207. The right of the individual man as such to free life is
constantly gaining on its negative side more general recognition. It
is the basis of the growing scrupulosity in regard to punishments
which are not reformatory, which put rights finally out of the reach
of a criminal instead of qualifying him for their renewed exercise.
But the only rational foundation for the ascription of this right
is the ascription of capacity for free contribution to social good.
We treat this capacity in the man whose crime has given proof of
its having been overcome by anti-social tendencies, as yet giving
him a title to a further chance of its development; on the other
hand, we act as if it conferred no title on its possessors, before
a crime has been committed, to be placed under conditions in which
its realisation would be possible. Is this reasonable? Yet are not
all modern states so acting? Are they not allowing their ostensible
members to grow up under conditions which render the development of
social capacity practically impossible? Was it not more reasonable,
as in the ancient states, to deny the right to life in the human
subject as such, than to admit it under conditions which prevent the
realisation of the capacity that forms the ground of its admission?
This brings us to the fourth of the questions that arose [1] out of
the assertion of the individual's right to free life. What is the
nature and extent of the individual's claim to be enabled positively
to realise that capacity for freely contributing to social good which
is the foundation of his right to free life?
[1] [Above, sec. 156. RLN]
208. In dealing with this question, it is important to bear in mind
that the capacity we are considering is essentially a free or (what
is the same) a moral capacity. It is a capacity, not for action
determined by relation to a certain end, but for action determined
by a conception of the end to which it is relative. Only thus is
it a foundation of rights. The action of an animal or plant may
be made contributory to social good, but it is not therefore a
foundation of rights on the part of an animal or plant, because
they are not affected by the conception of the good to which they
contribute. A right is a power of acting for his own ends,--for
what he conceives to be his good,--secured to an individual by the
community, on the supposition that its exercise contributes to the
good of the community. But the exercise of such a power cannot be so
contributory, unless the individual, in acting for his own ends, is
at least affected by the conception of a good as common to himself
with others. The condition of making the animal contributory to human
good is that we do not leave him free to determine the exercise of
his powers; that we determine them for him; that we use him merely
as an instrument; and this means that we do not, because we cannot,
endow him with rights. We cannot endow him with rights because
there is no conception of a good common to him with us which we can
treat as a motive to him to do to us as he would have us do to him.
It is not indeed necessary to a capacity for rights, as it is to
true moral goodness, that interest in a good conceived as common to
himself with others should be a man's dominant motive. It is enough
if that which he presents to himself from time to time as his good,
and which accordingly determines his action, is so far affected by
consideration of the position in which he stands to others,--of
the way in which this or that possible action of his would affect
them, and of what he would have to expect from them in return,--as
to result habitually, without force or fear of force, in action not
incompatible with conditions necessary to the pursuit of a common
good on the part of others. In other words, it is the presumption
that a man in his general course of conduct will of his own motion
have respect to the common good, which entitles him to rights at
the hands of the community. The question of the moral value of the
motive which may induce this respect--whether an unselfish interest
in common good or the wish for personal pleasure and fear of personal
pain--does not come into the account at all. An agent, indeed, who
could only be induced by fear of death or bodily harm to behave
conformably to the requirements of the community, would not be a
subject of rights, because this influence could never be brought to
bear on him so constantly, if he were free to regulate his own life,
as to secure the public safety. But a man's desire for pleasure
to himself and aversion from pain to himself, though dissociated
from any desire for a higher object, for any object that is desired
because good for others, may constitute a capacity for rights, if
his imagination of pleasure and pain is so far affected by sympathy
with the feeling of others about him as to make him, independently of
force or fear of punishment, observant of established rights. In such
a case the fear of punishment may be needed to neutralise anti-social
impulses under circumstances of special temptation, but by itself it
could never be a sufficiently uniform motive to qualify a man, in the
absence of more spontaneously social feelings, for the life of a free
citizen. The qualification for such a life is a spontaneous habit
of acting with reference to a common good, whether that habit be
founded on an imagination of pleasures and pains or on a conception
of what ought to be. In either case the habit implies at least an
understanding that there is such a thing as a common good, and a
regulation of egoistic hopes and fears, if not an inducing of more
'disinterested' motives, in consequence of that understanding.
