof an earlier tribal system has been dependent on ideas derived from\nthe Roman state, if not on institutions actually handed down from it;\nand the improvement and development of the state-system which has\ntaken place since the French Revolution has been through agencies\nwhich all presuppose and are determined by the previous existence\nof states. But the Greek states, so far as we know, were a first\ninstitution of the kind, not a result of propagation from previously\nexisting states. But the action which brought them into being was\nonly effectual for its purpose, because the idea of right, though\nonly in the form of family or tribal right, was already in operation.\n\n    H. _HAS THE CITIZEN RIGHTS AGAINST THE STATE?_\n\n137. I propose to pursue the inquiry, begun in my last course,\ninto the nature and functions of the state. In the last course we\nwere chiefly occupied with criticism. We have seen that no true\nconception of the rights of individuals against each other or against\nthe state, or of the rights of the state over individuals, can be\narrived at, while we look upon the state merely as an aggregation\nof individuals under a sovereign power that is able to compel their\nobedience, and consider this power of compelling a general obedience\nto be the characteristic thing in a state. So long as this view is\nretained, no satisfactory answer can be given to the question, by\nwhat right the sovereign compels the obedience of individuals. It can\nonly be met either by some device for representing the individuals\nas so consenting to the exercise of sovereign power over them that\nit is no violation of their individual rights, or by representing\nthe rights of individuals as derived from the sovereign and thus\nas having no existence against it. But it is obviously very often\nagainst the will of individuals that the sovereign power is exercised\nover them; indeed if it were not so, its characteristic as a power\nof compulsion would be lost; it would not be a sovereign power; and\nthe fact that the majority of a given multitude may consent to its\nexercise over an unconsenting minority, is no justification for its\nexercise over that minority, if its justification is founded on\nconsent; the representation that the minority virtually consent to be\nbound by the will of the majority being an obvious fiction. On the\nother hand, the theory that all right is derived from a sovereign,\nthat it is a power of which the sovereign secures the exercise to\nthe individual, and that therefore there can be no right against the\nsovereign, conflicts with the primary demands of human consciousness.\nIt implies the identification of 'I ought' with 'I am forced to.'\nReducing the 'right' of the sovereign simply to a power, it makes\nit unintelligible that this power should yet represent itself as a\nright, and claim obedience to itself as such. No such theory indeed\nadmits of consistent statement. To say (with Hobbes) that a law may\nbe inequitable or pernicious, though it cannot be unjust, is to admit\na criticism of laws, a distinction between those enactments of the\nsovereign which are what they should be and those which are not. And\nthis is to recognise the individual's demand for a justification of\nthe laws which he obeys; to admit in effect that there is some rule\nof right, of which the individual is conscious, and to which law\nought to conform.\n\n138. It is equally impossible, then, to hold that the right of the\nsovereign power in a state over its members is dependent on their\nconsent, and, on the other hand, that these members have no rights\nexcept such as are constituted and conferred upon them by the\nsovereign. The sovereign, and the state itself as distinguished by\nthe existence of a sovereign power, presupposes rights and is an\ninstitution for their maintenance. But these rights do not belong to\nindividuals as they might be in a state of nature, or as they might\nbe if each acted irrespectively of the others. They belong to them\nas members of a society in which each recognises the other as an\noriginator of action in the same sense in which he is conscious of\nbeing so himself (as an 'ego,' as himself the object which determines\nthe action), and thus regards the free exercise of his own powers as\ndependent upon his allowing an equally free exercise of his powers\nto every other member of the society. There is no harm in saying\nthat they belong to individuals as such, if we understand what\nwe mean by 'individual,' and if we mean by it a self-determining\nsubject, conscious of itself as one among other such subjects, and\nof its relation to them as making it what it is; for then there is\nno opposition between the attachment of rights to the individuals\nas such and their derivation from society. They attach to the\nindividual, but only as a member of a society of free agents, as\nrecognising himself and recognised by others to be such a member, as\ndoing and done by accordingly. A right, then, to act unsocially,--to\nact otherwise than as belonging to a society of which each member\nkeeps the exercise of his powers within the limits necessary to the\nlike exercise by all the other members,--is a contradiction. No one\ncan say that, unless he has consented to such a limitation of his\npowers, he has a right to resist it. The fact of his not consenting\nwould be an extinction of all right on his part.\n\n139. The state then presupposes rights, and rights of individuals. It\nis a form which society takes in order to maintain them. But rights\nhave no being except in a society of men recognising each other as\n\u1f34\u03c3\u03bf\u03b9 \u03ba\u03b1\u1f76 \u1f45\u03bc\u03bf\u03b9\u03bf\u03b9. [1] They are constituted by that mutual recognition.\nIn analysing the nature of any right, we may conveniently look at\nit on two sides, and consider it as on the one hand a claim of the\nindividual, arising out of his rational nature, to the free exercise\nof some faculty; on the other, as a concession of that claim by\nsociety, a power given by it to the individual of putting the claim\nin force. But we must be on our guard against supposing that these\ndistinguishable sides have any really separate existence. It is only\na man's consciousness of having an object in common with others, a\nwell-being which is consciously his in being theirs and theirs in\nbeing his,--only the fact that they are recognised by him and he by\nthem as having this object,--that gives him the claim described.\nThere can be no reciprocal claim on the part of a man and an animal\neach to exercise his powers unimpeded by the other, because there is\nno consciousness common to them. But a claim founded on such a common\nconsciousness is already a claim conceded; already a claim to which\nreality is given by social recognition, and thus implicitly a right.\n\n[1] [Greek \u1f34\u03c3\u03bf\u03b9 \u03ba\u03b1\u1f76 \u1f45\u03bc\u03bf\u03b9\u03bf\u03b9 (isoi kai homoioi) = equals and alike,\nplural Tr]\n\n140. It is in this sense that a slave has 'natural rights' They are\n'natural' in the sense of being independent of, and in conflict with,\nthe laws of the state in which he lives, but they are not independent\nof social relations. They arise out of the fact that there is a\nconsciousness of objects common to the slave with those among whom\nhe lives,--whether other slaves or the family of his owner,--and\nthat this consciousness constitutes at once a claim on the part of\neach of those who share it to exercise a free activity conditionally\nupon his allowing a like activity in the others, and a recognition\nof this claim by the others through which it is realised. The slave\nthus derives from his social relations a real right which the law of\nthe state refuses to admit. The law cannot prevent him from acting\nand being treated, within certain limits, as a member of a society of\npersons freely seeking a common good. Now that capability of living\nin a certain limited community with a certain limited number of\nhuman beings, which the slave cannot be prevented from exhibiting,\nis in principle a capability of living in community with any other\nhuman beings, supposing the necessary training to be allowed; and as\nevery such capability constitutes a right, we are entitled to say\nthat the slave has a right to citizenship, to a recognised equality\nof freedom with any and every one with whom he has to do, and that\nin refusing him not only citizenship but the means of training his\ncapability of citizenship, the state is violating a right founded on\nthat common human consciousness which is evinced both by the language\nwhich the slave speaks, and by actual social relations subsisting\nbetween him and others. And on the same principle upon which a state\nis violating natural rights in maintaining slavery, it does the same\nin using force, except under the necessity of self-defence, against\nmembers of another community. Membership of any community is so\nfar, in principle, membership of all communities as to constitute a\nright to be treated as a freeman by all other men, to be exempt from\nsubjection to force except for prevention of force.\n\n141. A man may thus have rights as a member of a family or of human\nsociety in any other form, without being a member of a state at\nall,--rights which remain rights though any particular state or all\nstates refuse to recognise them; and a member of a state, on the\nground of that capability of living as a freeman among freemen which\nis implied in his being a member of a state, has rights as against\nall other states and their members. These latter rights are in fact\nduring peace recognised by all civilised states. It is the object of\n'private international law' to reduce them to a system. But though\nit follows from this that the state does not create rights, it may\nbe still true to say that the members of a state derive their rights\nfrom the state and have no rights against it. We have already seen\nthat a right against society, as such, is an impossibility; that\nevery right is derived from some social relation: that a right\nagainst any group of associated men depends on association, as\n\u1f34\u03c3\u03bf\u03c2 \u03ba\u03b1\u1f76 \u1f45\u03bc\u03bf\u03b9\u03bf\u03c2 [1], with them and with some other men. Now for\nthe member of a state to say that his rights are derived from his\nsocial relations, and to say that they are derived from his position\nas member of a state, are the same thing. The state is for him the\ncomplex of those social relations out of which rights arise, so far\nas those rights have come to be regulated and harmonised according to\na general law, which is recognised by a certain multitude of persons,\nand which there is sufficient power to secure against violation from\nwithout and from within. The other forms of community which precede\nand are independent of the formation of the state, do not continue\nto exist outside it, nor yet are they superseded by it. They are\ncarried on into it. They become its organic members, supporting its\nlife and in turn maintained by it in a new harmony with each other.\nThus the citizen's rights, e.g. as a husband or head of a family or a\nholder of property, though such rights, arising out of other social\nrelations than that of citizen to citizen, existed when as yet there\nwas no state, are yet to the citizen derived from the state, from\nthat more highly developed form of society in which the association\nof the family and that of possessors who respect each other's\npossessions are included as in a fuller whole; which secures to the\ncitizen his family rights and his rights as a holder of property, but\nunder conditions and limitations which the membership of the fuller\nwhole--the reconciliation of rights arising out of one sort of social\ncapability with those arising out of another--renders necessary. Nor\ncan the citizen have any right against the state, in the sense of a\nright to act otherwise than as a member of some society, the state\nbeing for its members the society of societies, the society in which\nall their claims upon each other are mutually adjusted.\n\n[1] [Greek \u1f34\u03c3\u03bf\u03c2 \u03ba\u03b1\u1f76 \u1f45\u03bc\u03bf\u03b9\u03bf\u03c2 (isos kai homoios) = equal and alike,\nsingular Tr.]\n\n142. But what exactly is meant by the citizen's acting 'as a member\nof his state'? What does the assertion that he can have no right\nto act otherwise than as a member of his state amount to? Does it\nmean that he has no right to disobey the law of the state to which\nhe belongs, whatever that law may be? that he is not entitled to\nexercise his power in any way that the law forbids and to refuse\nto exercise them in any way that it commands? This question was\nvirtually dealt with before [1] in considering the justifiability of\nresistance to an ostensible sovereign. The only unqualified answer\nthat can be given to it is one that may seem too general to be of\nmuch practical use, viz. that so far as the laws anywhere or at any\ntime in force fulfil the idea of a state, there can be no right to\ndisobey them; or, that there can be no right to disobey the law of\nthe state except in the interest of the state; i.e. for the purpose\nof making the state in respect of its actual laws more completely\ncorrespond to what it is in tendency or idea, viz. the reconciler\nand sustainer of the rights that arise out of the social relations\nof men. On this principle there can be no right to disobey or evade\nany particular law on the ground that it interferes with any freedom\nof action, any right of managing his children or 'doing what he\nwill with his own,' which but for that law the individual would\npossess. Any power which has been allowed to the individual up to a\ncertain time, he is apt to regard as permanently his right. It has,\nindeed, been so far his right, if the exercise of that power has been\nallowed with any reference to social good, but it does not, as he\nis apt to think, remain his right when a law has been enacted that\ninterferes with it. A man e.g. has been allowed to drive at any pace\nhe likes through the streets, to build houses without any reference\nto sanitary conditions, to keep his children at home or send them to\nwork 'analphabetic,' to buy or sell alcoholic drinks at his pleasure.\nIf laws are passed interfering with any or all of these powers,\nhe says that his rights are being violated. But he only possessed\nthese powers as rights through membership of a society which secured\nthem to him, and of which the only permanent bond consists in the\nreference to the well-being of its members as a whole. It has been\nthe social recognition grounded on that reference that has rendered\ncertain of his powers rights. If upon new conditions arising, or\nupon elements of social good being taken account of which had been\noverlooked before, or upon persons being taken into the reckoning as\ncapable of participation in the social well-being who had previously\nbeen treated merely as means to its attainment,--if in any of these\nways or otherwise the reference to social well-being suggest the\nnecessity of some further regulation of the individual's liberty to\ndo as he pleases, he can plead no right against this regulation,\nfor every right that he has possessed has been dependent on that\nsocial judgment of its compatibility with general well-being which in\nrespect to the liberties in question is now reversed.\n\n[1] [Above, sections 100, 101. RLN]\n\n143. 'Is then,' it may be asked, 'the general judgment as to the\nrequirements of social well-being so absolutely authoritative that\nno individual right can exist against it? What if according to this\njudgment the institution of slavery is so necessary that citizens are\nprohibited by law from teaching slaves to read and from harbouring\nrunaways? or if according to it the maintenance of a certain form\nof worship is so necessary that no other worship can be allowed\nand no opinion expressed antagonistic to it? Has the individual no\nrights against enactments founded on such accepted views of social\nwell-being?' We may answer: A right against society as such, a right\nto act without reference to the needs or good of society, is an\nimpossibility, since every right depends on some social relation, and\na right against any group of associated men depends upon association\non some footing of equality with them or with some other men. We\nsaw how the right of the slave really rested on this basis, on a\nsocial capacity shown in the footing on which he actually lives\nwith other men. On this principle it would follow, if we regard the\nstate as the sustainer and harmoniser of social relations, that the\nindividual can have no right against the state; that its law must be\nto him of absolute authority. But in fact, as actual states at best\nfulfil but partially their ideal function, we cannot apply this rule\nto practice. The general principle that the citizen must never act\notherwise than as a citizen, does not carry with it an obligation\nunder all conditions to conform to the law of his state, since those\nlaws may be inconsistent with the true end of the state as the\nsustainer and harmoniser of social relations. The assertion, however,\nby the citizen of any right which the state does not recognise must\nbe founded on a reference to an acknowledged social good. The fact\nthat the individual would like to exercise the power claimed as a\nright does not render the exercise of it a right, nor does the fact\nthat he has been hitherto allowed to exercise it render it a right,\nif social requirements have arisen under changed conditions, or have\nnewly come to be recognised, with which its exercise is incompatible.\nThe reason that the assertion of an illegal right must be founded on\nreference to acknowledged social good is that, as we have seen, no\nexercise of a power, however abstractedly desirable for the promotion\nof human good it might be, can be claimed as a right unless there is\nsome common consciousness of utility shared by the person making the\nclaim and those on whom it is made. It is not a question whether or\nno it ought to be claimed as a right; it simply cannot be claimed\nexcept on this condition. It would have been impossible, e.g., in\nan ancient state, where the symbol of social union was some local\nworship, for a monotheistic reformer to claim a right to attempt the\nsubversion of that worship. If a duty to do so had suggested itself,\nconsciousness of the duty could never have expressed itself in the\nform of a claim of right, in the absence of any possible sense of\na public interest in the religious revolution to which the claim\ncould be addressed. Thus, just as it is not the exercise of every\npower, properly claimable as a right, that is a right in the full\nor explicit sense of being legally established, so it is not every\npower, of which the exercise would be desirable in an ideal state\nof things, that is properly claimable as a right. The condition of\nits being so claimable is that its exercise should be contributory\nto some social good which the public conscience is capable of\nappreciating, not necessarily one which in the existing prevalence\nof private interests can obtain due acknowledgment, but still one of\nwhich men in their actions and language show themselves to be aware.\n\n144. Thus to the question, Has the individual no rights against\nenactments founded on imperfect views of social well-being? we may\nanswer, He has no rights against them founded on any right to do\nas he likes. Whatever counter-rights he has must be founded on a\nrelation to the social well-being, and that a relation of which his\nfellow -citizens are aware. He must be able to point to some public\ninterest, generally recognised as such, which is involved in the\nexercise of the power claimed by him as a right; to show that it is\nnot the general well-being, even as conceived by his fellow-citizens,\nbut some special interest of a class that is concerned in preventing\nthe exercise of the power claimed. In regard to the right of teaching\nor harbouring the slave, he must appeal to the actual capacity of the\nslave for community with other men as evinced in the manner described\nabove, to the recognition of this capacity as shown by the actual\nbehaviour of the citizens in many respects towards the slave, to\nthe addition to social well-being that results from the realisation\nof this capacity in all who possess it through rights being legally\nguaranteed to them. In this way he must show that the reference to\nsocial well-being, on which is founded the recognition of powers as\nrights, if fairly and thoroughly carried out, leads to the exercise\nof powers in favour of the slave, in the manner described, not to\nthe prohibition of that exercise as the supposed law prohibits it.\nThe response which in doing so he elicits from the conscience of\nfellow-citizens shows that in talking of the slave as 'a man and a\nbrother,' he is exercising what is implicitly his right, though it is\na right which has not become explicit through legal enactments. This\nresponse supplies the factor of social recognition which, as we have\nseen, is necessary in order to render the exercise of any power a\nright. To have an implicit right, however, to exercise a power which\nthe law disallows is not the same thing as having a right to exercise\nthat right. The right may be claimed without the power being actually\nexercised so long as the law prohibits its exercise. The question,\ntherefore, would arise whether the citizen was doing his duty as\nsuch--acting as a member of the state--if he not merely did what he\ncould for the repeal of the law prohibiting the instruction of a\nslave or the assistance of runaways, but himself in defiance of the\nlaw instructed and assisted them. As a general rule, no doubt, even\nbad laws, laws representing the interests of classes or individuals\nas opposed to those of the community, should be obeyed. There can\nbe no right to disobey them, even while their repeal is urged on\nthe ground that they violate rights, because the public interest,\non which all rights are founded, is more concerned in the general\nobedience to law than in the exercise of those powers by individuals\nor classes which the objectionable laws unfairly withhold. The\nmaintenance of a duty prohibiting the import of certain articles in\nthe interest of certain manufacturers would be no justification for\nsmuggling these articles. The smuggler acts for his private gain,\nas does the man who buys of him; and no violation of the law for\nthe private gain of the violator, however unfair the law violated,\ncan justify itself by reference to a recognised public good, or\nconsequently be vindicated as a right. On the other hand, there may\nbe cases in which the public interest--not merely according to some\nremote philosopher's view of it, but according to conceptions which\nthe people are able to assimilate--is best served by a violation\nof some actual law. It is so in regard to slavery when the public\nconscience has come to recognise a capacity for right (for exercising\npowers under the control of a reference to general well-being) in a\nbody of men to whom legal rights have hitherto been refused, but when\nsome powerful class in its own interest resists the alteration of the\nlaw. In such a case the violation of the law on behalf of the slave\nis not only not a violation in the interest of the violator; the\ngeneral sense of right on which the general observance of law depends\nbeing represented by it, there is no danger of its making a breach in\nthe law-abiding habits of the people.\n\n145. 'But this,' it will be said, 'is to assume a condition of things\nin which the real difficulty of the question disappears. What is to\nbe done when no recognition of the implicit rights of the slave can\nbe elicited from the public conscience; when the legal prohibitions\ndescribed are supported by the only conceptions of general good of\nwhich the body of citizens is capable? Has the citizen still a right\nto disregard these legal prohibitions? Is the assertion of such a\nright compatible with the doctrine that social recognition of any\nmode of action as contributory to the common good is necessary to\nconstitute a right so to act, and that no member of a state can\nhave a right to act otherwise than according to that position?' The\nquestion, be it observed, is not as to the right of the slave, but\nas to the right of the citizen to treat the slave as having rights\nin a state of which the law forbids his being so treated. The claim\nof the slave to be free, his right implicit to have rights explicit,\ni.e. to membership of a society of which each member is treated by\nthe rest as entitled to seek his own good in his own way, on the\nsupposition that he so seeks it as not to interfere with the like\nfreedom of quest on the part of others, rests, as we have seen, on\nthe fact that the slave is determined by conceptions of a good common\nto himself with others, as shown by the actual social relations in\nwhich he lives. No state-law can neutralise this right. The state\nmay refuse him family rights and rights of property, but it cannot\nhelp his living as a member of a family, acting and being treated as\na father, husband, son, or brother, and therefore cannot extinguish\nthe rights which are necessarily involved in his so acting and being\nso treated. Nor can it prevent him from appropriating things and from\nassociating with others on the understanding that they respect each\nother's appropriations, and thus possessing and exercising rights of\nproperty. He has thus rights which the state neither gives nor can\ntake away, and they amount to or constitute a right to freedom in\nthe sense explained. The state, under which the slave is a slave,\nrefusing to recognise this right, he is not limited in its exercise\nby membership of the state. He has a right to assert his right to\nsuch membership in any way compatible with that susceptibility to\nthe claims of human fellowship on which the right rests. Other men\nhave claims upon him, conditioning his rights, but the state, as\nsuch, which refuses to recognise his rights, has no claim on him. The\nobligation to observe the law, because it is the law, does not exist\nfor him.\n\n146. It is otherwise with the citizen. The slave has a claim upon him\nto be treated in a certain way, the claim which is properly described\nas that of a common humanity. But the state which forbids him so to\ntreat the slave has also a claim upon him, a claim which embodies\nmany of the claims that arise out of a common humanity in a form\nthat reconciles them with each other. Now it may be argued that the\nclaim of the state is only absolutely paramount on the supposition\nthat in its commands and prohibitions it takes account of all the\nclaims that arise out of human fellowship; that its authority over\nthe individual is in principle the authority of those claims, taken\nas a whole; that if, as in the case supposed, its ordinances conflict\nwith those claims as possessed by a certain class of persons, their\nauthority, which is essentially a conditional or derived authority,\ndisappears; that a disregard of them in the interest of the claims\nwhich they disregard is really conformity to the requirements of\nthe state according to its true end or idea, since it interferes\nwith none of the claims or interests which the state has its value\nin maintaining or protecting, but, on the contrary, forces on\nthe attention of members of the state claims which they hitherto\ndisregarded; and that if the conscience of the citizens is so far\nmastered by the special private interests which the institution of\nslavery breeds that it cannot be brought to recognise action on the\nslave's behalf as contributory to a common good, yet there is no\nground under such conditions for considering a man's fellow-citizens\nto be the sole organs of the recognition which is needed to render\nhis power of action a right; that the needful recognition is at any\nrate forthcoming from the slave, and from all those acquainted with\nthe action in whom the idea of a good common to each man with others\noperates freely.\n\n147. This may be truly urged, but it does not therefore follow that\nthe duty of befriending the slave is necessarily paramount to the\nduty of obeying the law which forbids his being befriended: and if it\nis possible for the latter duty to be paramount, it will follow, on\nthe principle that there is no right to violate a duty, that under\ncertain conditions the right of helping the slave may be cancelled\nby the duty of obeying the prohibitory law. It would be so if the\nviolation of law in the interest of the slave were liable to result\nin general anarchy, not merely in the sense of the dissolution of\nthis or that form of civil combination, but of the disappearance of\nthe conditions under which any civil combination is possible; for\nsuch a destruction of the state would mean a general loss of freedom,\na general substitution of force for mutual good-will in men's\ndealings with each other, that would outweigh the evil of any slavery\nunder such limitations and regulations as an organised state imposes\non it.\n\n    I. _PRIVATE RIGHTS._ _THE RIGHT TO LIFE AND LIBERTY._\n\n148. Returning from this digression, we resume our consideration of\nthe nature and functions of the state. In order to understand this\nnature, we must understand the nature of those rights which do not\ncome into being with the state, but arise out of social relations\nthat may exist where a state is not; it being the first though\nnot the only office of the state to maintain those rights. They\ndepend for their existence, indeed, on society, a society of men\nwho recognise each other as \u1f34\u03c3\u03bf\u03b9 \u03ba\u03b1\u1f76 \u1f45\u03bc\u03bf\u03b9\u03bf\u03b9, as capable of a common\nwell-being, but not on society's having assumed the form of a state.\nThey may therefore be treated as claims of the individual without\nreference to the form of the society which concedes or recognises\nthem, and on whose recognition, as we have seen, their nature as\nrights depends. Only it must be borne in mind that the form in which\nthese claims are admitted and acted on by men in their dealings with\neach other varies with the form of society; that the actual form,\ne.g., in which the individual's right of property is admitted under\na patriarchal _r\u00e9gime_ is very different from that in which it is\nadmitted in a state; and that though the principle of each right is\nthroughout the same, it is a principle which only comes to be fully\nrecognised and acted on when the state has not only been formed, but\nfully developed according to its idea.\n\n149. The rights which may be treated as independent of the state\nin the sense explained are of course those which are commonly\ndistinguished as _private_, in opposition to _public_ rights. 'If\nrights be analysed, they will be found to consist of several kinds.\nFor, first, they are such as regard a man's own person; secondly,\nsuch as regard his dominion over the external and sensible things by\nwhich he is surrounded; thirdly, such as regard his private relations\nas a member of a family; fourthly, such as regard his social state or\ncondition as a member of the community: the first of which classes\nmay be designated as _personal rights_; the second, as _rights of\nproperty_; the third, as _rights in private relations_; and the\nfourth, as _public rights_.' (Stephen, _Comm_., I, p. 136.)\n\n150. An objection might fairly be made to distinguishing one class\nof rights as 'personal,' on the ground that all rights are so;\nnot merely in the legal sense of 'person' according to which the\nproposition is a truism, since every right implies a person as its\nsubject, but in the moral sense, since all rights depend on that\ncapacity in the individual for being determined by a conception of\nwell-being, as an object at once for himself and for others, which\nconstitutes personality in the moral sense. By personal rights in the\nabove classification are meant rights of life and liberty, i.e. of\npreserving one's body from the violence of other men, and of using\nit as an instrument only of one's own will; if of another's, still\nonly through one's own. The reason why these come to be spoken of\nas 'personal' is probably the same with the reason why we talk of a\nman's 'person' in the sense simply of his body. They may, however,\nbe reckoned in a special sense personal even by those who consider\nall rights personal, because the person's possession of a body and\nits exclusive determination by his own will is the condition of\nhis exercising any other rights,--indeed, of all manifestation of\npersonality. Prevent a man from possessing property (in the ordinary\nsense), and his personality may still remain. Prevent him (if it were\npossible) from using his body to express a will, and the will itself\ncould not become a reality; he would not be really a person.\n\n151. If there are such things as rights at all, then, there must be a\nright to life and liberty, or, to put it more properly, to free life.\nNo distinction can be made between the right to life and the right\nto liberty, for there can be no right to mere life, no right to life\non the part of a being that has not also the right to use the life\naccording to the motions of its own will. What is the foundation of\nthis right? The answer is, capacity on the part of the subject for\nmembership of a society, for determination of the will, and through\nit of the bodily organisation, by the conception of a well-being\nas common to self with others. This capacity is the foundation of\nthe right, or the right potentially, which becomes actual through\nthe recognition of the capacity by a society, and through the power\nwhich the society in consequence secures to the individual of acting\naccording to the capacity. In principle, or intrinsically, or in\nrespect of that which it has it in itself to become, the right is\none that belongs to every man in virtue of his human nature (of the\nqualities that render him capable of any fellowship with any other\nmen), and is a right as between him and any other men; because, as\nwe have seen, the qualities which enable him to act as a member of\nany one society having the general well-being of its members for its\nobject (as distinct from any special object requiring special talent\nfor its accomplishment) form a capacity for membership of any other\nsuch society; but actually, or as recognised, it only gradually\nbecomes a right of a man, as man, and against all men.\n\n152. At first it is only a right of the man as a member of some one\nparticular society, and a right as between him and the other members\nof that society, the society being naturally a family or tribe.\nThen, as several such societies come to recognise, in some limited\nway, a common well-being, and thus to associate on settled terms,\nit comes to be a right not merely between the members of any one of\nthe societies, but between members of the several families or tribes\nin their dealings with each other, not, however, as men, but only\nas belonging to this or that particular family. This is the state\nof things in which, if one man is damaged or killed, compensation\nis made according to the terms of some customary law by the family\nor tribe of the offender to that of the man damaged or killed, the\ncompensation varying according to the rank of the family. Upon\nthis system, generally through some fusion of family demarcations\nand privileges, whether through pressure upward of a population\nhitherto inferior, or through a levelling effected by some external\npower, there supervenes one in which the relation between citizen\nand citizen, as such, is substituted for that between family and\nfamily as such. This substitution is one of the essential processes\nin the formation of the state. It is compatible, however, with the\nclosest limitation of the privileges of citizenship, and implies\nno acknowledgment in man as man of the right to free life ascribed\nto the citizen as citizen. In the ancient world the companion\nof citizenship is everywhere slavery, and it was only actual\ncitizenship, not any such capacity for becoming a citizen as might\nnaturally be held to be implied in civil birth, that was considered\nto give a right to live; for the exposure of children was everywhere\npractised [1] (and with the approval of the philosophers), a practice\nin strong contrast with the principle of modern law that even a child\nin the womb has a right to live.\n\n[1] Tacitus speaks of it as a peculiarity of the Jews and Germans\nthat they did not allow the killing of younger children (_Hist_.,\nV, 5; _Germ_. 19). Aristotle (Pol. 1335, b, 19) enjoins that \u03bc\u03b7\u03b4\u1f72\u03bd\n\u03c0\u03b5\u03c0\u03b7\u03c1\u03c9\u03bc\u03ad\u03bd\u03bf\u03bd shall be brought up, but seems to condemn exposure,\npreferring that the required limit of population should be preserved\nby destruction of the embryo, on the principle that \u03c4\u1f78 \u1f45\u03c3\u03b9\u03bf\u03bd \u03ba\u03b1\u1f76 \u03c4\u1f78\n\u03bc\u1f74 \u03b4\u03b9\u03c9\u03c1\u03b9\u03c3\u03bc\u03ad\u03bd\u03bf\u03bd \u03c4\u1fc7 \u03b1\u1f30\u03c3\u03b8\u03ae\u03c3\u03b5\u03b9 \u03ba\u03b1\u1f76 \u03c4\u1ff7 \u03b6\u1fc6\u03bd \u1f14\u03c3\u03c4\u03b1\u03b9 Plato's rule is the same\nas regards the defective children and the procuring abortion, but he\nleaves it in the dark whether he meant any healthy children, actually\nborn, to be put out of the way (_Rep_. 460 C. and 461 C.).\n\n[Greek \u03bc\u03b7\u03b4\u1f72\u03bd \u03c0\u03b5\u03c0\u03b7\u03c1\u03c9\u03bc\u03ad\u03bd\u03bf\u03bd (meden peperomenon) = no deformed [child],\n\u03c4\u1f78 \u1f45\u03c3\u03b9\u03bf\u03bd \u03ba\u03b1\u1f76 \u03c4\u1f78 \u03bc\u1f74 \u03b4\u03b9\u03c9\u03c1\u03b9\u03c3\u03bc\u03ad\u03bd\u03bf\u03bd \u03c4\u1fc7 \u03b1\u1f30\u03c3\u03b8\u03ae\u03c3\u03b5\u03b9 \u03ba\u03b1\u1f76 \u03c4\u1ff7 \u03b6\u1fc6\u03bd \u1f14\u03c3\u03c4\u03b1\u03b9 (to\nhosion kai to me diorismenon te aisthesei kai to zen estai) = what\nmay lawfully be done in such cases [of children not deformed] depends\non the question of sensation and life Tr]\n\n153. The influences commonly pointed out as instrumental in\nbringing about the recognition of rights in the man, as independent\nof particular citizenship, are these: (1) The adjudication by\nRoman praetors of questions at issue between citizens and those\nwho were not so, which led to the formation of the system of\n'equity,' independent of the old civil law and tending gradually\nto be substituted for it. The existence of such a system, however,\npresupposes the recognition of rights so far independent of\ncitizenship in a particular state as to obtain between citizens of\ndifferent states. (2) The doctrine of a 'law of nature' applicable\nto dealings of all men, popularised by the Stoics. (3) The Christian\nconception of the universal redemption of a brotherhood, of which all\ncould become members through a mental act within the power of all.\n\n154. The admission of a right to free life on the part of every man,\nas man, does in fact logically imply the conception of all men as\nforming one society in which each individual has some service to\nrender, one organism in which each has a function to fulfil. There\ncan be no claim on society such as constitutes a right, except in\nrespect of a capacity freely (i.e. under determination by conception\nof the good) to contribute to its good. If the claim is made on\nbehalf of any and every human being, it must be a claim on human\nsociety as a whole, and there must be a possible common good of\nhuman society as a whole, conceivable as independent of the special\nconditions of particular societies, to render such a claim possible.\nWe often find, however, that men assimilate a practical idea in\nrespect of one of its implications without doing so in respect of\nthe rest. Thus the idea of the individual's right to free life has\nbeen strongly laid hold of in Christendom in what may be called an\nabstract or negative way, but little notice has been taken of what\nit involves. Slavery is everywhere condemned. It is established that\nno one has a right to prevent the individual from determining the\nconditions of his own life. We treat life as sacred even in the human\nembryo, and even in hopeless idiots and lunatics recognise a right to\nlive, a recognition which can only be rationally explained on either\nor both of two grounds: (1) that we do not consider either their\nlives, or the society which a man may freely serve, to be limited to\nthis earth, and thus ascribe to them a right to live on the strength\nof a social capacity which under other conditions may become what\nit is not here; or (2) that the distinction between curable and\nincurable, between complete and incomplete, social incapacity is so\nindefinite that we cannot in any case safely assume it to be such as\nto extinguish the right to live. Or perhaps it may be argued that\neven in cases where the incapacity is ascertainably incurable, the\npatient has still a social function (as undoubtedly those who are\nincurably ill in other ways have), a passive function as the object\nof affectionate ministrations arising out of family instincts and\nmemories; and that the right to have life protected corresponds to\nthis passive social function. The fact, however, that we have almost\nto cast about in certain cases for an explanation of the established\nbelief in the sacredness of human life, shows how deeply rooted that\nbelief is unless where some counter-belief interferes with it.\n\n155. On the other hand, it is equally noticeable that there are\ncounter-beliefs which, under conditions, do neutralise it, and that\ncertain other beliefs, which form its proper complement, have very\nslight hold on the mind of modern Christendom. It is taken for\ngranted that the exigencies of the state in war, whether the war be\nnecessary or not for saving the state from dissolution, absolutely\nneutralise the right to live. We are little influenced by the idea of\nthe universal brotherhood of men, of mankind as forming one society\nwith a common good, of which the conception may determine the action\nof its members. In international dealings we are apt to suppose that\nit can have no place at all. Yet, as has been pointed out, it is\nthe proper correlative of the admission of a right to free life as\nbelonging to man in virtue simply of his human nature. And though\nthis right can only be grounded on the capacity, which belongs to\nthe human nature, for freely fulfilling some function in the social\norganism, we do very little to give reality to the capacity or to\nenable it to realise itself. We content ourselves with enacting that\nno man shall be used by other men as a means against his will, but we\nleave it to be pretty much a matter of chance whether or no he shall\nbe qualified to fulfil any social function, to contribute anything to\nthe common good, and to do so freely (i.e. under the conception of a\ncommon good). The only reason why a man should not be used by other\nmen simply as a means to their ends, is that he should use himself\nas a means to an end which is really his and theirs at once. But\nwhile we say that he shall not be used as a means, we often leave him\nwithout the chance of using himself for any social end at all.\n\n156. Four questions then arise: (1) With what right do the\nnecessities of war override the individual's right of life? (2) In\nwhat relation do the rights of states to act for their own interest\nstand to that right of human society, as such, of which the existence\nis implied in the possession of right by the individual as a member\nof that society, irrespectively of the laws of particular states?\n(3) On what principle is it to be assumed that the individual by a\ncertain conduct of his own forfeits the right of free life, so that\nthe state (at any rate for a time) is entitled to subject him to\nforce; to treat him as an animal or a thing? Is this forfeiture ever\nso absolute and final that the state is justified in taking away his\nlife? (4) What is the nature and extent of the individual's claim\nto be enabled to realise that capacity for contributing to a social\ngood, which is the foundation of his right to free life?\n\n    K. _THE RIGHT OF THE STATE OVER THE INDIVIDUAL IN WAR._\n\n157. (1) It may be admitted that to describe war as 'multitudinous\nmurder' is a figure of speech. The essence of murder does not lie\nin the fact that one man takes away the life of another, but that\nhe does this to 'gain his private ends' and with 'malice' against\nthe person killed. I am not here speaking of the legal definition\nof murder, but of murder as a term of moral reprobation, in which\nsense it must be used by those who speak of war as 'multitudinous\nmurder.' They cannot mean murder in the legal sense, because in\nthat sense only 'unlawful killing,' which killing in war is not, is\nmurder. When I speak of 'malice,' therefore, I am not using 'malice'\nin the legal sense. In that sense 'malice' is understood to be the\nattribute of every 'wrongful act done intentionally without just\nor lawful excuse,' [1] and is ascribed to acts (such as killing an\nofficer of justice, knowing him to be such, while resisting him in a\nriot) in which there is no ill-will of the kind which we suppose in\nmurder, when we apply the term in its natural sense as one of moral\ndisapprobation. Of murder in the moral sense the characteristics are\nthose stated, and these are not present in the case of a soldier who\nkills one on the other side in battle. He has no ill-will to that\nparticular person or to any particular person. He incurs an equal\nrisk with the person whom he kills, and incurs that risk not for\nthe sake of killing him. His object in undergoing it is not private\nto himself, but a service (or what he supposes to be a service) to\nhis country, a good which is his own no doubt (that is implied in\nhis desiring it), but which he presents to himself as common to him\nwith others. Indeed, those who might speak of war as 'multitudinous\nmurder' would not look upon the soldier as a murderer. If reminded\nthat there cannot be a murder without a murderer, and pressed to say\nwho, when a bloody battle takes place, the murderer or murderers\nare, they would probably point to the authors of the war. It may be\nquestioned, by the way, whether there has ever been a war of which\nthe origination could be truly said to rest with a definite person\nor persons, in the same way in which the origination of an act which\nwould be called murder in the ordinary sense rests with a particular\nperson. No doubt there have been wars for which certain assignable\nindividuals were specially blameable, wars which they specially\nhelped to bring about or had special means of preventing (and the\nmore the wickedness of such persons is kept in mind the better); but\neven in these cases the cause of the war can scarcely be held to be\ngathered up within the will of any individual, or the combined will\nof certain individuals, in the same way as is the cause of murder or\nother punishable acts. When A.B. is murdered, the sole cause lies in\nsome definite volition of CD. or others, however that volition may\nhave been caused. But when a war 'breaks out,' though it is not to\nbe considered, as we are too apt to consider it, a natural calamity\nwhich could not be prevented, it would be hard to maintain that\nthe sole cause lies in some definite volition on the part of some\nassignable person or persons, even of those who are most to blame.\nPassing over this point, however, if the acts of killing in war are\nnot murders (in the _moral_ sense, the _legal_ being out of the\nquestion) because they lack those characteristics on the part of the\nagent's state of mind which are necessary to constitute a murder,\nthe persons who cause those acts to be committed, if such persons\ncan be pointed out, are not the authors of murder, multitudinous\nor other. They would only be so if the characteristic of 'malice,'\nwhich is absent on the part of the immediate agent of the act, were\npresent on their part as its ultimate agents. But this is not the\ncase. However selfish their motives, they cannot fairly be construed\ninto ill-will towards the persons who happened to be killed in the\nwar; and therefore, whatever wickedness the persons responsible for\nthe war are guilty of, they are not guilty of 'murder' in any natural\nsense of the term, nor is there any murder in the case at all.\n\n[1] Markby, _Elements of Law_, sec. 226.\n\n158. It does not follow from this, however, that war is ever other\nthan a great wrong, as a violation on a multitudinous scale of the\nindividual's right to life. Whether it is so or not must be discussed\non other grounds. If there is such a thing as a right to life on the\npart of the individual man as such, is there any reason to doubt that\nthis right is violated in the case of every man killed in war? It is\nnot to the purpose to allege that in order to a violation of right\nthere must be not only a suffering of some kind on the part of the\nsubject of a right, but an intentional act causing it on the part of\na human agent. There is of course no violation of right when a man\nis killed by a wild beast or a stroke of lightning, because there is\nno right as between a man and a beast or between a man and a natural\nforce. But the deaths in a battle are caused distinctly by human\nagency and intentional agency. The individual soldier may not have\nany very distinct intention when he fires his rifle except to obey\norders, but the commanders of the army and the statesmen who send it\ninto the field intend the death of as many men as may be necessary\nfor their purpose. It is true they do not intend the death of this or\nthat particular person, but no more did the Irishman who fired into\na body of police guarding the Fenian prisoners. It might fairly be\nheld that this circumstance exempted the Irishman from the special\nmoral guilt of murder, though according to our law it did not exempt\nhim from the legal guilt expressed by that term; but no one would\nargue that it made the act other than a violation of the right to\nlife on the part of the policeman killed. No more can the absence\nof an intention to kill this or that specific person on the part of\nthose who cause men to be killed in battle save their act from being\na violation of the right to life.\n\n159. Is there then any condition on the part of the persons killed\nthat saves the act from having this character? It may be urged that\nwhen the war is conducted according to usages that obtain between\ncivilised nations, (not when it is a village-burning war like that\nbetween the English and Afghans), the persons killed are voluntary\ncombatants, and \u03bf\u1f50\u03b4\u03b5\u1f76\u03c2 \u1f00\u03b4\u03b9\u03ba\u03b5\u1fd6\u03c4\u03b1\u03b9 \u1f11\u03ba\u03ce\u03bd [1]. Soldiers, it may be said,\nare in the position of men who voluntarily undertake a dangerous\nemployment. If some of them are killed, this is not more a violation\nof the human right to life than is the death of men who have engaged\nto work in a dangerous coal-pit. To this it must be answered that\nif soldiers did in fact voluntarily incur the special risk of death\nincidental to their calling, it would not follow that the right to\nlife was not violated in their being--killed. It is not a right\nwhich it rests with a man to retain or give up at his pleasure. It\nis not the less a wrong that a man should be a slave because he has\nsold himself into slavery. The individual's right to live is but\nthe other side of the right which society has in his living. The\nindividual can no more voluntarily rid himself of it than he can of\nthe social capacity, the human nature, on which it is founded. Thus,\nhowever ready men may be for high wages to work in a dangerous pit,\na wrong is held to be done if they are killed in it. If provisions\nwhich might have made it safe have been neglected, someone is held\nresponsible. If nothing could make it safe, the working of the pit\nwould not be allowed. The reason for not more generally applying the\npower of the state to prevent voluntary noxious employments, is not\nthat there is no wrong in the death of the individual through the\nincidents of an employment which he has voluntarily undertaken, but\nthat the wrong is more effectually prevented by training and trusting\nindividuals to protect themselves than by the state protecting them.\nThus the waste of life in war would not be the less a wrong,--not the\nless a violation of the right, which subsists between all members\nof society, and which none can alienate, that each should have his\nlife respected by society,--if it were the fact that those whose\nlives are wasted voluntarily incurred the risk of losing them. But\nit can scarcely be held to be the fact. Not only is it impossible,\neven when war is conducted on the most civilised methods, to prevent\ngreat incidental loss of life (to say nothing of other injury) among\nnon-combatants; the waste of the life of the combatants is one which\nthe power of the state compels. This is equally true whether the army\nis raised by voluntary enlistment or by conscription. It is obviously\nso in the case of conscription; but under a system of voluntary\nenlistment, though the individual soldier cannot say that he in\nparticular has been compelled by the government to risk his life,\nit is still the case that the state compels the risk of a certain\nnumber of lives. It decrees that an army of such a size shall be\nraised, though if it can get the men by voluntary hiring it does not\nexercise compulsion on the men of a particular age, and it sends the\narmy into the field. Its compulsive agency causes the death of the\nsoldiers killed, not any voluntary action on the part of the soldiers\nthemselves. The action of the soldiers no doubt contributes to the\nresult, for if they all refused to fight there would be no killing,\nbut it is an action put in motion and directed by the power of the\nstate, which is compulsive in the sense that it operates on the\nindividual in the last resort through fear of death.\n\n[1] [Greek \u03bf\u1f50\u03b4\u03b5\u1f76\u03c2 \u1f00\u03b4\u03b9\u03ba\u03b5\u1fd6\u03c4\u03b1\u03b9 \u1f11\u03ba\u03ce\u03bd (oudeis adikeitai hekon) = there can\nbe no injustice to a person who has agreed to what is done to him Tr.]\n\n160. We have then in war a destruction of human life inflicted on\nthe sufferers intentionally by voluntary human agency. It is true,\nas we saw, that it is not easy to say in any case by whose agency in\nparticular. We may say indeed that it is by the agency of the state,\nbut what exactly does that mean? The state here must = the sovereign\npower in the state; but it is always difficult to say by whom that\npower is wielded, and if we could in any case specify its present\nholders, the further question will arise whether their course of\naction has not been shaped for them by previous holders of power.\nBut however widely distributed the agency may be which causes the\ndestruction of life in war, it is still intentional human agency. The\ndestruction is not the work of accident or of nature. If then it is\nto be other than a wrong, because a violation of the right to mutual\nprotection of life involved in the membership of human society, it\ncan only be because there is exercised in war some right that is\nparamount to this. It may be argued that this is the case; that there\nis no right to the preservation of life at the cost of losing the\nnecessary conditions of 'living well'; that war is in some cases the\nonly means of maintaining these conditions, and that where this is\nso, the wrong of causing the destruction of physical life disappears\nin the paramount right of preserving the conditions under which alone\nmoral life is possible.\n\n161. This argument, however, seems to be only available for shifting\nthe quarter in which we might be at first disposed to lay the blame\nof the wrong involved in war, not for changing the character of\nthat wrong. It goes to show that the wrong involved in the death\nof certain soldiers does not necessarily lie with the government\nwhich sends those soldiers into the field, because this may be\nthe only means by which the government can prevent more serious\nwrong; it does not show that there is no wrong in their death. If\nthe integrity of any state can only be maintained at the cost of\nwar, and if that state is more than what many so-called states have\nbeen,--more than an aggregation of individuals or communities under\none ruling power,--if it so far fulfils the idea of a state, that\nits maintenance is necessary to the free development of the people\nbelonging to it; then by the authorities or people of that state no\nwrong is done by the destruction of life which war involves, except\nso far as they are responsible for the state of things which renders\nthe maintenance of the integrity of the state impossible by other\nmeans. But how does, it come about that the integrity of such a state\nis endangered? Not by accident or by the forces of nature, but by\nintentional human agency in some form or other, however complicated;\nand with that agency lies the wrong-doing. To determine it (as we\nmight be able to do if a horde of barbarians broke in on a civilised\nstate, compelling it to resort to war for its defence) is a matter\nof small importance: what _is_ important to bear in mind (being one\nof those obvious truths out of which we may allow ourselves to be\nsophisticated), is that the destruction of life in war is always\nwrong-doing, whoever be the wrong-doer, and that in the wars most\nstrictly defensive of political freedom the wrong-doing is only\nremoved from the defenders of political freedom to be transferred\nelsewhere. If it is difficult in any case to say precisely where,\nthat is only a reason for more general self-reproach, for a more\nhumbling sense (as the preachers would say) of complicity in that\nradical (but conquerable, because moral) evil of mankind which\nrenders such a means of maintaining political freedom necessary. The\nlanguage, indeed, which we hear from the pulpit about war being a\npunishment for the sins of mankind, is perfectly true, but it needs\nto be accompanied by the reminder that this punishment of sin is\nsimply a consequence of the sin and itself a further sin, brought\nabout by the action of the sinner, not an external infliction brought\nabout by agencies to which man is not a party.\n\n162. In fact, however, if most wars had been wars for the maintenance\nor acquisition of political freedom, the difficulty of fixing the\nblame of them, or at any rate of freeing one of the parties in\neach case from blame, would be much less than it really is. Of the\nEuropean wars of the last four hundred years, how many could be\nfairly said to have been wars in which either or any of the parties\nwere fighting for this end? Perhaps the wars in which the Dutch\nRepublics defended themselves against Spain and against Louis XIV,\nand that in which Germany shook off the dominion of Napoleon. Perhaps\nthe more recent struggles of Italy and Hungary against the Austrian\nGovernment. Perhaps in the first outset of the war of 1792 the French\nmay be fairly held to have been defending institutions necessary\nfor the development of social freedom and equality. In this war,\nhowever, the issue very soon ceased to be one between the defenders\nof such institutions on the one side, and their assailants on the\nother, and in most modern wars the issue has not been of this kind\nat all. The wars have arisen primarily out of the rival ambition of\nkings and dynasties for territorial aggrandisement, with national\nantipathies and ecclesiastical ambitions, and the passions arising\nout of religious partisanship, as complicating influences. As nations\nhave come more and more to distinguish and solidify themselves, and\na national consciousness has come definitely to be formed in each,\nthe rival ambitions of nations have tended more and more first to\nsupport, then perhaps to supersede, the ambitions of dynasties as\ncauses of war. The delusion has been practically dominant that the\ngain of one nation must mean the loss of another. Hence national\njealousies in regard to colonial extension, hostile tariffs and\nthe effort of each nation to exclude others from its markets. The\nexplosion of this idea in the region of political economy has had\nlittle effect in weakening its hold on men's minds. The people of\none nation still hear with jealousy of another nation's advance\nin commerce, as if it meant some decay of their own. And if the\ncommercial jealousy of nations is very slow in disappearing, their\nvanity, their desire apart from trade each to become or to seem\nstronger than the other, has very much increased. A hundred and fifty\nyears ago national vanity could scarcely be said to be an influence\nin politics. The people under one ruler were not homogeneous enough,\nhad not enough of a corporate consciousness, to develope a national\nvanity. Now (under the name of patriotism) it has become a more\nserious disturber of peace than dynastic ambition. Where the latter\nis dangerous, it is because it has national vanity to work upon.\n\n163. Our conclusion then is that the destruction of life in war (to\nsay nothing of other evils incidental to it with which we are not\nhere concerned) is always wrong doing, with whomsoever the guilt of\nthe wrong-doing may lie; that only those parties to a war are exempt\nfrom a share in the guilt who can truly plead that to them war is\nthe only means of maintaining the social conditions of the moral\ndevelopment of man, and that there have been very few cases in which\nthis plea could be truly made. In saying this it is not forgotten,\neither that many virtues are called into exercise by war, or that\nwars have been a means by which the movement of mankind, which there\nis reason for considering a progress to higher good, has been carried\non. These facts do not make the wrong-doing involved in war any less\nso. If nothing is to be accounted wrong-doing through which final\ngood is wrought, we must give up either the idea of there being such\na thing as wrong-doing, or the idea of there being such a thing as\nfinal good. If final good results from the world of our experience,\nit results from processes in which wrong-doing is an inseparable\nelement. Wrong-doing is voluntary action, either (in the deeper\nmoral sense) proceeding from a will uninfluenced by the desire to be\ngood on the part of the agent (which may be taken to include action\ntending to produce such action), or (in the sense contemplated by\nthe 'jus naturae') it is action that interferes with the conditions\nnecessary to the free-play and development of a good-will on the\npart of others. It may be that, according to the divine scheme of\nthe world, such wrong-doing is an element in a process by which men\ngradually approximate more nearly to good (in the sense of a good\nwill). We cannot think of God as a moral being without supposing\nthis to be the case. But this makes no difference to wrong-doing in\nthose relations in which it is wrong-doing, and with which alone we\nare concerned, viz. in relation to the will of human agents and to\nthe results which those agents can foresee and intend to produce. If\nan action, so far as any results go which the agent can have in view\nor over which he has control, interferes with conditions necessary\nto the free-play and development of a good-will on the part of\nothers, it is not the less wrong-doing because, through some agency\nwhich is not his, the effects which he intended, and which rendered\nit wrong-doing, come to contribute to an ulterior good. Nor, if it\nissues from bad will (in the sense explained), is it less wrong (in\nthe moral sense) because this will is itself, in the view of some\nhigher being, contributory to a moral good which is not, in whole or\npart, within the view of the agent. If then war is wrong-doing in\nboth the above senses (as it is always, at any rate on the part of\nthose with whom the ultimate responsibility for it lies), it does not\ncease to be so on account of any good resulting from it in a scheme\nof providence.\n\n164. 'But,' it may be asked, 'are we justified in saying that it\nis always wrong-doing on the part of those with whom the ultimate\nresponsibility lies? It is admitted that certain virtues may be\nevoked by war; that it may have results contributory to the moral\nprogress of mankind; may not the eliciting of these virtues, the\nproduction of these results, be contemplated by the originators of\nwar, and does not the origination of war, so far as influenced by\nsuch motives, cease to be wrong-doing? It must be admitted that\nCaesar's wars in Gaul were unprovoked wars of conquest, but their\neffect was the establishment of Roman civilisation with its equal law\nover a great part of western Europe, in such a way that it was never\nwholly swept away, and that a permanent influence in the progress of\nthe European polity can be traced to it. May he not be credited with\nhaving had, however indefinitely, such an effect as this in view?\nEven if his wish to extend Roman civilisation was secondary to a plan\nfor raising an army by which he might master the Republic, is he to\nhave no credit for the beneficent results which are admitted to have\nensued from the success of that plan? May not a similar justification\nbe urged for English wars in India? If, again, the establishment\nof the civil unity of Germany and the liberation of Christian\npopulations in Turkey are admitted to have been gains to mankind, is\nnot that a justification of the persons concerned in the origination\nof the wars that brought about those results, so far as they can be\nsupposed to have been influenced by a desire for them?'