209. The capacity for rights, then, being a capacity for spontaneous
action regulated by a conception of a common good, either so
regulated through an interest which flows directly from that
conception, or through hopes and fears which are affected by it
through more complex channels of habit and association, is a capacity
which cannot be generated--which on the contrary is neutralised--by
any influences that interfere with the spontaneous action of social
interests. Now any direct enforcement of the outward conduct,
which ought to flow from social interests, by means of threatened
penalties--and a law requiring such conduct necessarily implies
penalties for disobedience to it--does interfere with the spontaneous
action of those interests, and consequently checks the growth of
the capacity which is the condition of the beneficial exercise of
rights. For this reason the effectual action of the state, i.e. the
community as acting through law, for the promotion of habits of
true citizenship, seems necessarily to be confined to the removal
of obstacles. Under this head, however, there may and should be
included much that most states have hitherto neglected, and much that
at first sight may have the appearance of an enforcement of moral
duties, e.g. the requirement that parents have their children taught
the elementary arts. To educate one's children is no doubt a moral
duty, and it is not one of those duties, like that of paying debts,
of which the neglect directly interferes with the rights of someone
else. It might seem, therefore, to be a duty with which positive law
should have nothing to do, any more than with the duty of striving
after a noble life. On the other hand, the neglect of it does tend
to prevent the growth of the capacity for beneficially exercising
rights on the part of those whose education is neglected, and it is
on this account, not as a purely moral duty on the part of a parent,
but as the prevention of a hindrance to the capacity for rights on
the part of children, that education should be enforced by the state.
It may be objected, indeed, that in enforcing it we are departing in
regard to the parents from the principle above laid down; that we are
interfering with the spontaneous action of social interests, though
we are doing so with a view to promoting this spontaneous action
in another generation. But the answer to this objection is, that a
law of compulsory education, if the preferences, ecclesiastical or
otherwise, of those parents who show any practical sense of their
responsibility are duly respected, is from the beginning only felt
as compulsion by those in whom, so far as this social function is
concerned, there is no spontaneity to be interfered with; and that in
the second generation, though the law with its penal sanctions still
continues, it is not felt as a law, as an enforcement of action by
penalties, at all.
210. On the same principle the freedom of contract ought probably
to be more restricted in certain directions than is at present the
case. The freedom to do as they like on the part of one set of men
may involve the ultimate disqualification of many others, or of a
succeeding generation, for the exercise of rights. This applies most
obviously to such kinds of contract or traffic as affect the health
and housing of the people, the growth of population relatively to
the means of subsistence, and the accumulation or distribution of
landed property. In the hurry of removing these restraints on free
dealing between man and man, which have arisen partly perhaps from
some confused idea of maintaining morality, but much more from the
power of class-interests, we have been apt to take too narrow a view
of the range of persons--not one generation merely, but succeeding
generations--whose freedom ought to be taken into account, and of
the conditions necessary to their freedom ('freedom' here meaning
their qualification for the exercise of rights). Hence the massing
of population without regard to conditions of health; unrestrained
traffic in deleterious commodities; unlimited upgrowth of the class
of hired labourers in particular industries which circumstances have
suddenly stimulated, without any provision against the danger of an
impoverished proletariate in following generations. Meanwhile, under
pretence of allowing freedom of bequest and settlement, a system has
grown up which prevents the landlords of each generation from being
free either in the government of their families or in the disposal of
their land, and aggravates the tendency to crowd into towns, as well
as the difficulties of providing healthy house-room, by keeping land
in a few hands. It would be out of place here to consider in detail
the remedies for these evils, or to discuss the question how far it
is well to trust to the initiative of the state or of individuals in
dealing with them. It is enough to point out the directions in which
the state may remove obstacles to the realisation of the capacity for
beneficial exercise of rights, without defeating its own object by
vitiating the spontaneous character of that capacity.