\n\n165. These objections might be to the purpose if we were attempting\nthe task (generally, if not always, an impossible one) of determining\nthe moral desert, good or ill, of those who have been concerned\nin bringing this or that war about. Their tendency merely is to\ndistribute the blame of the wrong-doing involved in war, to show\nhow widely ramified is the agency in that wrong-doing, not to\naffect its character as wrong-doing. If the only way of civilising\nGaul was to kill all the people whom Caesar's wars caused to be\nkilled, and if the desire for civilising it was a prevailing motive\nin Caesar's mind, so much the better for Caesar, but so much the\nworse for the other unassignable and innumerable human agents who\nbrought it about that such an object could only be attained in such\na way. We are not, indeed, entitled to say that it could have been\nbrought about in any other way. It is true to say (if we know what\nwe are about in saying it) that nothing which happens in the world\ncould have happened otherwise than it has. The question for us is,\nwhether that condition of things which rendered e.g. Caesar's Gallic\nwars, with the violation of human rights which they involved, the\ninterference in the case of innumerable persons with the conditions\nunder which man can be helpful to man (physical life being the first\nof these), the _sine qua non_ in the promotion of ulterior human\nwelfare, was or was not the work of human agency. If it was (and\nthere is no doubt that it was, for to what merely natural agency\ncould the necessity be ascribed?), then in that ordinary sense of\nthe word 'could' in which it expresses our responsibility for our\nactions, men _could_ have brought about the good result without the\nevil means. They could have done so if they had been better. It was\nowing to human wickedness--if less on Caesar's part, then so much\nthe more on the part of innumerable others--that the wrong-doing\nof those wars was the appropriate means to this ulterior good. So\nin regard to the other cases instanced. It is idle to speculate on\nother means by which the permanent pacification of India, or the\nunification of Germany, or the liberation of Christians in European\nTurkey might have been brought about; but it is important to bear\nin mind that the innumerable wrong acts involved in achieving\nthem--acts wrong, because violations of the rights of those directly\naffected by them--did not cease to be wrong acts because under the\ngiven condition of things the results specified would not have been\nobtained without them. This given condition of things was not like\nthat (e.g.) which compels the castaways from a shipwreck, so many\ndays from shore, and with only so much provision in their boat, to\ndraw lots which shall be thrown overboard. It was a condition of\nthings which human wickedness, through traceable and untraceable\nchannels, brought about. If the individual promoters of wars,\nwhich through the medium of multitudinous wrong-doing have yielded\ngood to mankind, have been really influenced by a desire for any\nsuch good,--and much scepticism is justified in regard to such a\nsupposition,--then so much less of the guilt of the wrong-doing has\nbeen theirs. No nation, at any rate, that has taken part in such wars\ncan fairly take credit for having been governed by such a motive. It\nhas been either a passive instrument in the hands of its rulers, or\nhas been animated by less worthy motives, very mixed, but of which\nperhaps a diffused desire for excitement has been the most innocent.\nOn what reasonable ground can Englishmen or Germans or Russians claim\nthat their several nations took part in the wars by which India was\npacified, Germany unified, Bulgaria liberated, under the dominant\ninfluence of a desire for human good? Rather, if the action of a\nnational conscience in such matters is possible at all, they should\ntake shame for their share in that general human selfishness which\nrendered certain conditions of human development only attainable by\nsuch means.\n\n166. (2) Reverting then to the questions which arose [1] out of the\nassertion of a right to free life on the part of the individual man\nas such, it appears that the first must be answered in the negative.\nNo state of war can make the destruction of man's life by man other\nthan a wrong, though the wrong is not always chargeable upon all the\nparties to a war. The second question is virtually answered by what\nhas been said about the first. In regard to the state according to\nits idea the question could not arise, for according to its idea\nthe state is an institution in which all rights are harmoniously\nmaintained, in which all the capacities that give rise to rights have\nfree-play given to them. No action in its own interest of a state\nthat fulfilled this idea could conflict with any true interest or\nright of general society, of the men not subject to its law taken as\na whole. There is no such thing as an inevitable conflict between\nstates. There is nothing in the nature of the state that, given a\nmultiplicity of states, should make the gain of the one the loss of\nthe other. The more perfectly each one of them attains its proper\nobject of giving free scope to the capacities of all persons living\non a certain range of territory, the easier it is for others to\ndo so; and in proportion as they all do so the danger of conflict\ndisappears.\n\n[1] [Above, sec. 156. RLN]\n\n167. On the other hand, the imperfect realisation of civil equality\nin the full sense of the term in certain states, is in greater or\nless degree a source of danger to all. The presence in states either\nof a prerogatived class or of a body of people who, whether by open\ndenial of civil rights or by restrictive laws, are thwarted in\nthe free development of their capacities, or of an ecclesiastical\norganisation which disputes the authority of the state on matters\nof right and thus prevents the perfect civil fusion of its members\nwith other citizens, always breeds an imagination of there being\nsome competition of interests between states. The privileged class\ninvoluntarily believes and spreads the belief that the interest of\nthe state lies in some extension without, not in an improvement of\norganisation within. A suffering class attracts sympathy from without\nand invites interference with the state which contains it; and that\nstate responds, not by healing the sore, but by defending against\naggression what it conceives to be its special interests, but which\nare only special on account of its bad organisation. Or perhaps the\nsuffering population overflows into another state, as the Irish into\nAmerica, and there becomes a source not only of internal difficulty\nbut of hostile feeling between it and the state where the suffering\npopulation still survives. People, again, who, in matters which the\nstate treats as belonging to itself, take their direction from an\necclesiastical power external to the state under which they live,\nare necessarily in certain relations alien to that state, and may at\nany time prove a source of apparently conflicting interests between\nit and some other state, which under the influence of the hostile\necclesiastical power espouses their cause. Remove from European\nstates, as they are and have been during the last hundred years, the\noccasions of conflict, the sources of apparently competing interests,\nwhich arise in one or other of the ways mentioned,--either from the\nmistaken view of state-interests which a privileged class inevitably\ntakes, or from the presence in them of oppressed populations, or from\nwhat we improperly call the antagonism of religious confessions,--and\nthere would not be or have been anything to disturb the peace between\nthem. And this is to say that the source of war between states lies\nin their incomplete fulfilment of their function; in the fact that\nthere is some defect in the maintenance or reconciliation of rights\namong their subjects.\n\n168. This is equally true in regard to those causes of conflict\nwhich are loosely called 'religious.' These do not arise out of any\ndifferences between the convictions of different people in regard\nto the nature of God or their relations to Him, or the right way of\nworshipping Him. They arise either out of some aggression upon the\nreligious freedom of certain people, made or allowed by the powers\nof the state, which thus puts these people in the position of an\nalien or unenfranchised class, or else out of an aggression on the\nrights of the state by some corporation calling itself spiritual but\nreally claiming sovereignty over men's actions in the same relations\nin which the state claims to determine them. There would be nothing\ntending to international disturbance in the fact that bodies of\npeople who worship God in the Catholic manner live in a state where\nthe majority worship in the Greek or Protestant manner, and alongside\nof another state where the majority is Catholic, but for one or other\nor both of these circumstances, viz. that the Catholic worship and\nteaching is interfered with by the Protestant or Greek state, and\nthat Catholics are liable to a direction by a power which claims to\nregulate men's transactions with each other by a law of its own, and\nwhich may see fit (e.g.) to prohibit the Catholic subjects in the\nGreek or Protestant state from being married, or having their parents\nburied, or their children taught the necessary arts, in the manner\nwhich the state directs. This reciprocal invasion of right, the\ninvasion of the rights of the state by the church on the one side,\nand on the other the restriction placed by the sovereign upon the\nsubject's freedom, not of conscience, (for that is impossible), but\nof expressing his conscience in word and act, has sometimes caused a\nstate of things in which certain of the subjects of a state have been\nbetter affected to another state than to their own, and in such a\ncase there is an element of natural hostility between the states. An\nobvious instance to give of this relation between states would have\nbeen that between Russia and Turkey, if Turkey could be considered to\nhave been constituted as a state at all. Perhaps a better instance\nwould be the position of Ireland in the past; its disaffection to\nEngland and gravitation, first to France, then to the United States,\ncaused chiefly by Protestant penal laws which in turn were at least\nprovoked by the aggressive attitude of the church towards the English\nstate. Whenever a like invasion of rights still takes place, e.g.\nin the treatment of the Catholic subjects of Russia in Poland, in\nthe ultramontane movement of resistance to certain requirements\nof the state among the Catholic subjects of Germany, it tends to\ninternational conflict. And what is now a somewhat remote tendency\nhas in the past been a formidable stimulant to war.\n\n169. It is nothing then in the necessary organisation of the state,\nbut rather some defect of that organisation in relation to its proper\nfunction of maintaining and reconciling rights, of giving scope to\ncapacities, that leads to a conflict of apparent interests between\none state and another. The wrong, therefore, which results to human\nsociety from conflicts between states cannot be condoned on the\nground that it is a necessary incident of the existence of states.\nThe wrong cannot be held to be lost in a higher right, which attaches\nto the maintenance of the state as the institution through which\nalone the freedom of man is realised. It is not the state, as such,\nbut this or that particular state, which by no means fulfils its\npurpose, and might perhaps be swept away and superseded by another\nwith advantage to the ends for which the true state exists, that\nneeds to defend its interests by action injurious to those outside\nit. Hence there is no ground for holding that a state is justified\nin doing whatever its interests seem to require, irrespectively\nof effects on other men. If those effects are bad, as involving\neither a direct violation of personal rights or obstruction to the\nmoral development of society anywhere in the world, then there is\nno ultimate justification for the political action that gives rise\nto them. The question can only be (as we have seen generally in\nregard to the wrong-doing of war), where in particular the blame\nlies. Whether there is any justification for a particular state,\nwhich in defence of its interests inflicts an injury on some portion\nof mankind; whether, e.g., the Germans are justified in holding\nMetz, on the supposition that their tenure of such a thoroughly\nFrench town necessarily thwarts in many ways the healthy activity\nof the inhabitants, or the English in carrying fire and sword into\nAfghanistan for the sake of acquiring a scientific frontier; this\nmust depend (1) on the nature of the interests thus defended, (2) on\nthe impossibility of otherwise defending them, (3) on the question\nhow they came to be endangered. If they are interests of which the\nmaintenance is essential to those ends as a means to which the state\nhas its value, if the state which defends them has not itself been a\njoint-cause of their being endangered, and if they cannot be defended\nexcept at the cost of injury to some portion of mankind, then the\nstate which defends them is clear of the guilt of that injury. But\nthe guilt is removed from it only to be somewhere else, however wide\nits distribution may be. It may be doubted, however, whether the\nsecond question could ever be answered altogether in favour of a\nstate which finds it necessary to protect its interests at the cost\nof inflicting an injury on mankind.\n\n170. It will be said, perhaps, that these formal arguments in proof\nof the wrong-doing involved in war, and of the unjustifiability\nof the policy which nations constantly adopt in defence of their\napparent interests, carry very little conviction; that a state is\nnot an abstract complex of institutions for the maintenance of\nrights, but a nation, a people, possessing such institutions; that\nthe nation has its passions which inevitably lead it to judge all\nquestions of international right from its own point of view, and to\nconsider its apparent national interests as justifying anything;\nthat if it were otherwise, if the cosmopolitan point of view could\nbe adopted by nations, patriotism would be at an end; that whether\nthis be desirable or no, such an extinction of national passions is\nimpossible; that while they continue, wars are as inevitable between\nnations as they would be between individuals, if individuals were\nliving in what philosophers have imagined to be the state of nature,\nwithout recognition of a common superior; that nations in short are\nin the position of men judging their own causes, which it is admitted\nthat no one can do impartially; and that this state of things cannot\nbe altered without the establishment of a common constraining power,\nwhich would mean the extinction of the life of independent states,--a\nresult as undesirable as it is unattainable. Projects of perpetual\npeace, to be logical, must be projects of all-embracing empire.\n\n171. There is some cogency in language of this kind. It is true\nthat when we speak of a state as a living agency, we mean, not an\ninstitution or complex of institutions, but a nation organised in\na certain way; and that members of the nation in their corporate\nor associated action are animated by certain passions, arising out\nof their association, which, though not egoistic relatively to the\nindividual subjects of them (for they are motives to self-sacrifice),\nmay, in their influence on the dealings of one nation with another,\nhave an effect analogous to that which egoistic passions, properly\nso called, have upon the dealings of individuals with each other.\nOn the other hand, it must be remembered that the national passion,\nwhich in any good sense is simply the public spirit of the good\ncitizen, may take, and every day is taking, directions which lead\nto no collision between one nation and another; (or, to say the\nsame thing negatively, that it is utterly false to speak as if the\ndesire for one's own nation to show more military strength than\nothers were the only or the right form of patriotism); and that\nthough a nation, with national feeling of its own, must everywhere\nunderlie a state, properly so called, yet still, just so far as the\nperfect organisation of rights within each nation, which entitles\nit to be called a state, is attained, the occasions of conflict\nbetween nations disappear; and again, that by the same process, just\nso far as it is satisfactorily carried out, an organ of expression\nand action is established for each nation in dealing with other\nnations, which is not really liable to be influenced by the same\negoistic passions in dealing with the government of another nation as\nembroil individuals with each other. The love of mankind, no doubt,\nneeds to be particularised in order to have any power over life and\naction. Just as there can be no true friendship except towards this\nor that individual, so there can be no true public spirit which is\nnot localised in some way. The man whose desire to serve his kind is\nnot centred primarily in some home, radiating from it to a commune,\na municipality, and a nation, presumably has no effectual desire to\nserve his kind at all. But there is no reason why this localised\nor nationalised philanthropy should take the form of a jealousy of\nother nations or a desire to fight them, personally or by proxy.\nThose in whom it is strongest are every day expressing it in good\nworks which benefit their fellow-citizens without interfering with\nthe men of other nations. Those who from time to time talk of the\nneed of a great war to bring unselfish impulses into play, give us\nreason to suspect that they are too selfish themselves to recognise\nthe unselfish activity that is going on all round them. Till all\nthe methods have been exhausted by which nature can be brought into\nthe service of man, till society is so organised that everyone's\ncapacities have free scope for their development, there is no need to\nresort to war for a field in which patriotism may display itself.\n\n172. In fact, just so far as states are thoroughly formed, the\ndiversion of patriotism into the military channel tends to come to an\nend. It is a survival from a condition of things in which, as yet,\nthe state, in the full sense, was not; in the sense, namely, that\nin each territory controlled by a single independent government,\nthe rights of all persons, as founded on their capacities for\ncontributing to a common good, are equally established by one system\nof law. If each separately governed territory were inhabited by a\npeople so organised within itself, there would be nothing to lead\nto the association of the public spirit of the good citizen with\nmilitary aggressiveness,--an association which belongs properly not\nto the \u03c0\u03bf\u03bb\u03b9\u03c4\u03b5\u03af\u03b1 [1], but to the \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1. The Greek states, however\ncomplete might be the equality of their citizens among themselves,\nwere all \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1\u03b9 in relation to some subject populations, and, as\nsuch, jealous of each other. The Peloponnesian war was eminently a\nwar of rival \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1\u03b9. And those habits and institutions and modes\nof feeling in Europe of the present day, which tend to international\nconflict, are either survivals from the \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1\u03b9 of the past, or\narise out of the very incomplete manner in which, as yet, over most\nof Europe the \u03c0\u03bf\u03bb\u03b9\u03c4\u03b5\u03af\u03b1 has superseded the \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1. Patriotism,\nin that special military sense in which it is distinguished from\npublic spirit, is not the temper of the citizen dealing with\nfellow-citizens, or with men who are themselves citizens of their\nseveral states, but that of the follower of the feudal chief, or\nof the member of a privileged class conscious of a power, resting\nultimately on force, over an inferior population, or of a nation\nholding empire over other nations.\n\n[1] [Greek \u03c0\u03bf\u03bb\u03b9\u03c4\u03b5\u03af\u03b1 (politeia) = constitutional government,\nparticularly a city-state, \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1/\u03b9 (dunasteia/i) = narrow\noligarchy/ies Tr]\n\n173. Standing armies, again, though existing on a larger scale now\nthan ever before, are not products of the civilisation of Europe, but\nof the predominance over that civilisation of the old \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1\u03b9.\nThe influences which have given rise to and keep up those armies\nessentially belong to a state of things in which mankind--even\nEuropean mankind--is not yet thoroughly organised into political\nlife. Roughly summarised, they are these: (1). The temporary\nconfiscation by Napoleon to his own account of the products of the\nFrench Revolution, which thus, though founded on a true idea of a\ncitizenship in which not the few only, but all men, should partake,\nfor the time issued in a \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1 over the countries which most\ndirectly felt the effects of the revolution. (2). The consequent\nrevival in dynastic forms, under the influence of antagonism to\nFrance, of national life in Germany. (3), The aspiration after\nnational unity elsewhere in Europe,--a movement which must precede\nthe organisation of states on a sound basis, and for the time readily\nyields itself to direction by a \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1. (4). The existence, over\nall the Slavonic side of Europe, of populations which are only just\nbeginning to make any approach to political life--the life of the\n\u03c0\u03bf\u03bb\u03b9\u03c4\u03b5\u03af\u03b1, or 'civitas '--and still offer a tempting field to the\nambition of rival \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1\u03b9, Austrian, Russian, and Turkish (which,\nindeed, are by no means to be put on a level, but are alike as not\nresting on a basis of citizenship). (5). The tenure of a great Indian\nempire by England, which not only gives it a military character which\nwould not belong to it simply as a state, but brings it into outward\nrelations with the \u03b4\u03c5\u03bd\u03b1\u03c3\u03c4\u03b5\u03af\u03b1\u03b9 just spoken of. This is no doubt a\nvery incomplete account of the influences which have combined to\n'turn Europe into a great camp' (a very exaggerated expression); but\nit may serve to show what a fuller account would show more clearly,\nthat the military system of Europe is no necessary incident of the\nrelations between independent states, but arises from the fact that\nthe organisation of state-life, even with those peoples that have\nbeen brought under its influence at all, is still so incomplete.\n\n174. The more complete that organisation becomes, the more the\nmotives and occasions of international conflict tend to disappear,\nwhile the bonds of unity become stronger. The latter is the case, if\nfor no other reason, yet for this; that the better organisation of\nthe state means freer scope to the individual (not necessarily to do\nas he likes, e.g. in, the buying and selling of alcohol, but in such\ndevelopment of activity as is good on the whole). This again means\nfree intercourse between members of one state and those of another,\nand in particular more freedom of trade. All restrictions on freedom\nof wholesome trade are really based on special class-interests,\nand must disappear with the realisation of that idea of individual\nright, founded on the capacity of every man for free contribution\nto social good, which is the true idea of the state. And as trade\nbetween members of different states becomes freer and more full, the\nsense of common interests between them, which war would infringe,\nbecomes stronger. The bond of peace thus established is sometimes\ndepreciated as a selfish one, but it need be no more selfish than\nthat which keeps the peace between members of the same state, who\nhave no acquaintance with each other. In one case as in the other\nit may be said that the individual tries to prevent a breach of the\npeace because he knows that he has more to gain than to lose by it.\nIn the latter case, however, this account of the matter would be, to\nsay the least, insufficient. The good citizen observes the law in\nletter and in spirit, not from any fear of consequences to himself\nif he did not, but from an idea of the mutual respect by men for\neach other's rights as that which should be an idea which has become\nhabitual with him, and regulates his conduct without his asking airy\nquestions about it. There was a time, however, when this idea only\nthus acted spontaneously in regulating a man's action towards his\nfamily or immediate neighbours or friends. Considerations of interest\nwere the medium through which a wider range of persons came to be\nbrought within its range. And thus, although considerations of an\nidentity of interests, arising out of trade, may be the occasion of\nmen's recognising in men of other nations those rights which war\nviolates, there is no reason why, upon that occasion and through\nthe familiarity which trade brings about, an idea of justice, as a\nrelation which should subsist between all mankind as well as between\nmembers of the same state, may not come to act on men's minds as\nindependently of all calculation of their several interests as does\nthe idea which regulates the conduct of the good citizen.\n\n175. If the necessary or impelling power of the idea of what is\ndue from members of different nations to each other is weak, it\nmust be observed on the other hand that the individual members of a\nnation have no such apparent interest in their government's dealing\nunfairly with another nation as one individual may have in getting\nthe advantage of another. Thus, so far as this idea comes to form\npart of the habit of men's minds, there ceases to be anything in the\npassions of the people which a government represents to stimulate the\ngovernment to that unfairness in dealing with another government,\nto which an individual might be moved by self-seeking passions in\ndealing with another individual, in the absence of an impartial\nauthority having power over both. If at the same time the several\ngovernments are purely representative of the several peoples, as they\nshould become with the due organisation of the state, and thus have\nno dynastic interests of their own in embroiling one nation with\nanother, there seems to be no reason why they should not arrive at a\npassionless impartiality in dealing with each other, which would be\nbeyond the reach of the individual in defending his own cause against\nanother. At any rate, if no government can ever get rid of some bias\nin its own favour, there remains the possibility of mediation in\ncases of dispute by disinterested governments. With the abatement of\nnational jealousies and the removal of those deeply-seated causes\nof war which, as we have seen, are connected with the deficient\norganisation of states, the dream of an international court with\nauthority resting on the consent of independent states may come to\nbe realised. Such a result may be very remote, but it is important\nto bear in mind that there is nothing in the intrinsic nature of a\nsystem of independent states incompatible with it, but that on the\ncontrary every advance in the organisation of man kind into states in\nthe sense explained is a step towards it.\n\n    L. _THE RIGHT OF THE STATE TO PUNISH._\n\n176. (3) We come now to the third of the questions raised [l] in\nregard to the individual's right to free life, the question under\nwhat conditions that right may be forfeited; the question, in other\nwords, of the state's right of punishment. The right (i.e. the power\nsecured by social recognition) of free life in every man rests on\nthe assumed capacity in every man of free action contributory to\nsocial good ('free' in the sense of determined by the idea of a\ncommon good. Animals may and do contribute to the good of man, but\nnot thus 'freely'). This right on the part of associated men implies\nthe right on their part to prevent such actions as interfere with\nthe possibility of free action contributory to social good. This\nconstitutes the right of punishment, the right so far to use force\nupon a person (to treat him as an animal or a thing) as may be\nnecessary to save others from this interference.\n\n[1] [Above, sec. 156. RLN]\n\n177. Under what conditions a person needs to be thus dealt with,\nwhat particular actions on his part constitute such an interference,\nis a question which can only be answered when we have considered\nwhat powers in particular need to be secured to individuals or to\nofficials in order to the possibility of free action of the kind\ndescribed. Every such power is a right of which the violation, if\nintended as a violation of a right, requires a punishment, of which\nthe kind and amount must depend on the relative importance of the\nright and of the extent to which its general exercise is threatened.\nThus every theory of rights in detail must be followed by, or\nindeed implies, a corresponding theory of punishment in detail, a\ntheory which considers what particular acts are punishable, and how\nthey should be punished. The latter cannot precede the former: all\nthat can be done here is further to consider what general rules of\npunishment are implied in the principle on which we hold all right of\npunishment to rest, and how far in the actual practice of punishment\nthat principle has been realised.\n\n178. It is commonly asked whether punishment according to its proper\nnature is retributive or preventive or reformatory. The true answer\nis that it is and should be all three. The statement, however,\nthat the punishment of the criminal by the state is retributive,\nthough true in a sense that will be explained directly, yet so\nreadily lends itself to a misunderstanding, that it is perhaps best\navoided. It is not true in the sense that in legal punishment as it\nshould be there survives any element of private vengeance, of the\ndesire on the part of the individual who has received a hurt from\nanother to inflict an equivalent hurt in return. It is true that\nthe beginning of punishment by the state first appears in the form\nof a regulation of private vengeance, but it is not therefore to be\nsupposed that punishment by the state is in any way a continuation of\nprivate vengeance. It is the essence of the former to suppress and\nsupersede the latter, but it only does so gradually, just as rights\nin actuality are only formed gradually. Private vengeance belongs\nto the state of things in which rights are not as yet actualised;\nin the sense that the powers which it is for the social good that\na man should be allowed to exercise, are not yet secured to him\nby society. In proportion as they are actualised, the exercise of\nprivate vengeance must cease. A _right_ of private vengeance is an\nimpossibility; for, just so far as the vengeance is private, the\nindividual in executing it is exercising a power not derived from\nsociety nor regulated by reference to social good, and such a power\nis not a right. Hence the view commonly taken by writers of the\nseventeenth and eighteenth centuries implies an entire misconception\nof the nature of a right; the view, viz., that there first existed\nrights of self-defence and self-vindication on the part of\nindividuals in a state of nature, and that these came to be devolved\non a power representing all individuals, so that the state's right\nof using force against those men who use or threaten force against\nother men, is merely the sum or equivalent of the private rights\nwhich individuals would severally possess if there were no public\nequivalent for them. This is to suppose that to have been a right\nwhich in truth, under the supposed conditions, would merely have been\nanimal impulse and power, and public right (which is a pleonasm, for\nall right is public) to have resulted from the combination of these\nanimal impulses and powers: it is to suppose that from a state of\nthings in which 'homo homini lupus' by mere combination of wolfish\nimpulses, there could result the state of things in which 'homo\nhomini deus.'\n\n179. In a state of things in which private vengeance for hurt\ninflicted was the universal practice, there could be no rights at\nall. In the most primitive society in which rights can exist, it\nmust at least within the limits of the family be suppressed by\nthat authority of the family or its head which first constitutes\nrights. In such a society it is only on the members of another\nfamily that a man may retaliate at pleasure a wrong done to him, and\nthen the vengeance is not, strictly speaking, taken by individual\nupon individual, though individuals may be severally the agent and\npatient of it, but by family upon family. Just because there is as\nyet no idea of a state independent of ties of birth, much less of\na universal society from relation to which a man derives rights,\nthere is no idea of rights attaching to him as a citizen or as a\nman, but only as a member of a family. That social right, which is\nat once a right of society over the individual, and a right which\nsociety communicates and secures to the individual, appears, so far,\nonly as a control exercised by the family over its members in their\ndealings with each other, as an authorisation which it gives them in\nprosecuting their quarrels with members of another family, and at the\nsame time to a certain extent as a limitation on the manner in which\nfeuds between families may be carried on, a limitation generally\ndependent on some religious authority equally recognised by the\nfamilies at feud.\n\n180. From this state of things it is a long step to the r\u00e9gime of\nlaw in a duly constituted state. Under it the arm of the state alone\nis the organ through which force may be exercised on the individual;\nthe individual is prohibited from averting violence by violence,\nexcept so far as is necessary for the immediate protection of life,\nand altogether from avenging wrong done to him, on the understanding\nthat the society, of which he is an organ and from which he derives\nhis rights, being injured in every injury to him, duly protects him\nagainst injury, and when it fails to prevent such injury from being\ndone, inflicts such punishment on the offender as is necessary for\nfuture protection. But the process from the one state of things to\nthe other, though a long one, consists in the further development of\nthat social right [1] which properly speaking was the only right the\nindividual ever had, and from the first, or ever since a permanent\nfamily tie existed, was present as a qualifying and restraining\nelement in the exercise of private vengeance so far as that exercise\npartook at all in the nature of a right. The process is not a\ncontinuance of private vengeance under altered forms, but a gradual\nsuppression of it by the fuller realisation of the higher principle\nwhich all along controlled it.\n\n[1] 'Social right,' i.e. right belonging to a society of persons\nrecognising a common good, and belonging through membership of the\nsociety to the several persons constituting it. The society to which\nthe right belongs, is in principle or possibility a society of all\nmen as rendered capable of free intercourse with each other by the\norganisation of the state. Actually at first it is only this or\nthat family; then some association of families; finally the state,\nas including all other forms of association, reconciling the rights\nwhich arise out of them, and thus the most perfect medium through\nwhich the individual can contribute to the good of mankind and\nmankind to his.\n\n181. But it will be asked, how upon this view of the nature\nof punishment as inflicted by the state it can be considered\nretributory. If no private vengeance, no vengeance of the injured\nindividual, is involved in punishment, there can be no vengeance in\nit at all. The conception of vengeance is quite inappropriate to the\naction of society or the state on the criminal. The state cannot be\nsupposed capable of vindictive passion. Nor, if the essence of crime\nis a wrong done to society, does it admit of retaliation upon the\nperson committing it. A hurt done to an individual can be requited by\nthe infliction of a like hurt upon the person who has done it; but no\nequivalent of wrong done to society can be paid back to the doer of\nit.\n\n182. It is true that there is such a thing as a national desire\nfor revenge [1] (France and Germany): and, if a state = a nation\norganised in a certain way, why should it not be 'capable of\nvindictive passion'? No doubt there is a unity of feeling among the\nmembers of a nation which makes them feel any loss of strength, real\nor apparent, sustained by the nation in its corporate character, as\na hurt or disgrace to themselves, which they instinctively desire to\nrevenge. The corporate feeling is so strong that individuals feel\nthemselves severally hurt in the supposed hurt of the nation. But\nwhen it is said that a crime is an offence against the state, it is\nnot meant that the body of persons forming the nation feel any hurt\nin the sense in which the person robbed or wounded does, such a hurt\nas excites a natural desire for revenge. What is meant is that there\nis a violation of a system of rights which the nation has, no doubt,\nan interest in maintaining, but a purely social interest, quite\ndifferent from the egoistic interest of the individual of which the\ndesire for vengeance is a form. A nation is capable of vindictive\nfeeling, but not so a nation as acting through the medium of a\nsettled, impartial, general law for the maintenance of rights, and\nthat is what we mean when we talk of the state as that against which\ncrimes are committed and which punishes them.\n\n[1] 'Happy shall he be that rewardeth thee as thou hast served us.'\n\n183. It is true that when a crime of a certain sort, e.g. a\ncold-blooded murder, has been committed, a popular sympathy with\nthe sufferer is excited, which expresses itself in the wish to\n'serve out' the murderer. This has some resemblance to the desire\nfor personal revenge, but is really quite different, because not\negoistic. Indignation against wrong done to another has nothing in\ncommon with a desire to revenge a wrong done to oneself. It borrows\nthe language of private revenge, just as the love of God borrows the\nlanguage of sensuous affection. Such indignation is inseparable from\nthe interest in social well-being, and along with it is the chief\nagent in the establishment and maintenance of legal punishment. Law\nindeed is necessarily general, while indignation is particular in its\nreference; and accordingly the treatment of any particular crime,\nso far as determined by law, cannot correspond with the indignation\nwhich the crime excites; but the law merely determines the general\ncategory under which the crime falls, and fixes certain limits to\nthe punishment that may be inflicted under that category. Within\nthose limits discretion is left to the judge as to the sentence that\nhe passes, and his sentence is in part influenced by the sort of\nindignation which in the given state of public sentiment the crime\nis calculated to excite; though generally much more by his opinion\nas to the amount of terror required for the prevention of prevalent\ncrime. Now what is it in punishment that this indignation demands? If\nnot the sole foundation of public punishment, it is yet inseparable\nfrom that public interest, on which the system of rights, with the\ncorresponding system of punishments protective of rights, depends.\nIn whatever sense then this indignation demands retribution in\npunishment, in that sense retribution would seem to be a necessary\nelement in punishment. It demands retribution in the sense of\ndemanding that the criminal should have his due, should be dealt with\naccording to his deserts, should be punished justly.\n\n184. This is quite a different thing from an equivalence between\nthe amount of suffering inflicted by the criminal and that which\nhe sustains in punishment. The amount of suffering which is caused\nby any crime is really as incalculable as that which the criminal\nendures in punishment, whatever the punishment. It is only in the\ncase of death for murder that there is any appearance of equivalence\nbetween the two sufferings, and in this case the appearance is quite\nsuperficial. The suffering involved in death depends almost entirely\non the circumstances, which are absolutely different in the case\nof the murdered man and in that of the man executed for murder.\nWhen a man is imprisoned with hard labour for robbery, there is not\neven an appearance of equivalence of suffering between the crime\nand the punishment. In what then does the justice of a punishment,\nor its correspondence with the criminal's deserts consist? It will\nnot do to say that these terms merely represent the result of an\nassociation of ideas between a crime and the penalty which we are\naccustomed to see inflicted on it; that society has come to attach\ncertain penalties to certain actions as a result of the experience\n(1) of suffering and loss caused by those acts, and (2) of the kind\nof suffering of which the expectation will deter men from doing them;\nand that these penalties having become customary, the onlookers and\nthe criminal himself, when one of them is inflicted, feel that he has\ngot what was to be expected, and call it his due or desert or a just\npunishment. If this were the true account of the matter, there would\nbe nothing to explain the difference between the emotion excited by\nthe spectacle of a just punishment inflicted, or the demand that it\nshould be inflicted, on the one side, and on the other that excited\nby the sight of physical suffering following according to the usual\ncourse of things upon a physical combination of circumstances, or the\nexpectation that such suffering will follow. If it is said that the\ndifference is explained by the fact that in the one case both the\nantecedent (the criminal act) and the consequent represent voluntary\nhuman agency, while in the other they do not, we reply, Just so, but\nfor that reason the conception of a punishment as just differs wholly\nfrom any conception of it that could result either from its being\ncustomary, or from the infliction of such punishment having been\ncommonly found a means for protecting us against hurt.\n\n185. The idea of punishment implies on the side of the person\npunished at once a capacity for determination by the conception of a\ncommon or public good, or in other words a practical understanding of\nthe nature of rights as founded on relations to such public good, and\nan actual violation of a right or omission to fulfil an obligation,\nthe right or obligation being one of which the agent might have\nbeen aware and the violation or omission one which he might have\nprevented. On the side of the authority punishing, it implies equally\na conception of right founded on relation to public good, and one\nwhich, unlike that on the part of the criminal, is realised in act; a\nconception of which the punitive act, as founded on a consideration\nof what is necessary for the maintenance of rights, is the logical\nexpression. A punishment is unjust if either element is absent; if\neither the act punished is not a violation of known rights or an\nomission to fulfil known obligations of a kind which the agent might\nhave prevented, or the punishment is one that is not required for\nthe maintenance of rights, or (which comes to the same thing), if\nthe ostensible rights for the maintenance of which the punishment\nis required are not real rights, are not liberties of action or\nacquisition which there is any real public interest in maintaining.\n\n186. When the specified conditions of just punishment are fulfilled,\nthe person punished himself recognises it as just, as his due or\ndesert, and it is so recognised by the onlooker who thinks himself\ninto the situation. The criminal, being susceptible to the idea of\npublic good, and through it to the idea of rights, though this idea\nhas not been strong enough to regulate his actions, sees in the\npunishment its natural expression. He sees that the punishment is his\nown act returning on himself, in the sense that it is the necessary\noutcome of his act in a society governed by the conception of rights,\na conception which he appreciates and to which he does involuntary\nreverence.\n\nIt is the outcome of his act, or his act returning upon himself, in\na different way from that in which a man's act returns on himself\nwhen, having misused his body, he is visited according to physical\nnecessity by painful consequences. The cause of the suffering which\nthe act entails in the one case is the relation of the act to a\nsociety governed by the conception of rights; in the other it is not.\nFor that reason, the painful consequence of the act to the doer in\nthe one case is, in the other is not, properly a punishment. We do\nindeed commonly speak of the painful consequences of imprudent or\nimmoral acts ('immoral' as distinct from 'illegal') as a punishment\nof them, but this is either metaphorically or because we think of\nthe course of the world as regulated by a divine sovereign, whom we\nconceive as a maintainer of rights like the sovereign of a state.\nWe may think of it as divinely regulated, and so regulated with a\nview to the realisation of moral good, but we shall still not be\nwarranted in speaking of the sufferings which follow in the course of\nnature upon certain kinds of conduct as punishments, according to the\ndistinctive sense in which crime is punished, unless we suppose the\nmaintenance of rights to be the object of the moral government of the\nworld,--which is to put the cart before the horse; for, as we have\nseen, rights are relative to morality, not morality to rights (the\nground on which certain liberties of action and acquisition should\nbe guaranteed as rights being that they are conditions of the moral\nperfection of society).\n\nWhile there would be reason, then, as against those who say that the\npunishment of crime is merely preventive, in saying that it is also\nretributive, if the needed correction of the 'merely preventive'\ndoctrine could not be more accurately stated, it would seem that\nthe truth can be more accurately stated by the proposition that\npunishment is not justified unless it is just, and that it is not\njust unless the act punished is an intentional violation of real\nright or neglect of real obligation which the agent could have\navoided (i.e. unless the agent knowingly and by intentional act\ninterferes with some freedom of action or acquisition which there is\na public interest in maintaining), and unless the future maintenance\nof rights requires that the criminal be dealt with as he is in the\npunishment.[1]\n\n[1] The conceptions of the just and of justice implied in this\nstatement of the conditions of just punishment may be expressed\nbriefly as follows. 'The just' = that complex of social conditions\nwhich for each individual is necessary to enable him to realise his\ncapacity of contributing to social good. 'Justice' is the habit of\nmind which leads us to respect those conditions in dealing with\nothers,--not to interfere with them so far as they already exist,\nand to bring them into existence so far as they are not found in\nexistence.\n\n187. It is clear, however, that this requirement, that punishment of\ncrime should be just, may be covered by the statement that in its\nproper nature it is preventive, if the nature of that which is to be\nprevented by it is sufficiently defined. Its proper function is, in\nthe interest of rights that are genuine (in the sense explained), to\nprevent actions of the kind described by associating in the mind of\nevery possible doer of them a certain terror with the contemplation\nof the act,--such terror as is necessary on the whole to protect the\nrights threatened by such action. The whipping of an ill-behaved\ndog is preventive, but not preventive in the sense in which the\npunishment of crime is so, because (1) the dog's ill conduct is not\nan intentional violation of a right or neglect of a known obligation,\nthe dog having no conception of right or obligation, and (2) for\nthe same reason the whipping does not lead to the association of\nterror in the minds of other dogs with the violation of rights and\nneglect of obligations. To shoot men down who resist a successful\n_coup d'\u00e9tat_ may be effectually preventive of further resistance\nto the government established by the _coup d'\u00e9tat_, but it does not\nsatisfy the true idea of punishment, because the terror produced by\nthe massacre is not necessary for the protection of genuine rights,\nrights founded on public interest. To hang men for sheep-stealing,\nagain, does not satisfy the idea; because, though it is a genuine\nright that sheep-stealing violates, in a society where there was\nany decent reconciliation of rights no such terror as is caused\nby the punishment of death would be required for the protection\nof the right. It is because the theory that punishment is 'merely\npreventive' favours the notion that the repetition of any action\nwhich any sufficient body of men find inconvenient may justifiably\nbe prevented by any sort of terror that may be convenient for the\npurpose, that it requires to be guarded by substituting for the\nqualifying 'merely' a statement of what it is which the justifiable\npunishment prevents and why it prevents it.\n\n188. But does our theory, after all has been said about the\nwrongness of punishment that is not just, afford any standard for\nthe apportionment of just punishment, any criterion of the amount of\ninterference with a criminal's personal rights that is appropriate to\nhis crime, except such as is afforded by a prevalent impression among\nmen as to what is necessary for their security? Can we construe it so\nas to afford such a criterion, without at the same time condemning\na great deal of punishment which yet society could be never brought\nto dispense with? Does it really admit of being applied at all in\nthe presence of the admitted impossibility of ascertaining the\ndegree of moral guilt of criminals, as depending on their state of\ncharacter or habitual motives? How, according to it, can we justify\npunishments inflicted in the case of 'culpable negligence,' e.g. when\nan engine-driver, by careless driving, for which we think very little\nthe worse of him, is the occasion of a bad accident, and is heavily\npunished in consequence?\n\n189. It is true that there can be no _a priori_ criterion of just\npunishment, except of an abstract and negative kind. We may say that\nno punishment is just, unless the rights which it serves to protect\nare powers on the part of individuals or corporations of which the\ngeneral maintenance is necessary to the well-being of society on\nthe whole, and unless the terror which the punishment is calculated\nto inspire is necessary for their maintenance. For a positive and\ndetailed criterion of just punishment, we must wait till a system\nof rights has been established in which the claims of all men, as\nfounded on their capacities for contributing to social well-being,\nare perfectly harmonised, and till experience has shown the degree\nand kind of terror with which men must be affected in order to the\nsuppression of the anti-social tendencies which might lead to the\nviolation of such a system of rights. And this is perhaps equivalent\nto saying that no complete criterion of just punishment can be\narrived at till punishment is no longer necessary; for the state of\nthings supposed could scarcely be realised without bringing with it\nan extinction of the tendencies which state-punishment is needed to\nsuppress. Meanwhile there is no method of approximation to justice\nin punishment but that which consists in gradually making the system\nof established rights just, i.e. in harmonising the true claims of\nall men, and in discovering by experience the really efficient means\nof restraining tendencies to violation of rights. An intentional\nviolation of a right must be punished, whether the right violated\nis one that should be a right or no, on the principle that social\nwell-being suffers more from violation of any established right,\nwhatever the nature of the right, than from the establishment as a\nright of a power which should not be so established; and it can only\nbe punished in the way which for the time is thought most efficient\nby the maintainers of law for protecting the right in question by\nassociating terror with its violation. This, however, does not\nalter the moral duty, on the part of the society authorising the\npunishment, to make its punishments just by making the system of\nrights which it maintains just. The justice of the punishment depends\non the justice of the general system of rights; not merely on the\npropriety with reference to social well-being of maintaining this\nor that particular right which the crime punished violates, but on\nthe question whether the social organisation in which a criminal has\nlived and acted is one that has given him a fair chance of not being\na criminal.\n\n190. We are apt to think that the justice of a punishment depends on\nsome sort of equality between its magnitude and that of the crime\npunished, but this notion arises from a confusion of punishment as\ninflicted by the state for a wrong done to society with compensation\nto the individual for damage done him. Neither a crime nor its\npunishment admits of strictly quantitative measurement. It may be\nsaid, indeed, that the greater the crime the heavier should be its\npunishment, but this is only true if by the 'heavier punishment' is\nunderstood that with which most terror is associated in the popular\nimagination, and if the conception of the 'greater crime' is taken on\nthe one hand to exclude any estimation of the degree of moral guilt,\nand, on the other hand, to be determined by an estimate not only of\nthe importance in the social system of the right violated by the\ncrime, but of the amount of terror that needs to be associated with\nthe crime in the general apprehension in order to its prevention. But\nwhen its terms are thus understood, the statement that the greater\nthe crime the heavier should be its punishment, becomes an identical\nproposition. It amounts to this, that the crime which requires most\nterror to be associated with it in order to its prevention should\nhave most terror thus associated with it.\n\n191. But why do the terms 'heavier punishment' and 'greater crime'\nneed to be thus understood? Why should not the 'greater crime' be\nunderstood to mean the crime implying most moral wickedness, or\npartly this, partly the crime which violates the more important kind\nof right? Why should a consideration of the amount of terror that\nneeds to be associated with it in order to its prevention enter into\nthe determination of the 'greater crime' at all? Why again should\nnot the 'heavier punishment' mean simply that in which the person\npunished actually suffers most pain? Why should it be taken to mean\nthat with which most terror is associated upon the contemplation?\nIn short, is not the proposition in question at once true and\nsignificant in the sense that the crime which implies the most moral\ndepravity, or violates the most important right (such as the right to\nlife), or which does both, should be visited with the punishment that\ninvolves most pain to the sufferer?\n\n192. The answer is: As regards heaviness of punishment, it is not in\nthe power of the state to regulate the amount of pain which it causes\nto the person whom it punishes. If it could only punish justly by\nmaking this pain proportionate in each case to the depravity implied\nin the crime, it could not punish justly at all. The amount of pain\nwhich any kind of punishment causes to the particular person depends\non his temperament and circumstances, which neither the state nor\nits agent, the judge, can ascertain. But if it could be ascertained,\nand if (which is equally impossible) the amount of depravity implied\nin each particular crime could be ascertained likewise in order to\nmake the pain of the punishment proportionate to the depravity,\na different punishment would have to be inflicted in each case\naccording to the temperament and circumstances of the criminal. There\nwould be an end to all general rules of punishment.\n\n193. In truth, however, the state in its capacity as the sustainer\nof rights (and it is in this capacity that it punishes) has nothing\nto do with the amount of moral depravity in the criminal, and the\nprimary reference in punishment, as inflicted by the state, is not\nto the effect of the punishment on the person punished but to its\neffect on others. The considerations determining its amount should\nbe prospective rather than retrospective. In the crime a right has\nbeen violated. No punishment can undo what has been done, or make\ngood the wrong to the person who has suffered. What it can do is\nto make less likely the doing of a similar wrong in other cases.\nIts object, therefore, is not to cause pain to the criminal for the\nsake of causing it, nor chiefly for the sake of preventing him,\nindividually, from committing the crime again, but to associate\nterror with the contemplation of the crime in the mind of others\nwho might be tempted to commit it. And this object, unlike that of\nmaking the pain of the punishment commensurate with the guilt of the\ncriminal, is in the main attainable. The effect of the spectacle\nof punishment on the onlooker is independent of any minute inquiry\ninto the degree to which it affects the particular criminal. The\nattachment of equal penalties to offences that are alike in respect\nof the importance of the rights which they violate, and in respect\nof the ordinary temptations to them, will, on the whole, lead to\nthe association of an equal amount of terror with the prospect of\ncommitting like offences in the public mind. When the circumstances,\nindeed, of two criminals guilty of offences alike in both the above\nrespects are very greatly and obviously different, so different as to\nmake the operation of the same penalty upon them very conspicuously\ndifferent, then the penalty may be varied without interfering with\nits terrifying effect on the public mind. We will suppose e.g. that\na fraud on the part of a respectable banker is equivalent, both in\nrespect of the rights which it violates and of the terror needed to\nprevent the recurrence of like offences, to a burglary. It will not\nfollow because the burglary is punished by imprisonment with hard\nlabour that hard labour should be inflicted on the fraudulent banker\nlikewise. The infliction of hard labour is in everyone's apprehension\nso different to the banker from what it is to the burglar, that its\ninfliction is not needed in order to equalise the terror which the\npopular imagination associates with the punishment in the two cases.\n\n194. On the same principle may be justified the consideration of\nextenuating circumstances in the infliction of punishment. In fact,\nwhether under that name or another, they are taken account of in\nthe administration of criminal law among all civilised nations.\n'Extenuating circumstances' is not a phrase in use among our\nlawyers, but in fact the consideration of them does constantly, with\nthe approval of the judge, convert what would otherwise have been\nconviction for murder into conviction for manslaughter, and when\nthere has been conviction for murder, leads to the commutation of\nthe sentence. This fact is often taken to show that the degree of\nmoral depravity on the part of the criminal, the question of his\ncharacter and motive, is and must be considered in determining the\npunishment due to him. In truth, however, 'extenuating circumstances'\nmay very well make a difference in the kind of terror which needs\nto be associated with a crime in order to the future protection of\nrights, and under certain conditions the consideration of them may be\nsufficiently justified on this ground. Suppose a theft by a starving\nman, or a hare shot by an angry farmer whose corn it is devouring.\nThese are crimes, but crimes under such extenuating circumstances\nthat there is no need to associate very serious terror with them in\norder to the protection of the essential rights of property. In the\nlatter case the right which the farmer violates is one which perhaps\nmight be disallowed altogether without interference with any right\nwhich society is interested in maintaining. In the former case the\nright violated is a primary and essential one; one which, where there\nare many starving people, is in fact pretty sure to be protected by\nthe most stringent penalties. And it might be argued that on the\nprinciple stated this is as it should be; that, so far from the\nhunger of the thief being a reason for lightening his punishment, it\nis a reason for increasing it, in order that the special temptation\nto steal when far gone in hunger may, if possible, be neutralised by\na special terror associated with the commission of the crime under\nthose conditions. But this would be a one-sided application of the\nprinciple. It is not the business of the state to protect one order\nof rights specially, but all rights equally. It ought not therefore\nto protect a certain order of rights by associating special terror\nwith the violation of them, when the special temptation to their\nviolation itself implies a violation of right in the persons of\nthose who are so tempted, as is the case when a general danger to\nproperty arises from the fact that many people are on the edge of\nstarvation. The attempt to do so is at once ineffectual and diverts\nattention from the true way of protecting the endangered right, which\nis to prevent people from falling into a state of starvation. In\nany tolerably organised society the condition of a man, ordinarily\nhonest and industrious, who is driven to theft by hunger, will be\nso abnormal that very little terror needs to be associated with the\ncrime as so committed in order to maintain the sanctity of property\nin the general imagination. Suppose again a man to be killed in a\nquarrel arising out of his having tampered with the fidelity of his\nneighbour's wife. In such a case 'extenuating circumstances' may\nfairly be pleaded against the infliction of the extremest penalty,\nbecause the extremest terror does not need to be associated with\nhomicide, as committed under such conditions, in order to the general\nprotection of human life, and because the attempt so to associate it\nwould tend, so far as successful, to weaken the general sense of the\nwrong--the breach of family right--involved in the act which, in the\ncase supposed, provokes the homicide.\n\n195. 'After all,' it may be said, 'this is a far-fetched way of\nexplaining the admission of extenuating circumstances as modifying\nthe punishment of crime. Why so strenuously avoid the simpler\nexplanation, that extenuating circumstances are taken into account\nbecause they are held to modify the moral guilt of the crime? Is not\ntheir recognition a practical proof that the punishment of a crime by\nthe state represents the moral disapproval of the community? Does it\nnot show that, however imperfectly the amount of punishment inflicted\non a crime may in fact correspond to its moral wickedness, it is\ngenerally felt that it ought to do so?'\n\n196. The answer is that there are two reasons for holding that\nthe state neither can nor should attempt to adjust the amount of\npunishment which it inflicts on a crime to the degree of moral\ndepravity which the crime implies. (1) That the degree of moral\ndepravity implied in any crime is unascertainable. It depends on the\nmotive of the crime, and on this as part of the general character of\nthe agent; on the relation in which the habitual set of his character\nstands to the character habitually set on the pursuit of goodness. No\none can ascertain this in regard to himself. He may know that he is\nalways far from being what he ought to be; that one particular action\nof his represents on the whole, with much admixture of inferior\nmotives; the better tendency; another, with some admixture of better\nmotives, the worse. But any question in regard to the degree of\nmoral goodness or badness in any action of his own or of his most\nintimate friend is quite unanswerable. Much less can a judge or jury\nanswer such a question in regard to an unknown criminal. We may be\nsure indeed that any ordinary crime--nay, perhaps even that of the\n'disinterested rebel'--implies the operation of some motive which\nis morally bad, for though it is not necessarily the worst men who\ncome into conflict with established rights, it probably never can be\nthe best; but the degree of badness implied in such a conflict in\nany particular case is quite beyond our ken, and it is this degree\nthat must be ascertained if the amount of punishment which the state\ninflicts is to be proportionate to the moral badness implied in the\ncrime. (2) The notion that the state should, if it could, adjust\nthe amount of punishment which it inflicts on a crime to the moral\nwickedness of the crime, rests on a false view of the relation of\nthe state to morality. It implies that it is the business of the\nstate to punish wickedness, as such. But it has no such business. It\ncannot undertake to punish wickedness, as such, without vitiating\nthe disinterestedness of the effort to escape wickedness, and thus\nchecking the growth of a true goodness of the heart in the attempt to\npromote a goodness which is merely on the surface. This, however, is\nnot to be understood as meaning that the punishment of crime serves\nno moral purpose. It does serve such a purpose, and has its value\nin doing so, but only in the sense that the protection of rights,\nand the association of terror with their violation, is the condition\nantecedent of any general advance in moral well-being.\n\n197. The punishment of crime, then, neither is, nor can, nor should\nbe adjusted to the degree of moral depravity, properly so called,\nwhich is implied in the crime. But it does not therefore follow that\nit does not represent the disapproval which the community feels for\nthe crime. On the whole, making allowance for the fact that law\nand judicial custom vary more slowly than popular feeling, it does\nrepresent such disapproval. And the disapproval may fitly be called\nmoral, so far as that merely means that it is a disapproval relating\nto voluntary action. But it is a disapproval founded on a sense of\nwhat is necessary for the protection of rights, not on a judgment\nof good and evil of that kind which we call conscience when it is\napplied to our own actions, and which is founded on an ideal of\nmoral goodness with which we compare our inward conduct ('inward,'\nas representing motives and character). It is founded essentially on\nthe outward aspect of a man's conduct, on the view of it as related\nto the security and freedom in action and acquisition of other\nmembers of society. It is true that this distinction between the\noutward and inward aspects of conduct is not present to the popular\nmind. It has not been recognised by those who have been the agents\nin establishing the existing law of crimes in civilised nations.\nAs the state came to control the individual or family in revenging\nhurts, and to substitute its penalties for private vengeance, rules\nof punishment came to be enacted expressive of general disapproval,\nwithout any clear consciousness of what was the ground of the\ndisapproval. But in fact it was by what have been just described as\nthe outward consequences of conduct that a general disapproval of\nit was ordinarily excited. Its morality in the stricter or inward\nsense was not matter of general social consideration. Thus in the\nmain it has been on the ground of its interference with the general\nsecurity and freedom in action and acquisition, and in proportion\nto the apprehension excited by it in this respect, that conduct has\nbeen punished by the state. Thus the actual practice of criminal\nlaw has on the whole corresponded to its true principle. So far as\nthis principle has been departed from, it has not been because the\nmoral badness of conduct, in the true or inward sense, has been\ntaken account of in its treatment as a crime, for this has not been\ngenerally contemplated at all, but because 'religious' considerations\nhave interfered. Conduct which did not call for punishment by the\nstate as interfering with any true rights (rights that should be\nrights) has been punished as 'irreligious.' This, however, did not\nmean that it was punished on the ground of moral badness, properly\nso called. It meant that its consequences were feared either as\nlikely to weaken the belief in some divine authority on which the\nestablished system of rights was supposed to rest, or as likely to\nbring evil on the community through provoking the wrath of some\nunseen power.\n\n198. This account of the considerations which have regulated the\npunishment of crimes explains the severity with which 'criminal\nnegligence' is in some cases punished, and that severity is justified\nby the account given of the true principle of criminal law, the\nprinciple, viz., that crime should be punished according to the\nimportance of the right which it violates, and to the degree of\nterror which in a well-organised society needs to be associated with\nthe crime in order to the protection of the right. It cannot be held\nthat the carelessness of an engine-driver who overlooks a signal\nand causes a fatal accident, implies more moral depravity than is\nimplied in such negligence as all of us are constantly guilty of.\nConsidered with reference to the state of mind of the agent, it is\non a level with multitudes of actions and omissions which are not\npunished at all. Yet the engine-driver would be found guilty of\nmanslaughter and sentenced to penal servitude. The justification is\nnot to be found in distinctions between different kinds of negligence\non the part of different agents, but in the effect of the negligence\nin different cases upon the rights of others. In the case supposed,\nthe most important of all rights, the right to life, on the part\nof railway passengers depends for its maintenance on the vigilance\nof the drivers. Any preventible failure in such vigilance requires\nto have sufficient terror associated with it in the mind of other\nengine-drivers to prevent the recurrence of a like failure in\nvigilance. Such punishment is just, however generally virtuous the\nvictim of it is, because it is necessary to the protection of rights\nof which the protection is necessary to social well-being; and the\nvictim of it, in proportion to his sense of justice, which means his\nhabit of practically recognising true rights, will recognise it as\njust.\n\n199. On this principle crimes committed in drunkenness must be dealt\nwith. Not only is all depravity of motive specially inapplicable to\nthem, since the motives actuating a drunken man often seem to have\nlittle connection with his habitual character; it is not always the\ncase that a crime committed in drunkenness is even intentional.\nWhen a man in a drunken rage kills another, he no doubt intends\nto kill him, or at any rate to do him 'grievous bodily harm,' and\nperhaps the association of great penal terror with such an offence\nmay tend to restrain men from committing it even when drunk; but\nwhen a drunken mother lies on her child and smothers it, the hurt\nis not intentional but accidental. The drunkenness, however, is not\naccidental, but preventible by the influence of adequate motives.\nIt is therefore proper to treat such a violation of right, though\ncommitted unknowingly, as a crime, and to associate terror with it\nin the popular imagination, in order to the protection of rights by\nmaking people more careful about getting drunk, about allowing or\npromoting drunkenness, and about looking after drunken people. It is\nunreasonable, however, to do this and at the same time to associate\nso little terror, as in practice we do, with the promotion of\ndangerous drunkenness. The case of a crime committed by a drunkard is\nplainly distinguishable from that of a crime committed by a lunatic,\nfor the association of penal terror with the latter would tend\nneither to prevent a lunatic from committing a crime nor people from\nbecoming lunatics.\n\n200. The principle above stated, as that according to which\npunishment by the state should be inflicted and regulated, also\njustifies a distinction between crimes and civil injuries, i.e.\nbetween breaches of right for which the state inflicts punishment\nwithout redress to the person injured, and those for which it\nprocures or seeks to procure redress to the person injured without\npunishment of the person causing the injury. We are not here\nconcerned with the history of this distinction (for which see Maine,\n_Ancient Law_, chap. x, and W.E. Hearn, _The Aryan Household_, chap.\nxix), nor with the question whether many breaches of right now among\nus treated as civil injuries ought not to be treated as crimes,\nbut with the justification that exists for treating certain kinds\nof breach of right as cases in which the state should interfere\nto procure redress for the person injured, but not in the way of\ninflicting punishment on the injurer until he wilfully resists the\norder to make redress. The principle of the distinction as ordinarily\nlaid down, viz. that civil injuries 'are violations of rights when\nconsidered in reference to the injury sustained by the individual,'\nwhile crimes are 'violations of rights when considered in reference\nto their evil tendency as regards the community at large' (Stephen,\nBook V, chap, i), is misleading; for if the well-being of the\ncommunity did not suffer in the hurt done to the individual, that\nhurt would not be a violation of a right in the true sense at all,\nnor would the community have any ground for insisting that the hurt\nshall be redressed, and for determining the mode in which it shall\nbe redressed. A violation of right cannot in truth be considered\nmerely in relation to injury sustained by an individual, for, thus\nconsidered, it would not be a violation of right. It may be said that\nthe state is only concerned in procuring redress for civil injuries,\nbecause, if it left an individual to procure redress in his own way,\nthere would be no public peace. But there are other and easier ways\nof preventing fighting than by procuring redress of wrong. We prevent\nour dogs from fighting, not by redressing wrongs which they sustain\nfrom each other (of wrongs as of rights they are in the proper sense\nincapable), but by beating them or tying them up. The community would\nnot keep the peace by procuring redress for hurt or damage sustained\nby individuals, unless it conceived itself as having interest\nin the security of individuals from hurt and damage, unless it\nconsidered the hurt done to individuals as done to itself. The true\njustification for treating some breaches of right as cases merely for\nredress, others as cases for punishment, is that, in order to the\ngeneral protection of rights, with some it is necessary to associate\na certain terror, with others it is not.\n\n201. What then is the general ground of distinction between those\nwith which terror does, and those with which it does not, need to\nbe associated? Clearly it is purposeless to associate terror with\nbreaches of right in the case where the breaker does not know that\nhe is violating a right, and is not responsible for not knowing it.\nNo association of terror with such a breach of right can prevent men\nfrom similar breaches under like conditions. In any case, therefore,\nin which it is, to begin with, open to dispute whether a breach of\nright has been committed at all, e.g. when it is a question whether\na contract has been really broken, owing to some doubt as to the\ninterpretation of the contract or its application to a particular\nset of circumstances, or whether a commodity of which someone is\nin possession properly belongs to another,--in such a case, though\nthe judge finally decides that there has been a breach of right,\nthere is no ground for treating it as a crime or punishing it. If,\nin the course of judicial inquiry, it turns out that there has been\nfraud by one or other of the parties to the litigation, a criminal\nprosecution, having punishment, not redress, for its object, should\nproperly supervene upon the civil suit, unless the consequences of\nthe civil suit are incidentally such as to amount to a sufficient\npunishment of the fraudulent party. Again, it is purposeless to\nassociate terror with a breach of obligation which the person\ncommitting it knows to be a breach, but of an obligation which he has\nno means of fulfilling, e.g. non-payment of an acknowledged debt by\na man who, through no fault of his own, is without means of paying\nit. It is only in cases of one or other of the above kinds,--cases\nin which the breach of right, supposing it to have been committed,\nhas presumably arisen either from inability to prevent it or from\nignorance of the existence of the right,--that it can be held as an\nabsolute rule to be no business of the state to interfere penally but\nonly in the way of restoring, so far as possible, the broken right.\n\n202. But there are many cases of breach of right which can neither\nbe definitely reduced to one of the above kinds, nor distinguished\nfrom them by any broad demarcation; cases in which the breaker of a\nright has been ignorant of it, because he has not cared to know, or\nin which his inability to fulfil it is the result of negligence or\nextravagance. Whether these should be treated penally or no, will\ndepend partly on the seriousness of the wrong done through avoidable\nignorance or negligence, partly on the sufficiency of the deterrent\neffect incidentally involved in the civil remedy. In the case e.g. of\ninability to pay a debt through extravagance or recklessness, it may\nbe unnecessary and inadvisable to treat the breach of right penally,\nin consideration that it is indirectly punished by poverty and the\nloss of reputation incidental to bankruptcy, and the creditors\nshould not look to the state to protect them from the consequences\nof lending on bad security. The negligence of a trustee, again,\nmay be indirectly punished by his being obliged to make good the\nproperty lost through his neglect to the utmost of his means. This\nmay serve as a sufficiently deterrent example without the negligence\nbeing proceeded against criminally. Again, damage done to property\nby negligence is in England dealt with civilly, not criminally;\nand it may be held that in this case the liability to civil action\nis a sufficient deterrent. On the other hand, negligence which, as\nnegligence, is not really distinguishable from the above, is rightly\ntreated criminally when its consequences are more serious; e.g. that\nof the railway-servant whose negligence results in a fatal accident,\nthat of the bank-director who allows a misleading statement of\naccounts to be published, fraudulently perhaps in the eye of the\nlaw, but in fact negligently. As a matter of principle, no doubt,\nif intentional violation of the right of property is treated as\npenal equally with the violation of the right of life, the negligent\nviolation should be treated as penal in the one case as much as in\nthe other. But as the consequences of an action for damages may\nbe virtually though not ostensibly penal to the person proceeded\nagainst, it may be convenient to leave those negligences which do\nnot, like the negligence of a railway-servant, affect the most\nimportant rights, or do not affect rights on a very large scale as\ndoes that of a bank-director, to be dealt with by the civil process.\n\n203. The actual distinction between crimes and civil injuries in\nEnglish law is no doubt largely accidental. As the historians of law\npoint out, the civil process, having compensation, not punishment,\nfor its object, is the form which the interference of the community\nfor the maintenance of rights originally takes. The community,\nrestraining private vengeance, helps the injured person to redress,\nand regulates the way in which redress shall be obtained. This\nprocedure no doubt implies the conviction that the community is\nconcerned in the injury done to an individual, but it is only by\ndegrees that this conviction becomes explicit, and that the community\ncomes to treat all preventible breaches of right as offences against\nitself or its sovereign representative, i.e. as crimes or penal; in\nthe language of English law, as 'breaches of the king's peace.' Those\noffences are first so treated which happen to excite most public\nalarm, most fear for general safety (hence, among others, anything\nthought sacrilegious). In a country like England, where no code has\nbeen drawn up on general principles, the class of injuries that\nare treated penally is gradually enlarged as public alarm happens\nto be excited in particular directions, but it is largely a matter\nof accident how the classification of crimes on one side and civil\ninjuries on the other happens to stand at any particular time. [1]\n\n[1] See Markby, _Elements of Law_, chap. xi, especially note 1, p.\n243; and Austin, Lecture XXVII. Between crimes and civil injuries\nthe distinction, as it actually exists, is merely one of procedure\n(as stated by Austin, p. 518). The violation of right in one case is\nproceeded against by the method of indictment, in the other by an\n'action.' The distinction that in one case punishment is the object\nof the process, in the other redress, is introduced in order to\nexplain the difference of procedure; and to justify this distinction\nresort is had to the further distinction, that civil injury is\nconsidered to affect the individual merely, crime to affect the\nstate. But in fact the action for civil injury may incidentally have\na penal result (Austin, p 521), and if it had not, many violations\nof right now treated as civil injuries would have to be treated as\ncrimes. As an explanation therefore of the distinction between crimes\nand injuries as it stands, it is not correct to say that for the\nformer punishment is sought, for the latter merely redress. Nor for\nreasons already given is it true of any civil injury to say that it\naffects, or should be considered as affecting, injured individuals\n_merely_. The only distinction of principle is that between\nviolations of right which call for punishment and those which do\nnot; and those only do not call for punishment in some form or other\nwhich arise either from uncertainty as to the right violated, or from\ninability to prevent the violation.\n\n204. According to the view here taken, then, there is no direct\nreference in punishment by the state, either retrospective or\nprospective, to moral good or evil. The state in its judicial action\ndoes not look to the moral guilt of the criminal whom it punishes,\nor to the promotion of moral good by means of his punishment in\nhim or others. It looks not to virtue and vice but to rights and\nwrongs. It looks back to the wrong done in the crime which it\npunishes; not, however, in order to avenge it, but in order to the\nconsideration of the sort of terror which needs to be associated\nwith such wrong-doing in order to the future maintenance of rights.\nIf the character of the criminal comes into account at all, it\ncan only be properly as an incident of this consideration. Thus\npunishment of crime is preventive in its object; not, however,\npreventive of any or every evil and by any and every means, but\n(according to its idea or as it should be) _justly_ preventive\nof _injustice_; preventive of interference with those powers of\naction and acquisition which it is for the general well-being that\nindividuals should possess, and according to laws which allow those\npowers equally to all men. But in order effectually to attain its\npreventive object and to attain it justly, it should be reformatory.\nWhen the reformatory office of punishment is insisted on, the\nreference may be, and from the judicial point of view must be, not\nto the moral good of the criminal as an ultimate end, but to his\nrecovery from criminal habits as a means to that which is the proper\nand direct object of state-punishment, viz. the general protection\nof rights. The reformatory function of punishment is from this point\nof view an incident of its preventive function, as regulated by the\nconsideration of what is just to the criminal as well as to others.\nFor the fulfilment of this latter function, the great thing, as we\nhave seen, is by the punishment of an actual criminal to deter other\npossible criminals; but for the same purpose, unless the actual\ncriminal is to be put out of the way or locked up for life, it must\nbe desirable to reform him so that he may not be dangerous in future.\nNow when it is asked why he should not be put out of the way, it\nmust not be forgotten that among the rights which the state has to\nmaintain are included rights of the criminal himself. These indeed\nare for the time suspended by his action in violation of rights, but\nfounded as they are on the capacity for contributing to social good,\nthey could only be held to be finally forfeited on the ground that\nthis capacity was absolutely extinct.\n\n205. This consideration limits the kind of punishment which the\nstate may justly inflict. It ought not in punishing to sacrifice\nunnecessarily to the maintenance of rights in general what might be\ncalled the reversionary rights of the criminal, rights which, if\nproperly treated, he might ultimately become capable of exercising\nfor the general good. Punishment therefore either by death or by\nperpetual imprisonment is justifiable only on one of two grounds;\neither that association of the extremest terror with certain actions\nis under certain conditions necessary to preserve the possibility of\na social life based on the observance of rights, or that the crime\npunished affords a presumption of a permanent incapacity for rights\non the part of the criminal. The first justification may be pleaded\nfor the executions of men concerned in treasonable outbreaks, or\nguilty of certain breaches of discipline in war (on the supposition\nthat the war is necessary for the safety of the state and that such\npunishments are a necessary incident of war). Whether the capital\npunishment is really just in such cases must depend, not only on\nits necessity as an incident in the defence of a certain state,\nbut on the question whether that state itself is fulfilling its\nfunction as a sustainer of true rights. For the penalty of death\nfor murder both justifications may be urged. It cannot be defended\non any other ground, but it may be doubted whether the presumption\nof permanent incapacity for rights is one which in our ignorance we\ncan ever be entitled to make. As to the other plea, the question is\nwhether, with a proper police system and sufficient certainty of\ndetection and conviction, the association of this extremest terror\nwith the murderer is necessary to the security of life. Where the\ndeath-penalty, however, is unjustifiable, so must be that of really\npermanent imprisonment; one as much as the other is an absolute\ndeprivation of free social life, and of the possibilities of moral\ndevelopment which that life affords. The only justification for\na sentence of permanent imprisonment in a case where there would\nbe none for capital punishment would be that, though inflicted as\npermanent, the imprisonment might be brought to an end in the event\nof any sufficient proof appearing of the criminal's amendment.\nBut such proof could only be afforded if the imprisonment were so\nmodified as to allow the prisoner a certain amount of liberty.\n\n206. If punishment then is to be just, in the sense that in its\ninfliction due account is taken of all rights, including the\nsuspended rights of the criminal himself, it must be, so far as\npublic safety allows, reformatory. It must tend to qualify the\ncriminal for the resumption of rights. As reformatory, however,\npunishment has for its direct object the qualification for the\nexercise of rights, and is only concerned with the moralisation of\nthe criminal indirectly so far as it may result from the exercise\nof rights. But even where it cannot be reformatory in this sense,\nand over and above its reformatory function in cases where it has\none, it has a moral end. Just because punishment by the state has\nfor its direct object the maintenance of rights, it has, like every\nother function of the state, indirectly a moral object, because true\nrights, according to our definition, are powers which it is for\nthe general well-being that the individual (or association) should\npossess, and that well-being is essentially a moral well-being.\nUltimately, therefore, the just punishment of crime is for the\nmoral good of the community. It is also for the moral good of the\ncriminal himself, unless--and this is a supposition which we ought\nnot to make--he is beyond the reach of moral influences. Though not\ninflicted for that purpose, and though it would not the less have to\nbe inflicted if no moral effect on the criminal could be discerned,\nit is morally the best thing that can happen to him. It is so, even\nif a true social necessity requires that he be punished with death.\nThe fact that society is obliged so to deal with him affords the best\nchance of bringing home to him the anti-social nature of his act. It\nis true that the last utterances of murderers generally convey the\nimpression that they consider themselves interesting persons, quite\nsure of going to heaven; but these are probably conventional. At\nany rate if the solemn infliction of punishment on behalf of human\nsociety, and without any sign of vindictiveness, will not breed the\nshame which is the moral new birth, presumably nothing else within\nhuman reach will.\n\n    M. _THE RIGHT OF THE STATE TO PROMOTE MORALITY._\n\n207. The right of the individual man as such to free life is\nconstantly gaining on its negative side more general recognition. It\nis the basis of the growing scrupulosity in regard to punishments\nwhich are not reformatory, which put rights finally out of the reach\nof a criminal instead of qualifying him for their renewed exercise.\nBut the only rational foundation for the ascription of this right\nis the ascription of capacity for free contribution to social good.\nWe treat this capacity in the man whose crime has given proof of\nits having been overcome by anti-social tendencies, as yet giving\nhim a title to a further chance of its development; on the other\nhand, we act as if it conferred no title on its possessors, before\na crime has been committed, to be placed under conditions in which\nits realisation would be possible. Is this reasonable? Yet are not\nall modern states so acting? Are they not allowing their ostensible\nmembers to grow up under conditions which render the development of\nsocial capacity practically impossible? Was it not more reasonable,\nas in the ancient states, to deny the right to life in the human\nsubject as such, than to admit it under conditions which prevent the\nrealisation of the capacity that forms the ground of its admission?\nThis brings us to the fourth of the questions that arose [1] out of\nthe assertion of the individual's right to free life. What is the\nnature and extent of the individual's claim to be enabled positively\nto realise that capacity for freely contributing to social good which\nis the foundation of his right to free life?\n\n[1] [Above, sec. 156. RLN]\n\n208. In dealing with this question, it is important to bear in mind\nthat the capacity we are considering is essentially a free or (what\nis the same) a moral capacity. It is a capacity, not for action\ndetermined by relation to a certain end, but for action determined\nby a conception of the end to which it is relative. Only thus is\nit a foundation of rights. The action of an animal or plant may\nbe made contributory to social good, but it is not therefore a\nfoundation of rights on the part of an animal or plant, because\nthey are not affected by the conception of the good to which they\ncontribute. A right is a power of acting for his own ends,--for\nwhat he conceives to be his good,--secured to an individual by the\ncommunity, on the supposition that its exercise contributes to the\ngood of the community. But the exercise of such a power cannot be so\ncontributory, unless the individual, in acting for his own ends, is\nat least affected by the conception of a good as common to himself\nwith others. The condition of making the animal contributory to human\ngood is that we do not leave him free to determine the exercise of\nhis powers; that we determine them for him; that we use him merely\nas an instrument; and this means that we do not, because we cannot,\nendow him with rights. We cannot endow him with rights because\nthere is no conception of a good common to him with us which we can\ntreat as a motive to him to do to us as he would have us do to him.\nIt is not indeed necessary to a capacity for rights, as it is to\ntrue moral goodness, that interest in a good conceived as common to\nhimself with others should be a man's dominant motive. It is enough\nif that which he presents to himself from time to time as his good,\nand which accordingly determines his action, is so far affected by\nconsideration of the position in which he stands to others,--of\nthe way in which this or that possible action of his would affect\nthem, and of what he would have to expect from them in return,--as\nto result habitually, without force or fear of force, in action not\nincompatible with conditions necessary to the pursuit of a common\ngood on the part of others. In other words, it is the presumption\nthat a man in his general course of conduct will of his own motion\nhave respect to the common good, which entitles him to rights at\nthe hands of the community. The question of the moral value of the\nmotive which may induce this respect--whether an unselfish interest\nin common good or the wish for personal pleasure and fear of personal\npain--does not come into the account at all. An agent, indeed, who\ncould only be induced by fear of death or bodily harm to behave\nconformably to the requirements of the community, would not be a\nsubject of rights, because this influence could never be brought to\nbear on him so constantly, if he were free to regulate his own life,\nas to secure the public safety. But a man's desire for pleasure\nto himself and aversion from pain to himself, though dissociated\nfrom any desire for a higher object, for any object that is desired\nbecause good for others, may constitute a capacity for rights, if\nhis imagination of pleasure and pain is so far affected by sympathy\nwith the feeling of others about him as to make him, independently of\nforce or fear of punishment, observant of established rights. In such\na case the fear of punishment may be needed to neutralise anti-social\nimpulses under circumstances of special temptation, but by itself it\ncould never be a sufficiently uniform motive to qualify a man, in the\nabsence of more spontaneously social feelings, for the life of a free\ncitizen. The qualification for such a life is a spontaneous habit\nof acting with reference to a common good, whether that habit be\nfounded on an imagination of pleasures and pains or on a conception\nof what ought to be. In either case the habit implies at least an\nunderstanding that there is such a thing as a common good, and a\nregulation of egoistic hopes and fears, if not an inducing of more\n'disinterested' motives, in consequence of that understanding.\n\n209. The capacity for rights, then, being a capacity for spontaneous\naction regulated by a conception of a common good, either so\nregulated through an interest which flows directly from that\nconception, or through hopes and fears which are affected by it\nthrough more complex channels of habit and association, is a capacity\nwhich cannot be generated--which on the contrary is neutralised--by\nany influences that interfere with the spontaneous action of social\ninterests. Now any direct enforcement of the outward conduct,\nwhich ought to flow from social interests, by means of threatened\npenalties--and a law requiring such conduct necessarily implies\npenalties for disobedience to it--does interfere with the spontaneous\naction of those interests, and consequently checks the growth of\nthe capacity which is the condition of the beneficial exercise of\nrights. For this reason the effectual action of the state, i.e. the\ncommunity as acting through law, for the promotion of habits of\ntrue citizenship, seems necessarily to be confined to the removal\nof obstacles. Under this head, however, there may and should be\nincluded much that most states have hitherto neglected, and much that\nat first sight may have the appearance of an enforcement of moral\nduties, e.g. the requirement that parents have their children taught\nthe elementary arts. To educate one's children is no doubt a moral\nduty, and it is not one of those duties, like that of paying debts,\nof which the neglect directly interferes with the rights of someone\nelse. It might seem, therefore, to be a duty with which positive law\nshould have nothing to do, any more than with the duty of striving\nafter a noble life. On the other hand, the neglect of it does tend\nto prevent the growth of the capacity for beneficially exercising\nrights on the part of those whose education is neglected, and it is\non this account, not as a purely moral duty on the part of a parent,\nbut as the prevention of a hindrance to the capacity for rights on\nthe part of children, that education should be enforced by the state.\nIt may be objected, indeed, that in enforcing it we are departing in\nregard to the parents from the principle above laid down; that we are\ninterfering with the spontaneous action of social interests, though\nwe are doing so with a view to promoting this spontaneous action\nin another generation. But the answer to this objection is, that a\nlaw of compulsory education, if the preferences, ecclesiastical or\notherwise, of those parents who show any practical sense of their\nresponsibility are duly respected, is from the beginning only felt\nas compulsion by those in whom, so far as this social function is\nconcerned, there is no spontaneity to be interfered with; and that in\nthe second generation, though the law with its penal sanctions still\ncontinues, it is not felt as a law, as an enforcement of action by\npenalties, at all.\n\n210. On the same principle the freedom of contract ought probably\nto be more restricted in certain directions than is at present the\ncase. The freedom to do as they like on the part of one set of men\nmay involve the ultimate disqualification of many others, or of a\nsucceeding generation, for the exercise of rights. This applies most\nobviously to such kinds of contract or traffic as affect the health\nand housing of the people, the growth of population relatively to\nthe means of subsistence, and the accumulation or distribution of\nlanded property. In the hurry of removing these restraints on free\ndealing between man and man, which have arisen partly perhaps from\nsome confused idea of maintaining morality, but much more from the\npower of class-interests, we have been apt to take too narrow a view\nof the range of persons--not one generation merely, but succeeding\ngenerations--whose freedom ought to be taken into account, and of\nthe conditions necessary to their freedom ('freedom' here meaning\ntheir qualification for the exercise of rights). Hence the massing\nof population without regard to conditions of health; unrestrained\ntraffic in deleterious commodities; unlimited upgrowth of the class\nof hired labourers in particular industries which circumstances have\nsuddenly stimulated, without any provision against the danger of an\nimpoverished proletariate in following generations. Meanwhile, under\npretence of allowing freedom of bequest and settlement, a system has\ngrown up which prevents the landlords of each generation from being\nfree either in the government of their families or in the disposal of\ntheir land, and aggravates the tendency to crowd into towns, as well\nas the difficulties of providing healthy house-room, by keeping land\nin a few hands. It would be out of place here to consider in detail\nthe remedies for these evils, or to discuss the question how far it\nis well to trust to the initiative of the state or of individuals in\ndealing with them. It is enough to point out the directions in which\nthe state may remove obstacles to the realisation of the capacity for\nbeneficial exercise of rights, without defeating its own object by\nvitiating the spontaneous character of that capacity.\n\n    N. _THE RIGHT OF THE STATE IN REGARD TO PROPERTY._\n\n211. We have now considered the ground of the right to free life,\nand what is the justification, if any, for the apparent disregard of\nthat right, _(a)_ in war, __(b)__ in the infliction of punishment. We\nhave also dealt with the question of the general office of the state\nin regard to the development of that capacity in individuals which\nis the foundation of the right, pointing out on the one hand the\nnecessary limitation of its office in this respect, on the other hand\nthe directions in which it may remove obstacles to that development.\nWe have next to consider the rationale of the rights of property.\n\nIn discussions on the 'origin of property' two questions are apt\nto be mixed up which, though connected, ought to be kept distinct.\nOne is the question how men have come to appropriate; the other\nthe question how the idea of right has come to be associated with\ntheir appropriations. As the term 'property' not only implies a\npermanent possession of something, or a possession which can only be\ngiven up with the good will of the possessor, but also a possession\nrecognised as a right, an inquiry into the origin of property must\ninvolve both these questions, but it is not the less important that\nthe distinction between them should be observed. Each of them again\nhas both its analytical and its historical side. In regard to the\nfirst question it is important to learn all that can be learnt as\nto the kind of things that were first, and afterwards at successive\nperiods, appropriated; as to the mode in which, and the sort of\npersons or societies by whom, they were appropriated. This is an\nhistorical inquiry. But it cannot take the place of a metaphysical\nor psychological analysis of the conditions on the part of the\nappropriating subject implied in the fact that he does such a thing\nas appropriate. So, too, in regard to the second question, it is\nimportant to investigate historically the forms in which the right\nof men in their appropriations has been recognised; the parties,\nwhether individuals or societies, to whom the right has been allowed;\nand the sort of objects, capable of appropriation, to which it has\nbeen considered to extend. But neither can these inquiries help us\nto understand, in the absence of a metaphysical or moral analysis,\neither what is implied in the ascription of a right to certain\nappropriations, or why there should be a right to them.\n\n212. We have then two questions, as above stated, each requiring\ntwo different methods of treatment. But neither have the questions\nthemselves, nor the different methods of dealing with them, been duly\ndistinguished.\n\nIt is owing to confusion between them that the right of property\nin things has been supposed to originate in the first occupancy of\nthem. This supposition, in truth, merely disguises the identical\nproposition that in order to property there must to begin with\nhave been some appropriation. The truism that there could be no\nproperty in anything which had not been at some time and in some\nmanner appropriated, tells us nothing as to how or why the property\nin it, as a right, came to be recognised, or why that right should\nbe recognised. But owing to the confusion between the origin of\nappropriation and the origin of property as a right, an identical\nproposition as to the beginning of appropriation seemed to be an\ninstructive statement as to the basis of the rights of property. Of\nlate, in a revulsion from theories founded on identical propositions,\n'historical' inquiries into the 'origin of property' have come into\nvogue. The right method of dealing with the question has been taken\nto lie in an investigation of the earliest forms in which property\nhas existed. But such investigation, however valuable in itself,\nleaves untouched the questions, (1) what it is in the nature of men\nthat makes it possible for them, and moves them, to appropriate; (2)\nwhy it is that they conceive of themselves and each other as having a\nright in their appropriations; (3) on what ground this conception is\ntreated as a moral authority,--as one that should be acted on.\n\n213. (1) Appropriation is an expression of will; of the individual's\neffort to give reality to a conception of his own good; of his\nconsciousness of a possible self-satisfaction as an object to be\nattained. It is different from mere provision to supply a future\nwant. Such provision appears to be made by certain animals, e.g.\nants. It can scarcely be made under the influence of the imagination\nof pain incidental to future want derived from previous experience,\nfor the ant lays up for the winter though it has not previously\nlived through the winter. It may be suggested that it does so from\ninherited habit, but that this habit has originally arisen from an\nexperience of pain on the part of ants in the past. Whether this is\nthe true account of the matter we have not, I think,--perhaps from\nthe nature of the case we cannot have--the means of deciding. We\nconceal our ignorance by saying that the ant acts instinctively,\nwhich is in effect a merely negative statement, that the ant is not\nmoved to make provision for winter either by imagination of the\npain which will be felt in winter if it does not, or by knowledge\n(conception of the fact) that such pain will be felt. In fact,\nwe know nothing of the action of the ant from the inside, or as\nan expression of consciousness. If we are not entitled to deny\ndogmatically that it expresses consciousness at all, neither are\nwe entitled to say that it does express consciousness, still less\nwhat consciousness it expresses. On the other hand we are able to\ninterpret the acts of ourselves, and of those with whom we can\ncommunicate by means of signs to which we and they attach the same\nmeaning, as expressions of consciousness of a certain kind, and thus\nby reflective analysis to assure ourselves that acts of appropriation\nin particular express a will of the kind stated; that they are not\nmerely a passing employment of such materials as can be laid hands on\nto satisfy this or that want, present or future, felt or imagined,\nbut reflect the consciousness of a subject which distinguishes itself\nfrom its wants; which presents itself to itself as still there and\ndemanding satisfaction when this or that want, or any number of\nwants, have been satisfied; which thus not merely uses a thing to\nfill a want, and in so doing at once destroys the thing and for the\ntime removes the want, but says to itself, 'This shall be mine to do\nas I like with, to satisfy my wants and express my emotions as they\narise.'\n\n214. One condition of the existence of property, then, is\nappropriation, and that implies the conception of himself on the\npart of the appropriator as a permanent subject for whose use, as\ninstruments of satisfaction and expression, he takes and fashions\ncertain external things, certain things external to his bodily\nmembers. These things, so taken and fashioned, cease to be external\nas they were before. They become a sort of extension of the man's\norgans, the constant apparatus through which he gives reality to\nhis ideas and wishes. But another condition must be fulfilled in\norder to constitute property, even of the most simple and primitive\nsort. This is the recognition by others of a man's appropriations as\nsomething which they will treat as his, not theirs, and the guarantee\nto him of his appropriations by means of that recognition. What then\nis the ground of the recognition? The writers of the seventeenth\nand eighteenth centuries, who discussed the basis of the rights of\nproperty, took it for granted, and in so doing begged the question.\nGrotius makes the right of property rest on contract, but clearly\nuntil there is a recognised 'meum' and 'tuum' there can be no\ncontract. Contract presupposes property. The property in a particular\nthing may be derived from a contract through which it has been\nobtained in exchange for another thing or for some service rendered,\nbut that implies that it was previously the property of another,\nand that the person obtaining it had a property in something else,\nif only in the labour of his hands, which he could exchange for it.\n[1] Hobbes is so far more logical that he does not derive property\nfrom contract, but treats property and 'the validity of covenants'\nas co-ordinately dependent on the existence of a sovereign power\nof compulsion. [2] But his account of this, as of all other forms\nof right, is open to the objection (before dwelt on) that if the\nsovereign power is merely a strongest force it cannot be a source of\nrights; and that if it is other than this, if it is a representative\nand maintainer of rights, its existence presupposes rights, which\nremain to be accounted for. As previously shown, Hobbes, while\nprofessing to make all rights dependent on the sovereign power,\npresupposes rights in his account of the institution of this power.\nThe validity of contracts 'begins not but with its institution,'\nyet its own right is derived from an irrevocable contract of all\nwith all in which each devolves his 'persona,' the body of his\nrights, upon it. Without pressing his particular forms of expression\nunfairly against him, it is clear that he could not really succeed\nin thinking of rights as derived simply from supreme force; that he\ncould not associate the idea of absolute right with the sovereign\nwithout supposing prior rights which it was made the business of the\nsovereign to enforce, and in particular such a recognised distinction\nbetween 'meum' and 'tuum' as is necessary to a covenant. Nor when we\nhave dropped Hobbes' notion of government or law-making power, as\nhaving originated in a covenant of all with all, shall we succeed any\nbetter in deriving rights of property, any more than other rights,\nfrom law or a sovereign which makes law, unless we regard the law or\nsovereign as the organ or sustainer of a general social recognition\nof certain powers, as powers which should be exercised.\n\n[1] Grotius, _De Jure, etc_. Book II, chap. ii. Sect. 5. 'Simul\ndiscimus quomodo res in proprietatem iverint ... pacto quodam aut\nexpresso, ut per divisionem, aut tacito, ut per occupationem: simul\natque enim communio displicuit, nec instituta est divisio, censeri\ndebet inter omnes convenisse ut, quod quisque occupasset, id proprium\nhaberet.' But he supposes a previous process by which things had been\nappropriated (Sect. 4), owing to the necessity of spending labour on\nthem in order to satisfy desire for a more refined kind of living\nthan could be supplied by spontaneous products of the earth. 'Hinc\ndiscimus quae fuerit causa, ob quam a primaeva communione rerum\nprimo mobilium, deinde et immobilium discessum est: nimirum quod non\ncontenti homines vesci sponte natis, antra habitare ... vitae genus\nexquisitius delegissent, industria opus fuit, quam singuli rebus\nsingulis adhiberent.' ... The 'communio rerum,' thus departed from\nwhen labour came to be expended on things, Grotius had previously\ndescribed (Sect. 1) as a state of things in which everyone had a\nright to whatever he could lay hands on. 'Erant omnia communia et\nindivisa omnibus, veluti unum cunctis patrimonium esset. Hinc factum\nut statim quisque hominum ad suos usus arripere posset quod vellet,\net quae consumi poterant consumere, ac talis usus universalis juris\nerat tum vice proprietatis. Nam quod quisque sic arripuerat, id ei\neripere alter nisi per injuriam non poterat.' Here then a virtual\nright of property, though not so called, seems to be supposed in\ntwo forms previous to the establishment of what Grotius calls the\nright of property by contract. There is (1) a right of property in\nwhat each can 'take to his use and consume' out of the raw material\nsupplied by nature; (2) a further right of each man in that on which\nhe has expended labour. Grotius does not indeed expressly call this\na right, but if there is a right, as he says there is, on the part\nof each man to that which he is able 'ad suos arripere usus,' much\nmore must there be a right to that which he has not only taken but\nfashioned by his labour. On the nature and rationale of this right\nGrotius throws no light, but it is clearly presupposed by that right\nof property which he supposes to be derived from contract, and must\nbe recognised before any such contract could be possible.\n\n[2] 'There is annexed to the sovereignty the whole power of\nprescribing the rules whereby every man may know what goods he may\nenjoy and what actions he may do without being molested by any of\nhis fellow-subjects: and this is it men call propriety. For before\nconstitution of sovereign power all men had right to all things,\nwhich necessarily causeth war; and therefore this propriety, being\nnecessary to peace, and depending on sovereign power, is the act\nof that power in order to the public peace.' (_Leviathan_, pt. II,\nchap. xviii.) 'The nature of justice consisteth in keeping of valid\ncovenants, but the validity of covenants begins not but with the\nconstitution of a civil power, sufficient to compel men to keep them;\nand then it is also that propriety begins.' (_Ibid_. chap, xv.)\n\n215. Locke [1] treats property--fairly enough so long as only its\nsimplest forms are in question--as derived from labour. By the same\nlaw of nature and reason by which a man has 'a property in his\nown person,' 'the labour of his body and the work of his hand are\nproperly his' too. Now that the right to free life, which we have\nalready dwelt on, carries with it a certain right to property, to\na certain permanent apparatus beyond the bodily organs, for the\nmaintenance and expression of that life, is quite true. But apart\nfrom the difficulty of tracing some kinds of property, in which men\nare in fact held to have a right, to the labour of anyone, even of\nsomeone from whom it has been derived by inheritance or bequest (a\ndifficulty to be considered presently), to say that it is a 'law of\nnature and reason' that a man should have a property in the work\nof his hands is no more than saying that that on which a man has\nimpressed his labour is recognised by others as something which\nshould be his, just as he himself is recognised by them as one that\nshould be his own master. The ground of the recognition is the same\nin both cases, and it is Locke's merit to have pointed this out; but\nwhat the ground is he does not consider, shelving the question by\nappealing to a law of nature and reason.\n\n[1] _Civil Government_, chap. v. The most important passages are\nquoted in Fox Bourne's _Life of Locke_, vol. ii. pp. 171 and 172.\n\n216. The ground of the right to free life, the reason why a man is\nsecured in the free exercise of his powers through recognition of\nthat exercise by others as something that should be, lay, as we saw,\nin the conception on the part of everyone who concedes the right to\nothers and to whom it is conceded, of an identity of good for himself\nand others. It is only as within a society, as a relation between\nits members, though the society be that of all men, that there can\nbe such a thing as a right; and the right to free life rests on the\ncommon will of the society, in the sense that each member of the\nsociety within which the right subsists contributes to satisfy the\nothers in seeking to satisfy himself, and that each is aware that the\nother does so; whence there results a common interest in the free\nplay of the powers of all. And just as the recognised interest of a\nsociety constitutes for each member of it the right to free life,\njust as it makes each conceive of such life on the part of himself\nand his neighbour as what should be, and thus forms the basis of\na restraining custom which secures it for each, so it constitutes\nthe right to the instruments of such life, making each regard the\npossession of them by the other as for the common good, and thus\nthrough the medium first of custom, then of law, securing them to\neach.\n\n217. Thus the doctrine that the foundation of the right of property\nlies in the will, that property is 'realised will,' is true enough\nif we attach a certain meaning to 'will'; if we understand by it,\nnot the momentary spring of any and every spontaneous action, but a\nconstant principle, operative in all men qualified for any form of\nsociety, however frequently overborne by passing impulses, in virtue\nof which each seeks to give reality to the conception of a well-being\nwhich he necessarily regards as common to himself with others. A\nwill of this kind explains at once the effort to appropriate, and\nthe restraint placed on each in his appropriations by a customary\nrecognition of the interest which each has in the success of the\nlike effort on the part of the other members of a society with which\nhe shares a common well-being. This customary recognition, founded\non a moral or rational will, requires indeed to be represented by\nsome adequate force before it can result in a real maintenance of\nthe rights of property. The wild beast in man will not otherwise\nyield obedience to the rational will. And from the operation of\nthis compulsive force, very imperfectly controlled by the moral\ntendencies which need its co-operation,--in other words from the\nhistorical incidents of conquest and government, --there result\nmany characteristics of the institution of property, as it actually\nexists, which cannot be derived from the spiritual principle which\nwe have assigned as its foundation. Still, without that principle\nit could not have come into existence, nor would it have any moral\njustification at all.\n\n218. It accords with the account given of this principle that the\nright of property, like every other form of right, should first\nappear within societies founded on kinship, these being naturally\nthe societies within which the restraining conception of a common\nwell-being is first operative. We are apt indeed to think of the\nstate of things in which the members of a family or clan hold land\nand stock in common, as the antithesis of one in which rights\nof property exist. In truth it is the earliest stage of their\nexistence, because the most primitive form of society in which the\nfruit of his labour is secured to the individual by the society,\nunder the influence of the conception of a common well-being. The\ncharacteristic of primitive communities is not the absence of\ndistinction between 'meum' and 'tuum,' without which no society of\nintelligent as opposed to instinctive agents would be possible at\nall, but the common possession of certain materials, in particular\nland, on which labour may be expended. It is the same common interest\nwhich prevents the separate appropriation of these materials, and\nwhich secures the individual in the enjoyment and use of that which\nhis labour can extract from them.\n\n219. From the moral joint of view, however, the clan-system is\ndefective, because under it the restraint imposed upon the individual\nby his membership of a society is not, and has not the opportunity\nof becoming, a self-imposed restraint, a free obedience, to which,\nthough the alternative course is left open to him, the individual\nsubmits, because he conceives it as his true good. The area within\nwhich he can shape his own circumstances is not sufficient to allow\nof the opposite possibilities of right and wrong being presented to\nhim, and thus of his learning to love right for its own sake. And the\nother side of this moral tutelage of the individual, this withholding\nfrom him of the opportunity of being freely determined by recognition\nof his moral relations, is the confinement of those relations\nthemselves, which under the clan-system have no actual existence\nexcept as between members of the same clan. A necessary condition\nat once of the growth of a free morality, i.e. a certain behaviour\nof men determined by an understanding of moral relations and by the\nvalue which they set on them as understood, and of the conception\nof those relations as relations between all men, is that free play\nshould be given to every man's powers of appropriation. Moral freedom\nis not the same thing as a control over the outward circumstances\nand appliances of life. It is the end to which such control is a\ngenerally necessary means, and which gives it its value. In order to\nobtain this control, men must cease to be limited in their activities\nby the customs of the clan. The range of their appropriations must\nbe extended; they must include more of the permanent material on\nwhich labour may be expended, and not merely the passing products of\nlabour spent on unappropriated material; and they must be at once\nsecured and controlled in it by the good-will, by the sense of common\ninterest, of a wider society, of a society to which any and every\none may belong who will observe its conditions, and not merely those\nof a particular parentage; in other words by the law, written or\nunwritten, of a free state.\n\n220. It is too long a business here to attempt an account of the\nprocess by which the organisation of rights in the state has\nsuperseded that of the clan, and at the same time the restriction of\nthe powers of appropriation implied in the latter has been removed.\nIt is important to observe, however, that this process has by no\nmeans contributed unmixedly to the end to which, from the moral\npoint of view, it should have contributed. That end is at once the\nemancipation of the individual from all restrictions upon the free\nmoral life, and his provision with means for it. But the actual\nresult of the development of rights of property in Europe, as part of\nits general political development, has so far been a state of things\nin which all indeed _may_ have property, but great numbers in fact\ncannot have it in that sense in which alone it is of value, viz. as a\npermanent apparatus for carrying out a plan of life, for expressing\nideas of what is beautiful, or giving effect to benevolent wishes.\nIn the eye of the law they have rights of appropriation, but in fact\nthey have not the chance of providing means for a free moral life,\nof developing and giving reality or expression to a good will, an\ninterest in social well-being. A man who possesses nothing but his\npowers of labour and who has to sell these to a capitalist for bare\ndaily maintenance, might as well, in respect of the ethical purposes\nwhich the possession of property should serve, be denied rights\nof property altogether. Is the existence of so many men in this\nposition, and the apparent liability of many more to be brought to\nit by a general fall of wages, if increase of population goes along\nwith decrease in the productiveness of the earth, a necessary result\nof the emancipation of the individual and the free play given to\npowers of appropriation? or is it an evil incident, which may yet be\nremedied, of that historical process by which the development of the\nrights of property has been brought about, but in which the agents\nhave for the most part had no moral objects in view at all?\n\n221. Let us first be clear about the points in which the conditions\nof property, as it actually exists, are at variance with property\naccording to its idea or as it should be. The rationale of property,\nas we have seen, is that everyone should be secured by society in the\npower of getting and keeping the means of realising a will, which\nin possibility is a will directed to social good. Whether anyone's\nwill is actually and positively so directed, does not affect his\nclaim to the power. This power should be secured to the individual\nirrespectively of the use which he actually makes of it, so long as\nhe does not use it in a way that interferes with the exercise of\nlike power by another, on the ground that its uncontrolled exercise\nis the condition of attainment by man of that free morality which is\nhis highest good. It is not then a valid objection to the manner in\nwhich property is possessed among us, that its holders constantly\nuse it in a way demoralising to themselves and others, any more than\nsuch misuse of any other liberties is an objection to securing men in\ntheir possession. Only then is property held in a way inconsistent\nwith its idea, and which should, if possible, be got rid of, when the\npossession of property by one man interferes with the possession of\nproperty by another; when one set of men are secured in the power of\ngetting and keeping the means of realising their will, in such a way\nthat others are practically denied the power. In that case it may\ntruly be said that 'property is theft.' The rationale of property,\nin short, requires that everyone who will conform to the positive\ncondition of possessing it, viz. labour, and the negative condition,\nviz. respect for it as possessed by others, should, so far as social\narrangements can make him so, be a possessor of property himself,\nand of such property as will at least enable him to develope a sense\nof responsibility, as distinct from mere property in the immediate\nnecessaries of life.\n\n222. But then the question arises, whether the rationale of property,\nas thus stated, is not inconsistent with the unchecked freedom of\nappropriation, or freedom of appropriation checked only by the\nrequirement that the thing appropriated shall not have previously\nbeen appropriated by another. Is the requirement that every honest\nman should be a proprietor to the extent stated, compatible with\nany great inequalities of possession? In order to give effect to\nit, must we not remove those two great sources of the inequality of\nfortunes, (1) freedom of bequest, and the other arrangements by which\nthe profits of the labour of several generations are accumulated\non persons who do not labour at all; (2) freedom of trade, of\nbuying in the cheapest market and selling in the dearest, by which\naccumulated profits of labour become suddenly multiplied in the\nhands of a particular proprietor? Now clearly, if an inequality of\nfortunes, of the kind which naturally arises from the admission of\nthese two forms of freedom, necessarily results in the existence of a\nproletariate, practically excluded from such ownership as is needed\nto moralise a man, there would be a contradiction between our theory\nof the right of property and the actual consequence of admitting the\nright according to the theory; for the theory logically necessitates\nfreedom both in trading and in the disposition of his property by the\nowner, so long as he does not interfere with the like freedom on the\npart of others; and in other ways as well its realisation implies\ninequality.\n\n223. Once admit as the idea of property that nature should be\nprogressively adapted to the service of man by a process in which\neach, while working freely or for himself, i.e. as determined by\na conception of his own good, at the same time contributes to the\nsocial good, and it will follow that property must be unequal. If we\nleave a man free to realise the conception of a possible well-being,\nit is impossible to limit the effect upon him of his desire to\nprovide for his future well-being, as including that of the persons\nin whom he is interested, or the success with which at the prompting\nof that desire he turns resources of nature to account. Considered\nas representing the conquest of nature by the effort of free and\nvariously gifted individuals, property must be unequal; and no less\nmust it be so if considered as a means by which individuals fulfil\nsocial functions. As we may learn from Aristotle, those functions\nare various and the means required for their fulfilment are various.\nThe artist and man of letters require different equipment and\napparatus from the tiller of land and the smith. Either then the\nvarious apparatus needed for various functions must be provided for\nindividuals by society, which would imply a complete regulation of\nlife incompatible with that highest object of human attainment, a\nfree morality; or we must trust for its provision to individual\neffort, which will imply inequality between the property of different\npersons.\n\n224. The admission of freedom of trade follows from the same\nprinciple. It is a condition of the more complete adaptation of\nnature to the service of man by the free effort of individuals. 'To\nbuy in the cheapest and sell in the dearest market' is a phrase which\nmay no doubt be used to cover objectionable transactions, in which\nadvantage is taken of the position of sellers who from circumstances\nare not properly free to make a bargain. It is so employed when the\ncheapness of buying arises from the presence of labourers who have\nno alternative but to work for 'starvation wages.' But in itself it\nmerely describes transactions in which commodities are bought where\nthey are of least use and sold where they are of most use. The trader\nwho profits by the transaction is profiting by what is at the same\ntime a contribution to social well-being.\n\nIn regard to the freedom which a man should be allowed in disposing\nof his property by will or gift, the question is not so simple. The\nsame principle which forbids us to limit the degree to which a man\nmay provide for his future, forbids us to limit the degree to which\nhe may provide for his children, these being included in his forecast\nof his future. It follows that the amount which children may inherit\nmay not rightly be limited; and in this way inequalities of property,\nand accumulations of it to which possessors have contributed\nnothing by their own labour, must arise. Of course the possessor\nof an estate, who has contributed nothing by his own labour to its\nacquisition, may yet by his labour contribute largely to the social\ngood, and a well-organised state will in various ways elicit such\nlabour from possessors of inherited wealth. Nor will it trust merely\nto encouraging the voluntary fulfilment of social functions, but\nwill by taxation make sure of some positive return for the security\nwhich it gives to inherited wealth. But while the mere permission\nof inheritance, which seems implied in the permission to a man to\nprovide unlimitedly for his future, will lead to accumulations of\nwealth, on the other hand, if the inheritance is to be equal among\nall children, and, failing children, is to pass to the next of kin,\nthe accumulation will be checked. It is not therefore the right of\ninheritance, but the right of bequest, that is most likely to lead to\naccumulation of wealth, and that has most seriously been questioned\nby those who hold that universal ownership is a condition of moral\nwell-being. Is a proprietor to be allowed to dispose of his property\nas he likes among his children (or, if he has none, among others),\nmaking one very rich as compared with the others, or is he to be\nchecked by a law requiring approximately equal inheritance?\n\n225. As to this, consider that on the same principle on which we\nhold that a man should be allowed to accumulate as he best can for\nhis children, he should have discretion in distributing among his\nchildren. He should be allowed to accumulate, because in so doing he\nat once expresses and developes the sense of family responsibility,\nwhich naturally breeds a recognition of duties in many other\ndirections. But if the sense of family responsibility is to have\nfree play, the man must have due control over his family, and this\nhe can scarcely have if all his children as a matter of necessity\ninherit equally, however undutiful or idle or extravagant they may\nbe. For this reason the true theory of property would seem to favour\nfreedom of bequest, at any rate in regard to wealth generally. There\nmay be special reasons, to be considered presently, for limiting it\nin regard to land. But as a general rule, the father of a family, if\nleft to himself and not biassed by any special institutions of his\ncountry, is most likely to make that distribution among his children\nwhich is most for the public good. If family pride moves him to endow\none son more largely than the rest, in order to maintain the honour\nof his name, family affection will keep this tendency within limits\nin the interest of the other children, unless the institutions of his\ncountry favour the one tendency as against the other. And this they\nwill do if they maintain great dignities, e.g. peerages, of which the\npossession of large hereditary wealth is virtually the condition, and\nif they make it easy, when the other sons have been impoverished for\nthe sake of endowing the eldest, to maintain the former at the public\nexpense by means of appointments in the church or state.\n\nIt must be borne in mind, further, that the freedom of bequest which\nis to be justified on the above principles must not be one which\nlimits that freedom in a subsequent generation, It must therefore be\ndistinguished from the power of settlement allowed by English law and\nconstantly exercised in dealing with landed estate; for this power,\nas exercised by the landowning head of a family in one generation,\nprevents the succeeding head of the family from being free to make\nwhat disposition he thinks best among his children and ties up\nthe succession to the estate to his eldest son. The practice of\nsettlement in England, in short, as applied to landed estate, cancels\nthe freedom of bequest in the case of most landowners and neutralises\nall the dispersive tendency of family affection, while it maintains\nin full force all the accumulative tendency of family pride. This,\nhowever, is no essential incident of a system in which the rights of\nindividual ownership are fully developed, but just the contrary.\n\n226. The question then remains, whether the full development of\nthose rights, as including that of unlimited accumulation of wealth\nby the individual and of complete freedom of bequest on his part,\nnecessarily carries with it the existence of a proletariate, nominal\nowners of their powers of labour, but in fact obliged to sell\nthese on such terms that they are owners of nothing beyond what is\nnecessary from day to day for the support of life, and may at any\ntime lose even that, so that, as regards the moral functions of\nproperty, they may be held to be not proprietors at all; or whether\nthe existence of such a class is due to causes only accidentally\nconnected with the development of rights of individual property.\n\nWe must bear in mind (1) that the increased wealth of one man does\nnot naturally mean the diminished wealth of another. We must not\nthink of wealth as a given stock of commodities of which a larger\nshare cannot fall to one without taking from the share that falls\nto another. The wealth of the world is constantly increasing in\nproportion as the constant production of new wealth by labour exceeds\nthe constant consumption of what is already produced, There is no\nnatural limit to its increase except such as arises from the fact\nthat the supply of the food necessary to sustain labour becomes more\ndifficult as more comes to be required owing to the increase in the\nnumber of labourers, and from the possible ultimate exhaustion of the\nraw materials of labour in the world. Therefore in the accumulation\nof wealth, so far as it arises from the saving by anyone of the\nproducts of his labour, from his bequest of this capital to another\nwho farther adds to it by saving some of the profit which the capital\nyields, as employed in the payment for labour or in trade either by\nthe capitalist himself or someone to whom he lends it, and from the\ncontinuation of this process through generations, there is nothing\nwhich tends to lessen for anyone else the possibilities of ownership.\nOn the contrary, supposing trade and labour to be free, wealth\nmust be constantly distributed throughout the process in the shape\nof wages to labourers and of profits to those who mediate in the\nbusiness of exchange.\n\n227. It is true that the accumulation of capital naturally leads\nto the employment of large masses of hired labourers. But there\nis nothing in the nature of the case to keep these labourers in\nthe condition of living from hand to mouth, to exclude them from\nthat education of the sense of responsibility which depends on the\npossibility of permanent ownership. There is nothing in the fact\nthat their labour is hired in great masses by great capitalists to\nprevent them from being on a small scale capitalists themselves. In\ntheir position they have not indeed the same stimulus to saving, or\nthe same constant opening for the investment of savings, as a man\nwho is \u03b1\u1f50\u03c4\u03bf\u03c5\u03c1\u03b3\u03cc\u03c2; [1] but their combination in work gives them every\nopportunity, if they have the needful education and self-discipline,\nfor forming societies for the investment of savings. In fact, as\nwe know, in the well-paid industries of England the better sort\nof labourers do become capitalists, to the extent often of owning\ntheir houses and a good deal of furniture, of having an interest in\nstores, and of belonging to benefit-societies through which they\nmake provision for the future. It is not then to the accumulation\nof capital, but to the condition, due to antecedent circumstances\nunconnected with that accumulation, of the men with whom the\ncapitalist deals and whose labour he buys on the cheapest terms, that\nwe must ascribe the multiplication in recent times of an impoverished\nand reckless proletariate.\n\n[1] [Greek \u03b1\u1f50\u03c4\u03bf\u03c5\u03c1\u03b3\u03cc\u03c2 (autourgos) = yeoman farmer, literally one who\nworks for himself Tr.]\n\n228. It is difficult to summarise the influences to which is due\nthe fact that in all the chief seats of population in Europe the\nlabour-market is constantly thronged with men who are too badly\nreared and fed to be efficient labourers; who for this reason, and\nfrom the competition for employment with each other, have to sell\ntheir labour very cheap; who have thus seldom the means to save, and\nwhose standard of living and social expectation is so low that, if\nthey have the opportunity of saving, they do not use it, and keep\nbringing children into the world at a rate which perpetuates the\nevil. It is certain, however, that these influences have no necessary\nconnection with the maintenance of the right of individual property\nand consequent unlimited accumulation of capital, though they no\ndoubt are connected with that r\u00e9gime of force and conquest by which\nexisting governments have been established,--governments which do not\nindeed create the rights of individual property, any more than other\nrights, but which serve to maintain them. It must always be borne\nin mind that the appropriation of land by individuals has in most\ncountries--probably in all where it approaches completeness--been\noriginally effected, not by the expenditure of labour or the results\nof labour on the land, but by force. The original landlords have been\nconquerors.\n\n229. This has affected the condition of the industrial classes in at\nleast two ways: (1) When the application of accumulated capital to\nany work in the way of mining or manufacture has created a demand for\nlabour, the supply has been forthcoming from men whose ancestors, if\nnot themselves, were trained in habits of serfdom; men whose life has\nbeen one of virtually forced labour, relieved by church--charities\nor the poor law (which in part took the place of these charities);\nwho were thus in no condition to contract freely for the sale of\ntheir labour, and had nothing of that sense of family--responsibility\nwhich might have made them insist on having the chance of saving.\nLandless countrymen, whose ancestors were serfs, are the parents of\nthe proletariate of great towns. (2) Rights have been allowed to\nlandlords, incompatible with the true principle on which rights of\nproperty rest, and tending to interfere with the development of the\nproprietorial capacity in others. The right to freedom in unlimited\nacquisition of wealth, by means of labour and by means of the saving\nand successful application of the results of labour, does not imply\nthe right of anyone to do as he likes with those gifts of nature,\nwithout which there would be nothing to spend labour upon. The earth\nis just as much an original natural material necessary to productive\nindustry, as are air, light, and water, but while the latter from\nthe nature of the case cannot be appropriated, the earth can be and\nhas been. The only justification for this appropriation, as for any\nother, is that it contributes on the whole to social well-being; that\nthe earth as appropriated by individuals under certain conditions\nbecomes more serviceable to society as a whole, including those who\nare not proprietors of the soil, than if it were held in common. The\njustification disappears if these conditions are not observed; and\nfrom government having been chiefly in the hands of appropriators\nof the soil, they have not been duly observed. Landlords have been\nallowed to 'do what they would with their own,' as if land were\nmerely like so much capital, admitting of indefinite extension.\nThe capital gained by one is not taken from another, but one man\ncannot acquire more land without others having less; and though a\ngrowing reduction in the number of landlords is not necessarily\na social evil, if it is compensated by the acquisition of other\nwealth on the part of those extruded from the soil, it is only not\nan evil if the landlord is prevented from so using his land as to\nmake it unserviceable to the wants of men (e.g. by turning fertile\nland into a forest), and from taking liberties with it incompatible\nwith the conditions of general freedom and health; e.g. by clearing\nout a village and leaving the people to pick up house-room as they\ncan elsewhere (a practice common under the old poor-law, when the\ndistinction between close and open villages grew up), or, on the\nother hand, by building houses in unhealthy places or of unhealthy\nstructure, by stopping up means of communication, or forbidding\nthe erection of dissenting chapels. In fact the restraints which\nthe public interest requires to be placed on the use of land if\nindividual property in it is to be allowed at all, have been pretty\nmuch ignored, while on the other hand, that full development of its\nresources, which individual ownership would naturally favour, has\nbeen interfered with by laws or customs which, in securing estates to\ncertain families, have taken away the interest, and tied the hands,\nof the nominal owner--the tenant for life--in making the most of his\nproperty.\n\n230. Thus the whole history of the ownership of land in Europe has\nbeen of a kind to lead to the agglomeration of a proletariate,\nneither holding nor seeking property, wherever a sudden demand has\narisen for labour in mines or manufactures. This at any rate was the\ncase down to the epoch of the French Revolution; and this, which\nbrought to other countries deliverance from feudalism, left England,\nwhere feudalism had previously passed into unrestrained landlordism,\nalmost untouched. And while those influences of feudalism and\nlandlordism which tend to throw a shiftless population upon the\ncentres of industry have been left unchecked, nothing till quite\nlately was done to give such a population a chance of bettering\nitself, when it had been brought together. Their health, housing,\nand schooling were unprovided for. They were left to be freely\nvictimised by deleterious employments, foul air, and consequent\ncraving for deleterious drinks. When we consider all this, we shall\nsee the unfairness of laying on capitalism or the free development\nof individual wealth the blame which is really due to the arbitrary\nand violent manner in which rights over land have been acquired and\nexercised, and to the failure of the state to fulfil those functions\nwhich under a system of unlimited private ownership are necessary to\nmaintain the conditions of a free life.\n\n231. Whether, when those functions have been more fully recognised\nand executed, and when the needful control has been established in\nthe public interest over the liberties which landlords may take in\nthe use of their land, it would still be advisable to limit the right\nof bequest in regard to land, and establish a system of something\nlike equal inheritance, is a question which cannot be answered on\nany absolute principle. It depends on circumstances. Probably the\nquestion should be answered differently in a country like France or\nIreland, where the most important industries are connected directly\nwith the soil, and in one like England where they are not so. The\nreasons must be cogent which could justify that interference with\nthe control of the parent over his family, which seems to be implied\nin the limitation of the power of bequeathing land when the parent's\nwealth lies solely in land, and which arises, be it remembered,\nin a still more mischievous way from the present English practice\nof settling estates. But it is important to bear in mind that the\nquestion in regard to land stands on a different footing from that\nin regard to wealth generally, owing to the fact that land is a\nparticular commodity limited in extent, from which alone can be\nderived the materials necessary to any industry whatever, on which\nmen must find house-room if they are to find it at all, and over\nwhich they must pass in communicating with each other, however much\nwater or even air may be used for that purpose. These are indeed not\nreasons for preventing private property in land or even free bequest\nof land, but they necessitate a special control over the exercise of\nrights of property in land, and it remains to be seen whether that\ncontrol can be sufficiently established in a country where the power\nof great estates has not first been broken, as in France, by a law of\nequal inheritance.\n\n232. To the proposal that 'unearned increment' in the value of the\nsoil, as distinct from value produced by expenditure of labour and\ncapital, should be appropriated by the state, though fair enough in\nitself, the great objection is that the relation between earned and\nunearned increment is so complicated, that a system of appropriating\nthe latter to the state could scarcely be established without\nlessening the stimulus to the individual to make the most of the\nland, and thus ultimately lessening its serviceableness to society.\n\n    O. _THE RIGHT OF THE STATE IN REGARD TO THE FAMILY._\n\n233. In the consideration of those rights which do not arise out of\nthe existence of the state, but which are antecedent to it (though\nof course implying society in some form), and which it is its office\nto enforce, we now come to family or household rights--also called,\nthough not very distinctively, rights in private relations--of which\nthe most important are the reciprocal rights of husband and wife,\nparent and child. The distinctive thing about these is that they are\nnot merely rights of one person as against all or some other persons\nover some thing, or to the performance of or abstention from some\naction; they are rights of one person as against all other persons\nto require or prevent a certain behaviour on the part of another.\nRight to free life is a right on the part of any and every person to\nclaim from all other persons that course of action or forbearance\nwhich is necessary to his free life. It is a right against all the\nworld, but not a right over any particular thing or person. A right\nof property, on the other hand, is a right against all the world, and\nalso over a particular thing; a right to claim from any and every\none certain actions and forbearances in respect of a particular\nthing (hence called 'jus in rem'). A right arising from contract,\nunlike the right of property or the right of free life, is not a\nright as against all the world, but a right as against a particular\nperson or persons contracted with to claim a certain performance or\nforbearance. It may or may not be a right over a particular thing,\nbut as it is not necessarily so, while it is a right against a\nparticular person or persons in distinction from all the world, it\nis called 'jus in personam' as distinct from 'in rem.' The right of\nhusband over wife and that of parent over children (or _vice versa_)\ndiffers from the right arising out of contract, inasmuch as it is\nnot merely a right against the particular person contracted with,\nbut a right against all the world. In this respect it corresponds\nto the right of property; but differs again from this, since it is\nnot a right over a thing but over a person. It is a right to claim\ncertain acts or forbearances from all other persons in respect of a\nparticular person: or (more precisely) to claim a certain behaviour\nfrom a certain person, and at the same time to exclude all others\nfrom claiming it. Just because this kind of right is a right over a\nperson, it is always reciprocal as between the person exercising it\nand the person over whom it is exercised. All rights are reciprocal\nas between the person exercising them and the person against whom\nthey are exercised. My claim to the right of free life implies a\nlike claim upon me on the part of those from whom I claim acts and\nforbearances necessary to my free life. My claim upon others in\nrespect of the right of property, or upon a particular person in\nrespect of an action which he has contracted to perform, implies\nthe recognition of a corresponding claim upon me on the part of all\npersons or the particular party to the contract. But the right of a\nhusband in regard to his wife not merely implies that all those as\nagainst whom he claims the right have a like claim against him, but\nthat the wife over whom he asserts the right has a right, though not\na precisely like right, over him. The same applies to the right of a\nfather over a son, and of a master over a servant.\n\n234. A German would express the peculiarity of the rights now under\nconsideration by saying that, not only are persons the subjects of\nthem, but persons are the objects of them. By the 'subject' of rights\nhe would mean the person exercising them or to whom they belong;\nby 'object' that in respect of which the rights are exercised. The\npiece of land or goods which I own is the 'object' of the right\nof property, the particular action which one person contracts to\nperform for another is the 'object' of a right of contract; and in\nlike manner the person from whom I have a right to claim certain\nbehaviour, which excludes any right on the part of anyone else to\nclaim such behaviour from him or her, is the 'object' of the right.\nBut English writers commonly call that the subject of a right which\nthe Germans would call the object. By the subject of a right of\nproperty they would not mean the person to whom the right belongs,\nbut the thing over which, or in respect of which, the right exists.\nAnd in like manner, when a right is exercised over, or in respect of\na person, such as a wife or a child, they would call that person, and\nnot the person exercising the right, the subject of it. By the object\nof a right, on the other hand, they mean the action or forbearance\nwhich someone has a right to claim. The object of a right arising\nout of contract would be the action which the person contracting\nagrees to perform. The object of a connubial right would not be, as\naccording to German usage, the person in regard to, or over, whom\nthe right is exercised--that person would be the subject of the\nright--but either the behaviour which the person possessing the right\nis entitled to claim from that person, or the forbearances in respect\nto that person, which he is entitled to claim from others. (Austin,\nI. 378 and II. 736.) Either usage is justifiable in itself. The only\nmatter of importance is not to confuse them. There is a convenience\nin expressing the peculiarity of family rights by saying, according\nto the sense of the terms adopted by German writers, that not only\nare persons subjects of them but persons are objects of them. It is\nin this sense that I shall use these terms, if at all.\n\n235. So much for the peculiarity of family rights, as distinct from\nother rights. The distinction is not merely a formal one. From the\nfact that these rights have persons for their objects, there follow\nimportant results, as will appear, in regard to the true nature\nof the right, to the manner in which it should be exercised. The\nanalytical, as distinct from the historical, questions which have to\nbe raised with reference to family rights correspond to those raised\nwith reference to rights of property. As we asked what in the nature\nof man made appropriation possible for him, so now we ask (1) what\nit is in the nature of man that makes him capable of family life. As\nwe asked next how appropriations came to be so sanctioned by social\nrecognition as to give rise to rights of property, so now we have to\nask (2) how certain powers exercised by a man, certain exemptions\nwhich he enjoys from the interference of others, in his family life,\ncome to be recognised as rights. And as we inquired further how far\nthe actual institutions of property correspond with the idea of\nproperty as a right which for social good should be exercised, so now\nwe have to inquire (3) into the proper adjustment of family rights,\nas determined by their idea; in what form these rights should be\nmaintained; bearing in mind _(a)_ that, like all rights, their value\ndepends on their being conditions of which the general observance is\nnecessary to a free morality, and __(b)__ their distinctive character\nas rights of which, in the sense explained, persons are the objects.\n\n236. (1) We saw that appropriation of that kind which, when secured\nby a social power, becomes property, supposes an effort on the part\nof the individual to give reality to a conception of his own good,\nas a whole or as something permanent, in distinction from the mere\neffort to satisfy a want as it arises. The formation of family life\nsupposes a like effort, but it also supposes that in the conception\nof his own good to which a man seeks to give reality there is\nincluded a conception of the well-being of others, connected with\nhim by sexual relations or by relations which arise out of these. He\nmust conceive of the well-being of these others as a permanent object\nbound up with his own, and the interest in it as thus conceived must\nbe a motive to him over and above any succession of passing desires\nto obtain pleasure from, or give pleasure to, the others; otherwise\nthere would be nothing to lead to the establishment of a household,\nin which the wants of the wife or wives are permanently provided\nfor, in the management of which a more or less definite share is\ngiven to them (more definite, indeed, as approach is made to a\nmonogamistic system, but not wholly absent anywhere where the wife is\ndistinguished from the female), and upon which the children have a\nrecognised claim for shelter and sustenance.\n\n237. No doubt family life as we know it is an institution of gradual\ngrowth. It may be found in forms where it is easy to ignore the\ndistinction between it and the life of beasts. It is possible that\nthe human beings with whom it first began--beings 'human' because\ncapable of it--may have been 'descended' from animals not capable of\nit, i.e. they may have been connected with such animals by certain\nprocesses of generation. But this makes no difference in the nature\nof the capacity itself, which is determined not by a past history\nbut by its results, its functions, that of which it is a capacity.\nAs the foundation of any family life, in the form in which we know\nit, implies that upon the mere sexual impulse there has supervened on\nthe part of the man a permanent interest in a woman as a person with\nwhom his own well-being is united, and a consequent interest in the\nchildren born of her, so in regard to every less perfect form out of\nwhich we can be entitled to say that the family life, as we know it,\nhas developed, we must be also entitled to say that it expresses some\ninterest which is in principle identical with that described, however\nincompletely it has emerged from lower influences.\n\n238. (2) Such an interest being the basis of family relations, it\nis quite intelligible that everyone actuated by the interest should\nrecognise, and be recognised by, everyone else to whom he ascribes\nan interest like his own, as entitled to behave towards the objects\nof the interest--towards his wife and children--in a manner from\nwhich everyone else is excluded; that there should thus come to be\nrights in family relations to a certain privacy in dealing with them;\nrights to deal with them as his alone and not another's; claims,\nratified by the general sense of their admission being for the common\ngood, to exercise certain powers and demand certain forbearances\nfrom others, in regard to wife and children. It is only indeed at an\nadvanced stage of reflection that men learn to ascribe to other men,\nsimply as men, the interests which they experience themselves; and\nhence it is at first only within narrow societies that men secure\nto each other the due privileges and privacies of family life. In\nothers of the same kin or tribe they can habitually imagine an\ninterest like that of which each feels his own family life to be\nthe expression, and hence in them they spontaneously respect family\nrights; but they cannot thus practically think themselves into the\nposition of a stranger, and hence towards him they do not observe the\nsame restraints. They do not regard the women of another nation as\nsacred to the husbands and families of that nation. But that power\nof making another's good one's own, which in the more intense and\nindividualised form is the basis of family relations, must always at\nthe same time exist in that more diffused form in which it serves as\nthe basis of a society held together by the recognition of a common\ngood. Wherever, therefore, the family relations exist, there is\nsure to exist also a wider society which by its authority gives to\nthe powers exercised in those relations the character of rights. By\nwhat process the relations of husband and wife and the institution\nof the household may have come to be formed among descendants of a\nsingle pair, it is impossible to conceive or to discover, but in\nfact we find no trace in primitive history of households except as\nconstituents of a clan recognising a common origin; and it is by the\ncustoms of the clan, founded on the conception of a common good, that\nthose forbearances on the part of members of one household in dealing\nwith another, which are necessary to the privacy of the several\nhouseholds, are secured.\n\n239. The history of the development of family life is the history of\nthe process _(a)_ by which family rights have come to be regarded\nas independent of the special custom of a clan and the special\nlaws of a state, as rights which all men and women, as such, are\nentitled to. This, however, characterises the history of all rights\nalike. It is a history farther _(b)_ of the process by which the\ntrue nature of these rights has come to be recognised, as rights\nover persons; rights of which persons are the objects, and which\ntherefore imply reciprocal claims on the part of those over whom they\nare exercised and of those who exercise them. The establishment of\nmonogamy, the abolition of 'patria potestas' in its various forms,\nthe 'emancipation of women' (in the proper sense of the phrase), are\ninvolved in these two processes. The principles (1) that all men and\nall women are entitled to marry and form households, (2) that within\nthe household the claims of the husband and wife are throughout\nreciprocal, cannot be realised without carrying with them not merely\nmonogamy, but the removal of those faulty relations between men and\nwomen which survive in countries where monogamy is established by law.\n\n240. Under a system of polygamy, just so far as it is carried out,\nthere must be men who are debarred from marrying. It can only exist,\nindeed, alongside of a slavery, which excludes masses of men from\nthe right of forming a family. Nor does the wife, under a polygamous\nsystem, though she ostensibly marries, form a household, or become\nthe co-ordinate head of a family, at all. The husband alone is\nhead of the family and has authority over the children. The wife,\nindeed, who for the time is the favourite, may practically share\nthe authority, but even she has no equal and assured position. The\n'consortium omnis vitae,' the 'individua vitae consuetudo,' which\naccording to the definition in the Digest is an essential element in\nmarriage, is not hers. [1] [2]\n\nAnd further as the polygamous husband requires a self-restraint\nfrom his wife which he does not put on himself, he is treating her\nunequally. He demands a continence from her which, unless she is\nkept in the confinement of slavery, can only rest on the attachment\nof a person to a person and on a personal sense of duty, and at the\nsame time is practically ignoring the demand, which this personal\nattachment on her part necessarily carries with it, that he should\nkeep himself for her as she keeps herself for him. The recognition of\nchildren as having claims upon their parents reciprocal to those of\nthe parents over them, equally involves the condemnation of polygamy.\nFor these claims can only be duly satisfied, the responsibilities of\nfather and mother towards the children (potentially persons) whom\nthey have brought into the world can only be fulfilled, if father and\nmother jointly take part in the education of the children; if the\nchildren learn to love and obey father and mother as one authority.\nBut if there is no permanent 'consortium vitae' of one husband with\none wife, this joint authority over the children becomes impossible.\nThe child, when its physical dependence on the mother is over, ceases\nto stand in any special relation to her. She has no recognised duties\nto him, or he to her. These lie between him and his father only, and\njust because the father's interests are divided between the children\nof many wives, and because these render their filial offices to\nthe father separately, not to father and mother jointly, the true\ndomestic training is lost.\n\n[1] 'Nuptiae sunt conjunctio maris et feminae, consortium omnis\nvitae, divini et humani juris communicatio' _Digest_, xxiii. 2,\n1. 'Matrimonium est viri et mulieris conjunctio individuam vita\nconsuetudinem continens.' Inst., i.9.2. (Quoted by Trendelenburg,\n_Naturrecht_, p. 282.)\n\n[2] [Latin consortium omnis vitae = partnership for life individua\nvitae consuetudo = unbroken companionship of life Tr]\n\n241. Monogamy, however, may be established, and an advance so far\nmade towards the establishment of a due reciprocity between husband\nand wife, as well as towards a fulfilment of the responsibilities\nincurred in bringing children into the world, while yet the true\nclaims of men in respect of women, and of women in respect of men,\nand of children upon their parents, are far from being generally\nrealised. Wherever slavery exists alongside of monogamy, on the one\nside people of the slave class are prevented from forming family\nties, and on the other those people who are privileged to marry,\nthough they are confined to one wife, are constantly tempted to be\nfalse to the true monogamistic idea by the opportunity of using women\nas chattels to minister to their pleasures. The wife is thus no more\nthan an institution, invested with certain dignities and privileges,\nfor the continuation of the family; a continuation, which under pagan\nreligions is considered necessary for the maintenance of certain\nceremonies, and to which among ourselves an importance is attached\nwholly unconnected with the personal affection of the man for the\nwife. [1] When slavery is abolished, and the title of all men and\nwomen equally to form families is established by law, the conception\nof the position of the wife necessarily rises. The \u1f11\u03c4\u03b1\u03af\u03c1\u03b1 and \u03c0\u03b1\u03bb\u03bb\u03b1\u03ba\u03ae\n[2] cease at any rate to be recognised accompaniments of married\nlife, and the claim of the wife upon the husband's fidelity, as\nreciprocal to his claim upon hers, becomes established by law.\n\n[1] Her position among the Greeks is well illustrated by a passage\nfrom the speech of Demosthenes (?) against Neaera, Sect. 122 (quoted\nby W. E. Hearn, _The Aryan Household_, p. 71). \u03c4\u1f70\u03c2 \u03bc\u1f72\u03bd \u03b3\u1f70\u03c1 \u1f11\u03c4\u03b1\u03af\u03c1\u03b1\u03c2\n\u1f21\u03b4\u03bf\u03bd\u1fc6\u03c2 \u1f15\u03bd\u03b5\u03ba\u02b9 \u1f14\u03c7\u03bf\u03bc\u03b5\u03bd, \u03c4\u1f70\u03c2 \u03b4\u1f72 \u03c0\u03b1\u03bb\u03bb\u03b1\u03ba\u1f70\u03c2 \u03c4\u1fc6\u03c2 \u03ba\u03b1\u03b8\u02b9 \u1f21\u03bc\u03ad\u03c1\u03b1\u03bd \u03b8\u03b5\u03c1\u03b1\u03c0\u03b5\u03af\u03b1\u03c2 \u03c4\u03bf\u03c5\n\u03c3\u03ce\u03bc\u03b1\u03c4\u03bf\u03c2, \u03c4\u1f70\u03c2 \u03b4\u1f72 \u03b3\u03c5\u03bd\u03b1\u1fd6\u03ba\u03b1\u03c2 \u03c4\u03bf\u1fe6 \u03c0\u03b1\u03b9\u03b4\u03bf\u03c0\u03bf\u03b9\u03b5\u1fd6\u03c3\u03b8\u03b1\u03b9 \u03b3\u03bd\u03b7\u03c3\u03af\u03c9\u03c2 \u03ba\u03b1\u1f76 \u03c4\u1ff6\u03bd \u1f14\u03bd\u03b4\u03bf\u03bd\n\u03c6\u03cd\u03bb\u03b1\u03ba\u03b1 \u03c0\u03b9\u03c3\u03c4\u1f74\u03bd \u1f14\u03c7\u03b5\u03b9\u03bd (tas men gar hetairas hedones henek echomen, tas\nde pallakas tes kath' hemeran therapeias tou somatos, tas de gynaikas\ntou paidopoieisthai gnesios kai ton endon phylaka pisten echein).\n[The query as to Demosthenes' authorship is in Green's text. Hearn\ntranslates this passage: Mistresses we keep for pleasure, concubines\nfor daily attendance on our persons, wives to bear us legitimate\nchildren and to be our faithful housekeepers. Tr]\n\n[2] [Greek \u1f11\u03c4\u03b1\u03af\u03c1\u03b1 (hetaira) = courtesan, \u03c0\u03b1\u03bb\u03bb\u03b1\u03ba\u03ae (pallake) =\nconcubine. Tr]\n\n242. Thus that marriage should only be lawful with one wife, that it\nshould be for life, that it should be terminable by the infidelity\nof either husband or wife, are rules of right; not of morality, as\nsuch, but of right. Without such rules the rights of the married\npersons are not maintained. Those outward conditions of family life\nwould not be secured to them, which are necessary on the whole for\nthe development of a free morality. Polygamy is a violation of the\nrights, (1) of those who through it are indirectly excluded from\nregular marriage, and thus from the moral education which results\nfrom this; (2) of the wife, who is morally lowered by exclusion\nfrom her proper position in the household and by being used, more\nor less, as the mere instrument of the husband's pleasure; (3)\nof the children, who lose the chance of that full moral training\nwhich depends on the connected action of father and mother. The\nterminability of marriage at the pleasure of one of the parties to it\n(of its terminability at the desire of both we will speak presently)\nis a violation of the rights at any rate of the unconsenting party,\non the grounds _(a)_ that liability to it tends to prevent marriage\nfrom becoming that 'individua vitae consuetudo' which gives it its\nmoral value, and _(b)_ that, when the marriage is dissolved, the\nwoman, just in proportion to her capacity for self-devotion and the\ndegree to which she has devoted herself to her original husband, is\ndebarred from forming that 'individua vitae consuetudo' again, and\nthus crippled in her moral possibilities. It is a violation of the\nrights of children for the same reason for which polygamy is so.\n\nOn the other hand, that the wife should be bound indissolubly by\nthe marriage-tie to an unfaithful husband (or _vice versa_), is a\nviolation of the right of wife (or husband, as the case may be),\nbecause on the one hand the restraint which makes her liable to be\nused physically as the instrument of the husband's pleasures, when\nthere is no longer reciprocal devotion between them, is a restraint\nwhich (except in peculiar cases) renders moral elevation impossible;\nand on the other, she is prevented from forming such a true marriage\nas would be, according to ordinary rules, the condition of the\nrealisation of her moral capacities. Though the husband's right\nto divorce from an unfaithful wife has been much more thoroughly\nrecognised than the wife's to divorce from an unfaithful husband, he\nwould be in fact less seriously wronged by the inability to obtain a\ndivorce, for it is only the second of the grounds just stated that\nfully applies to him. The rights of the children do not seem so\nplainly concerned in the dissolution of a marriage to which husband\nor wife has been unfaithful. In some cases the best chance for them\nmight seem to lie in the infidelities being condoned and an outward\nfamily peace re-established. But that their rights are violated by\nthe infidelity itself is plain. In the most definite way it detracts\nfrom their possibilities of goodness. Without any consent on their\npart, quite independently of any action of their own will, they are\nplaced by it in a position which tends--though special grace may\ncounteract it--to put the higher kinds of goodness beyond their reach.\n\n243. These considerations suggest some further questions which may be\ndiscussed under the following heads. (1) If infidelity in marriage is\na violation of rights in the manner stated, and if (as it must be) it\nis a wilful and knowing violation, why is it not treated as a crime,\nand, like other such violations of rights, punished by the state\nin order to the better maintenance of rights? (2) Should any other\nreason but the infidelity of husband or wife be allowed for the legal\ndissolution of the marriage-tie? (3) How are the rights connected\nwith marriage related to the morality of marriage?\n\n(1) There is good reason why the state should not take upon itself\nto institute charges of adultery, but leave them to be instituted\nby the individuals whose rights the adultery violates. The reasons\nordinarily alleged would be, _(a)_ the analogy of ordinary breaches\nof contract, against which the state leaves it to the individual\ninjured to set the law in motion; _(b)_ the practical impossibility\nof preventing adultery through the action of the functionaries of\nthe state. The analogy, however, from ordinary breaches of contract\ndoes not really hold. In the first place, though marriage involves\ncontract, though without contract there can be no marriage, yet\nmarriage at once gives rise to rights and obligations of a kind\nwhich cannot arise out of contract, in particular to obligations\ntowards the children born of the marriage. These children, at any\nrate, are in no condition to seek redress--even if from the nature\nof the case redress could be had--for the injuries inflicted on\nthem by a parent's adultery, as a person injured by a breach of\ncontract can seek redress for it. Again, though the state leaves\nit to the individual injured by a breach of contract to institute\nproceedings for redress, if the breach involves fraud, it, at any\nrate in certain cases, treats the fraud as a crime and punishes. Now\nin every breach of the marriage-contract by adultery there is that\nwhich answers to fraud in the case of ordinary breach of contract.\nThe marriage-contract is broken knowingly and intentionally. If there\nwere no reason to the contrary, then, it would seem that the state,\nthough it might leave to the injured individuals the institution of\nproceedings against adultery, should yet treat adultery as a crime\nand seek to prevent it by punishment in the interest of those whose\nvirtual rights are violated by it, though not in the way of breach of\ncontract. But there are reasons to the contrary--reasons that arise\nout of the moral purposes served by the marriage-tie--which make it\ndesirable both that it should be at the discretion of the directly\ninjured party whether a case of adultery should be judicially dealt\nwith at all, and that in no case should penal terror be associated\nwith such a violation of the marriage-bond Under ordinary conditions,\nit is a public injury that a violation of his rights should be\ncondoned by the person suffering it. If the injured individual were\nlikely to fail in the institution of proceedings for his own redress\nor defence, the public interest would require that the matter should\nbe taken out of his hands. But if an injured wife or husband is\nwilling to condone a breach of his or her rights through adultery,\nit is generally best that it should be condoned. That married life\nshould be continued in spite of anything like dissoluteness on\nthe part of husband or wife, is no doubt undesirable. The moral\npurposes which married life should serve cannot be served, either\nfor the married persons themselves or for the children, under such\nconditions. On the other hand, the condonation of a single offence\nwould generally be better for all concerned than an application for\ndivorce. The line cannot be drawn at which, with a view to the higher\nends which marriage should serve, divorce becomes desirable. It is\ntherefore best that the state, while uniformly allowing the right of\ndivorce where the marriage-bond has been broken by adultery (since\notherwise the right of everyone to form a true marriage, a marriage\nwhich shall be the basis of family life, is neutralised,) and taking\ncare that procedure for divorce be cheap and easy, should leave the\nenforcement of the right to the discretion of individuals.\n\n244. On similar grounds, it is undesirable that adultery as such\nshould be treated as a crime, that penal terror should be associated\nwith it. Though rights, in the strict sense, undoubtedly arise out\nof marriage, though marriage has thus its strictly legal aspect, it\nis undesirable that this legal aspect should become prominent. It\nmay suffer in respect of its higher moral purposes, if the element\nof force appears too strongly in the maintenance of the rights to\nwhich it gives rise. If a husband who would otherwise be false to\nthe marriage-bond is kept outwardly faithful to it by fear of the\npunishment which might attend its breach, the right of the wife and\nchildren is indeed so far protected, but is anything gained for those\nmoral ends, for the sake of which the maintenance of these rights\nis alone of value? The man in whom disloyal passion is neutralised\nby fear of punishment will contribute little in his family life to\nthe moral development of himself, his wife, or his children. If he\ncannot be kept true by family affection and sympathy with the social\ndisapprobation attaching to matrimonial infidelity (and unless it is\na matter of social disapprobation no penalties will be effectually\nenforced against it), he will not be kept true in a way that is of\nany value to those concerned by fear of penalties. In other words,\nthe rights that arise out of marriage are not of a kind which can in\ntheir essence be protected by associating penal terror with their\nviolation, as the rights of life and property can be. They are not\nrights to claim mere forbearances or to claim the performance of\ncertain outward actions, by which a right is satisfied irrespectively\nof the disposition with which the act is done. They are claims which\ncannot be met without a certain disposition on the part of the person\nupon whom the claim rests, and that disposition cannot be enforced.\nThe attempt to enforce the outward behaviour in order to satisfy the\nclaim, which is a claim not to the outward behaviour merely but to\nthis in connection with a certain disposition, defeats its own end.\n\n245. For the protection, therefore, of the rights of married persons\nand their children against infidelity, it does not appear that the\nlaw can do more than secure facilities of divorce in the case of\nadultery. This indeed is not in itself a protection against the wrong\ninvolved in adultery, but rather a deliverance from the further\nwrong to the injured husband or wife and to the children that would\nbe involved in the continuance of any legal claim over them on the\npart of the injurer. But indirectly it helps to prevent the wrong\nbeing done by bringing social disapprobation to bear on cases of\ninfidelity, and thus helping to keep married persons faithful through\nsympathy with the disapprobation of which they feel that they would\nbe the objects when they imagine themselves unfaithful. The only\nother effectual way in which the state can guard against the injuries\nin question is by requiring great precaution and solemnity in the\ncontraction of marriages. This it can do by insisting on the consent\nof parents to the marriage of all minors, exacting a long notice\n(perhaps even a preliminary notice of betrothal), and, while not\npreventing civil marriage, by encouraging the celebration of marriage\nin the presence of religious congregations and with religious rites.\n\n246. Question (2) is one that does not admit of being answered on\nany absolute principle We must bear in mind that all rights--in\nidea or as they should be--are relative to moral ends. The ground\nfor securing to individuals in respect of the marriage-tie certain\npowers as rights, is that in a general way they are necessary to\nthe possibility of a morally good life, either directly to the\npersons exercising them or to their children. The more completely\nmarriage is a 'consortium omnis vitae' in the sense of a unity in\nall interests and for the whole of a lifetime, the more likely are\nthe external conditions of a moral life to be fulfilled in regard\nboth to married persons and their children. Therefore the general\nrule of the state in dealing with marriage should be to secure such\npowers as are favourable and withhold such as are not favourable to\nthe 'consortium omnis vitae.' But in the application of the principle\ngreat difficulties arise. Lunacy may clearly render the 'consortium\nomnis vitae' finally impossible; but what kind and degree of lunacy?\nIf the lunatic may possibly recover, though there is undoubtedly\nreason for the separation from husband or wife during lunacy, should\npermanent divorce be allowed? If it is allowed, and the lunatic\nrecovers, a wrong will have been done both to him and to the children\npreviously born of the marriage. On the other hand, to reserve the\nconnubial rights of a lunatic of whose recovery there is hope, and\nto restore them when he recovers, may involve the wrong of bringing\nfurther children into the world with the taint of lunacy upon them.\nIs cruelty to be a ground of divorce, and if so, what amount? There\nis a degree of persistent cruelty which renders 'consortium omnis\nvitae' impossible, but unless it is certain that cruelty has reached\nthe point at which a restoration of any sort of family life becomes\nimpossible, a greater wrong both to wife and children may be involved\nin allowing divorce than in refusing it. A husband impatient for the\ntime of the restraint of marriage may be tempted to passing cruelty\nas a means of ridding himself of it, while if no such escape were\nopen to him he might get the better of the temporary disturbing\npassion and settle down into a decent husband. The same consideration\napplies still more strongly to allowing incompatibility of temper\nas a ground of divorce. It would be hard to deny that it might be\nof a degree and kind in which it so destroyed the possibility of\n'consortium omnis vitae,' that, with a view to the interests of the\nchildren, who ought in such a case to be chiefly considered, divorce\nimplied less wrong than the maintenance of the marriage-tie. But on\nthe other hand, to hold out the possibility of divorce on the ground\nof incompatibility is just the way to generate that incompatibility.\nOn the whole, the only conclusion seems to be that this last ground\nshould not be allowed, and that in deciding on other grounds large\ndiscretion should be allowed to a well-constituted court.\n\n    P. _RIGHTS AND VIRTUES_\n\n247. We have now considered in a perfunctory way those rights which\nare antecedent to the state, which are not derived from it but may\nexist where a state is not, and which it is the office of the state\nto maintain. We have inquired what it is in the nature of man that\nrenders him capable of these rights, what are the moral ends to\nwhich the rights are relative, and in what form the rights should be\nrealised in order to the attainment of these ends. In order to make\nthe inquiry into rights complete, we ought to go on to examine in\nthe same way the rights which arise out of the establishment of a\nstate, the rights connected with the several functions of government;\nhow these functions come to be necessary, and how they may best be\nfulfilled with a view to those moral ends to which the functions of\nthe state are ultimately relative. According to my project, I should\nthen have proceeded to consider the social virtues, and the 'moral\nsentiments' which underlie our particular judgments as to what is\ngood and evil in conduct. All virtues are really social; or, more\nproperly, the distinction between social and self-regarding virtues\nis a false one. Every virtue is self-regarding in the sense that it\nis a disposition, or habit of will, directed to an end which the man\npresents to himself as his good; every virtue is social in the sense\nthat unless the good to which the will is directed is one in which\nthe well-being of society in some form or other is involved, the will\nis not virtuous at all.\n\n248. The virtues are dispositions to exercise positively, in some way\ncontributory to social good, those powers which, because admitting of\nbeing so exercised, society should secure to him; the powers which\na man has a right to possess, which constitute his rights. It is\ntherefore convenient to arrange the virtues according to the division\nof rights. E.g. in regard to the right of all men to free life, the\nobligations, strictly so called, correlative to that right having\nbeen considered (obligations which are all of a negative nature,\nobligations to forbear from meddling with one's neighbour), we\nshould proceed to consider the activities by which a society of men\nreally free is established, or by which some approach is made to its\nestablishment ('really free,' in the sense of being enabled to make\nthe most of their capabilities). These activities will take different\nforms under different social conditions, but in rough outline they\nare those by which men in mutual helpfulness conquer and adapt\nnature, and overcome the influences which would make them victims of\nchance and accident, of brute force and animal passion. The virtuous\ndisposition displayed in these activities may have various names\napplied to it according to the particular direction in which it is\nexerted; 'industry,' 'courage,' 'public spirit.' A particular aspect\nof it was brought into relief among the Greeks under the name of\n\u1f00\u03bd\u03b4\u03c1\u03b5\u03b9\u03b1. [1] The Greek philosophers already gave an extension to the\nmeaning of this term beyond that which belonged to it in popular\nusage, and we might be tempted further to extend it so as to cover\nall the forms in which the habit of will necessary to the maintenance\nand furtherance of free society shows itself. The name, however,\ndoes not much matter. It is enough that there are specific modes of\nhuman activity which contribute directly to maintain a shelter for\nman's worthier energies against disturbance by natural forces and\nby the consequences of human fear and lust. The state of mind which\nappears in them may properly be treated as a special kind of virtue.\nIt is true that the principle and the end of all virtues is the same.\nThey are all determined by relation to social well-being as their\nfinal cause, and they all rest on a dominant interest in some form\nor other of that well-being; but as that interest may take different\ndirections in different persons, as it cannot be equally developed at\nonce in everyone, it may be said roughly that a man has one kind of\nvirtue and not others.\n\n[1] [Greek \u1f00\u03bd\u03b4\u03c1\u03b5\u03b9\u03b1 (andreia) = manliness Tr.]\n\n249. As the kind of moral duties (in distinction from those\nobligations which are correlative to rights) which relate to the\nmaintenance of free society and the disposition to fulfil those\nduties should form a special object of inquiry, so another special\nkind would be those which have to do with the management of property,\nwith the acquisition and expenditure of wealth. To respect the\nrights of property in others, to fulfil the obligations correlative\nto those rights, is one thing; to make a good use of property, to\nbe justly generous and generously just in giving and receiving, is\nanother, and that may properly be treated as a special kind of virtue\nwhich appears in the duly blended prudence, equity, and generosity\nof the ideal man of business. Another special kind will be that\nwhich appears in family relations; where indeed that merely negative\nobservance of right, which in other relations can be distinguished\nfrom the positive fulfilment of moral duties, becomes unmeaning. As\nwe have seen, there are certain aggravations and perpetuations of\nwrong from which husband or wife or children can be protected by law,\nbut the fulfilment of the claims which arise out of the marriage-tie\nrequires a virtuous will in the active and positive sense--a will\ngoverned by unselfish interests--on the part of those concerned.\n\n250. What is called 'moral sentiment' is merely a weaker form of\nthat interest in social well-being which, when wrought into a man's\nhabits and strong enough to determine action, we call virtue. So far\nas this interest is brought into play on the mere survey of action,\nand serves merely to determine an approbation or disapprobation, it\nis called moral sentiment. The forms of moral sentiment accordingly\nshould be classified on some principle as forms of virtue, i.e. with\nrelation to the social functions to which they correspond.\n\n251. For the convenience of analysis, we may treat the obligations\ncorrelative to rights, obligations which it is the proper office of\nlaw to enforce, apart from moral duties and from the virtues which\nare tendencies to fulfil those duties. I am properly _obliged_ to\nthose actions and forbearances which are necessary to the general\nfreedom, necessary if each is not to interfere with the realisation\nof another's will. My _duty_ is to be interested positively in my\nneighbour's well-being. And it is important to understand that,\nwhile the enforcement of obligations is possible, that of moral\nduties is impossible. But the establishment of obligations by law or\nauthoritative custom, and the gradual recognition of moral duties,\nhave not been separate processes They have gone on together in the\nhistory of man. The growth of the institutions by which more complete\nequality of rights is gradually secured to a wider range of persons,\nand of those interests in various forms of social well-being by\nwhich the will is moralised, have been related to each other as the\nouter and inner side of the same spiritual development, though at a\ncertain stage of reflection it comes to be discovered that the agency\nof force, by which the rights are maintained, is ineffectual for\neliciting the moral interests. The result of the twofold process has\nbeen the creation of the actual content of morality; the articulation\nof the indefinite consciousness that there is something that should\nbe--a true well-being to be aimed at other than any pleasure or\nsuccession of pleasures--into the sentiments and interests which\nform an 'enlightened conscience.' It is thus that when the highest\nstage of reflective morality is reached, and upon interests in this\nor that mode of social good there supervenes an interest in an ideal\nof goodness, that ideal has already a definite filling; and the man\nwho pursues duty for duty's sake, who does good for the sake of being\ngood or in order to realise an idea of perfection, is at no loss to\nsay what in particular his duty is, or by what particular methods the\nperfection of character is to be approached.\n\nSUPPLEMENT.\n\n_Some Quotations rendered into English._\n\nFrom Sect. 32. _Tractatus Politici_, II. 4 ('Per jus itaque'). 'By\nright of nature (natural right) I understand ... the actual power of\nnature.' 'Whatever an individual man does by the laws of his nature,\nthat he does with the highest natural right, and his right towards\nnature goes just as far as his power holds out.'\n\n'Jus naturae' = 'natural right.' 'Potentia' = 'power.' 'Jus' =\n'right.' 'Jus humanum' = 'right of man,' or 'right _qua_ human.'\n\n_Ib_. II. 5 ('Homines magis'). 'Human beings are led more by blind\ndesire than by reason; and hence their natural power or right should\nbe marked out not by reason but by any inclination by which they\nare determined to act, and by which they endeavour after their own\npreservation.'\n\n'Jus civile' = 'civic right or law.'\n\n_Ib_. II. 14 ('Quatenus homines'). 'In as far as human beings are\ntroubled by anger, jealousy, or any emotion of hate, so far they are\ndrawn in different directions and are antagonistic to one another,\nand therefore they are more to be feared in so far as they are more\npowerful, and more shrewd and astute, than the other animals; and\nbecause human beings are in the highest degree liable by nature to\nthese emotions, therefore they are natural enemies (to one another).'\n\n_Ib_. 15 ('Atque adeo'). 'And so we conclude that natural right can\nhardly be conceived unless where human beings have laws in common,\n(human beings) who have power at once to assert possession of the\nlands which they are able to inhabit and to till, and to defend\nthemselves, and to repel all violence, and to live in accordance\nwith the common sentiment of all. For (by art. 13 of this chapter)\nthe more that thus come together into one, the more right they all\ntogether possess.'\n\n_Ib_. 16 ('Ubi homines'). 'Where human beings have laws in common\nand all together are guided as by one mind, it is certain (by art.\n13 of this chapter) that each of them has so much the less right as\nthe rest are together more powerful than he; that is, that he in fact\nhas no right over nature beyond that which the common (social) law\nconcedes him. But whatever is enjoined upon him by common consent, he\nis bound to perform, or (by art. 4 of this chapter) he is compelled\nto it by law.'\n\n_Ib_. 17 ('Hoc jus'). 'This law (or right), which is coextensive\nwith the power of the plurality, is usually called 'imperium'\n('authority,' 'government').\n\n_Ib_. III. 2 ('Multitudinis quae'). 'Of a number or plurality, which\nis guided as if by a single mind.' 'Status civilis' = 'civic, or\nsocial, condition.'\n\n_Ib_. III. 3 ('Homo ex legibus'). [In the civic condition as well as\nin the state of nature] 'man acts from the laws of his own nature\nand consults his own interest.' 'Sui juris' = 'in its own right,'\n'autonomous.'\n\nSect. 33 (1). _Ib_. III. 7 ('Civitatis jus'). 'The right of the state\nis coextensive with the power of the plurality which is guided as if\nby one mind. But this oneness of minds is inconceivable, unless the\nstate has for its main intention what sound reason shows to be for\nthe interest of all men.'\n\n(2). _Ib_. III. 8 ('Subditi eatenus'). 'Subjects are not in their own\nright, but under the right (or law) of the state, so far as they fear\nits power or threats, or so far as they love the social condition\n(by art. 10 of preceding chapter). From which it follows, that all\nthose acts to which no one can be impelled by rewards or threats lie\noutside the right (or law) of the state.'\n\n(3). _Ib_. III. 9 ('Ad civitatis jus'). 'That belongs to the right\nof the state in a less degree, which causes indignation in a greater\nnumber.' ('Sicut'). 'Like the individual citizen, or the man in a\nstate of nature, the state is less in its own right in proportion as\nit has greater cause for fear.'\n\nSect. 34. _Ib_. III. 11 ('Nam quandoquidem'). 'For seeing that (by\nart. 2 of this chapter) the right of the supreme power is nothing but\nthe actual right of nature, it follows that two governments are to\none another as two men in the state of nature, except that the state\ncan defend itself against external aggression in a way impossible for\nman in a state of nature, inasmuch as he is overcome daily by sleep,\noften by disease or distress, and in the end by old age, and besides\nthis is exposed to other inconveniences, against which the state can\nprotect itself.'\n\n_Ib_. III. 13 ('Duae civitates'). 'Two states are natural enemies.\nFor men in the state of nature are enemies. Those, therefore, who\nretain the right of nature, as not being in the same state, are\nenemies.'\n\n_Ib_. III. 14 ('Nec dici potest'). 'Nor can it be said to act with\ncraft or perfidy in that it dissolves its promise as soon as the\ncause of fear or hope is removed; because this condition was the same\nfor both contracting parties, that whichsoever is first enabled to be\nfree from fear should be in its own right, and should use its right\naccording to the sentiment of its mind; and, moreover, because no one\ncontracts for the future except on supposition of the circumstances\nunder which he contracts.'\n\nSect. 35. _Ib_. II. 18 ('In statu'). 'In a state of nature there\ncan be no transgression, or if one transgresses, he does so against\nhimself, not against another; ... nothing is absolutely forbidden by\nthe law of nature, except what no one has power to do.'\n\n'Commune decretum' = 'the common (or social) behest.'\n\n_Ib_. V. 1 ('Non id omne'). 'Not everything which we say is done\nrightfully, do we affirm to be the best to be done. It is one thing\nto till a field within your right, and another thing to till it in\nthe best way; it is one thing, I say, to defend yourself, preserve\nyourself, give judgment &c. within your right, and another thing to\ndo all these acts in the best way; and accordingly it is one thing to\ngovern and manage a state within its rights, and another thing to do\nthis in the best way. Thus, now that we have treated in general of\nthe right of every state, it is time to treat of the best condition\nof every state.'\n\n'Finis status civilis' = 'the end or aim of the civic or social\ncondition.'\n\n_Ib_. V. 2 ('Homines enim'). 'Men are not born of civic temper, but\nbecome so. Moreover, the natural dispositions of men are everywhere\nthe same.'\n\n_Ib_. V. 4 ('Pax enim'). 'Peace is not absence of war, but a virtue\nwhich arises from fortitude of mind; for obedience is a constant will\nto perform that which the common behest of the state requires to be\ndone.'\n\n_Ethics_, III. 59, Schol. (in footnote on preceding passage) ('Omnes\nactiones'). 'All the actions which follow from the affects which\nare related to the mind, in so far as it thinks, I ascribe to\n_fortitude_, which I divide into _strength of mind_ and _generosity_.\nBy _strength of mind_ I mean the desire by which each person\nendeavours, from the dictates of reason alone, to preserve his own\nbeing. By _generosity_ I mean the desire by which, from the dictates\nof reason alone, each person endeavours to help other people and to\njoin them to him in friendship.'\n\n('Quae maxime'). 'Which is mainly coextensive with reason, the true\nvirtue and life of the mind.'\n\n('Quod multitudo libera'). [An authority which] 'a free plurality\ninstitutes, not one which is acquired against the plurality by the\nright of war.'\n\nSect. 36. 'Suum esse conservare' = 'to preserve his own being.'\n\n'Homini nihil' = 'nothing is more useful to man, than man.'\n\n'Homo namque.' See on sect. 32.\n\n'Constans voluntas.' See on sect. 35.\n\n'Vitam concorditer transigere' = 'to live in harmony.'\n\nFootnote on 'Libera multitudo,' II. 11 ('Hominem eatenus'). 'The\nsense in which at all I call a man _free_ is in so far as he is\nguided by reason; because thus far he is determined to action by\ncauses which can be adequately understood out of his nature alone,\nalthough by them he be necessarily determined to action. For freedom\nof action does not deny but affirms necessity.'\n\nOn Sect. 37. II. 15 ('Jus naturae'). See on sect. 32.\n\nOn Sect. 39. \u03c0\u03cc\u03bb\u03b9\u03c2 (polis) = state, including much that we mean by\n'society.'\n\n\u03c4\u03ad\u03bb\u03bf\u03c2 (telos) = end, aim, final cause.\n\n\u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2 (polites) = citizen.\n\n\u03c6\u03cd\u03c3\u03b5\u03b9 \u03c0\u03bf\u03bb\u03b9\u03c4\u03b9\u03ba\u03cc\u03c2 (phusei politikos) = social, or civic, by nature.\n\n\u03c0\u03bf\u03bb\u03af\u03c4\u03b7\u03c2 \u03bc\u03b5\u03c4\u03ad\u03c7\u03b5\u03b9 \u03c4\u03bf\u1fe6 \u1f04\u03c1\u03c7\u03b5\u03b9\u03bd \u03ba\u03b1\u1f76 \u03c4\u03bf\u1fe6 \u1f04\u03c1\u03c7\u03b5\u03c3\u03b8\u03b1\u03b9 (polites metechei) 'The\ncitizen takes his share both in governing and in being governed.'\n\nOn Sect. 40. Footnote, _Eth_. IV. _Appendix_, xxxii ('Ea quae').\n'We shall bear with equanimity those things which happen to us\ncontrary to what a consideration of our own profit demands, if we are\nconscious that we have performed our duty, that the power we have\ncould not reach so far as to enable us to avoid those things, and\nthat we are a part of the whole of nature, whose order we follow.\nIf we clearly and distinctly understand this, the part of us which\nis determined by intelligence--that is to say, the better part of\nus--will be entirely satisfied therewith, and in that satisfaction\nwill endeavour to persevere; for, in so far as we understand, we\ncannot desire anything excepting what is necessary, nor absolutely\ncan we be satisfied with anything but the truth. Therefore, in so\nfar as we understand these things properly will the efforts of the\nbetter part of us agree with the whole order of nature.' _Eth_. IV.\n_Preface_ ('Per bonum'). 'By good, therefore, I understand in the\nfollowing pages everything which we are certain is a means by which\nwe may approach nearer and nearer to the model of human nature we\nset before us.... Again, I shall call men more or less perfect or\nimperfect in so far as they approach nearer and nearer to the model\nof human nature we set before us.'\n\nOn Sect. 41. 'Nihil positivum in rebus in se consideratis' = 'nothing\npositive in things considered in themselves.'\n\nIn all the quotations from Spinoza's_ Ethics_ Mr. Hales White's\ntranslation has been followed.","title":"Lectures on the Principles of Political Obligation: Reprinted from Green's Philosophical Works, vol. II., with Preface by Bernard Bosanquet","tradition":"philosophy-ethics","translated_text":null,"word_count":112028}