LIBERTY AND LAW
WE have spoken of the practical defects and dangers inherent in the
various proposals that look to the rectification of industrial wrongs.
But there is one source of opposition to these proposals that requires
more extended consideration-the fear that they-and especially
socialism-unduly threaten that ideal of personal liberty which our
fathers so passionately served and we have come to look upon as the
cornerstone of our prosperity. What is this ideal of liberty, and how
should it affect our efforts at industrial regeneration? What are the
essential aspects of the ideal of liberty? Throughout a long stretch
of human history one of the most vexing obstacles to general happiness
and progress has been the irresponsible power of sovereigns and
oligarchies. To generations it has seemed that if freedom from selfish
tyranny could but be won, the millennium would be at hand. Our heroes
have been those who fought against despots for the rights of the
people; we measure progress by such milestones as the Magna Charta,
the French Revolution, the American Declaration of Independence. To
this day we engrave the word "liberty" on our coins; and the converging
multitudes from Europe look up eagerly to the great statue that
welcomes them in New York Harbor and symbolizes for them the freedom
that they have often suffered so much to gain. In Mrs. Hemans's hymn,
in Patrick Henry's famous speech, in Mary Antin's wonderful
autobiography, The Promised Land, we catch glimpses of that devotion
to liberty which, it is now said, we are jeopardizing by our increasing
mass of legislative restraints and propose to banish for good and all
by an indefinite increase in the powers of the State. More than a
generation ago Mill wrote: "There is in the world at large an
increasing inclination to stretch unduly the powers of society over
the individual, both by the force of opinion and even by that of
legislation; and as the tendency of all the changes taking place in
the world is to strengthen society, and diminish the power of the
individual, this encroachment is not one of the evils which tend
spontaneously to disappear, but, on the contrary, to grow more and
more formidable."[Footnote: Essay on Liberty, Introductory.] Not a
few observers today are reiterating this note of alarm with increasing
emphasis. Are their fears well founded? We may at once agree in
applauding the liberty worship of our fathers and of our contemporaries
in the more backward countries. No secure steps in civilization can
be taken until liberty of body, of movement, and of possession are
guaranteed; there must be no fear of arbitrary execution, arrest, or
confiscation. To this must be added liberty of conscience, of speech,
and of worship; the right of free assembly, a free press, and that
"freedom to worship God" that the Pilgrims sought. Wherever these
rights, so fundamental to human happiness, are impugned, "Liberty!"
is still the fitting rallying-cry.[Footnote: The exact limits within
which freedom of speech must be allowed are debatable, (a) Speech which
incites to crime, to lawbreaking, to sexual and other vice, must be
prevented; and (b) slander, the public utterance of grossly disparaging
statements concerning any person, without reasonable evidence of their
truth. May we attempt to stifle the utterance of (c) such other
untruths as are inexcusable in the light of our common knowledge? There
are certainly many matters where there is no longer room for legitimate
difference of opinion; and the general diffusion of correct knowledge
is greatly retarded by the silly utterances of uninformed people. Yet
to draw the line here is so difficult that we must probably tolerate
this evil forever rather than run the risk of stifling some generally
unsuspected truth.] rights are safely won; the danger now is rather
of abusing them. We must not forget that liberty is only a means, not
an end in itself, to be restricted in so far as may be necessary for
the greatest happiness. From our discussion in Part II it should be
clear that there are no "natural rights" which the community is bound
to respect; liberty must be granted the individual so far, and only
so far, as it does not impede the general welfare. We do not hesitate
to end the liberty, or even to take the life, of those we deem dangerous
to society. We do not hesitate to confiscate the land which we deem
necessary for a highway or railroad or public building. Indeed, we
hedge personal liberty about with a thousand restrictions by general
consent, in the realization that public interests must come before
private. We have no need to discuss the doctrine of anarchism
[Footnote: For an eloquent defense of anarchism see Tolstoy's writings;
here is a sample statement: "For a Christian to promise to subject
himself to any government whatsoever-a subjection which may be
considered the foundation of state life-is a direct negation of
Christianity." (Kingdom of God, chap. IX.) Cf. this utterance of one
of the Chicago anarchists of 1886. "Whoever prescribes a rule of action
for another to obey is a tyrant: usurper, and an enemy of liberty."]-
unrestricted liberty since the general chaos that would result there
from, in the present stage of human nature, is sufficiently apparent.
Liberty can never be absolute. Indeed, there has been a curious
reversal of situation. The older cry of liberty that stirs us was a
cry of the oppressed masses against their masters; now it is a slogan
of the privileged upper classes against that increasing popular
legislation which restricts their powers. Kings are now but
figureheads, if they linger at all, in our modern democracies;
governments are not irresponsible masters of the people, they are
instruments for carrying out the popular will. The real tyrants now,
those whose irresponsible authority is dangerous to the masses, are
the kings of industry; if the cry of "liberty" is to be raised again,
it should be raised, according to all historical precedent, in behalf
of the slaves of modern industry rather than in behalf of the fortunate
few who give up so grudgingly the practical powers they have usurped.
There were those, indeed, who fought passionately for the divine right
of kings, those who died to maintain the right of a white man to hold
Negroes as slaves; there are those today who with a truly religious
fervor uphold the right of the capitalistic class to manage the
industries of the country at their own sweet will, unhampered by such
legislative restrictions as the majority may deem expedient for the
general welfare. But it is a travesty on the sacred word "liberty"
that it should be thus invoked to uphold the prerogatives of the favored
few. Liberty, in the sense in which it is properly an ideal for man,
connotes the right to all such forms of activity as are consonant with
the greatest general happiness, and to no others. It implies the right
not to be oppressed, not the right to oppress. Mere freedom of contract
is not real freedom, if the alternative be to starve; such formal
freedom may be practical slavery. The real freedom is freedom to live
as befits a man; and it is precisely because such freedom is beyond
the grasp of multitudes today that our system of "free contract" is
discredited; it offers the name of liberty without the reality. But
apart from this questionable appeal to the ideal of liberty, there
are not a few who sincerely believe, on grounds of practical expediency,
that legislation ought not to interfere any more than proves absolutely
necessary with the conduct of industry. This scheme of individualism
we will now consider.
The ideal of individualism. The individualistic, or laissez-faire,
ideal dates perhaps from Rousseau and the French doctrinaires; its
best-known representatives in English speech are Mill and Spencer.
Dewey and Tufts have pithily expressed it as follows: "The moral end
of political institutions and measures is the maximum possible freedom
of the individual consistent with his not interfering with like freedom
on the part of other individuals."[Footnote: Ethics, p. 483.] Its leading
arguments may be presented and answered, summarily, as follows:
(1) Legislation has so often been mischievous that it is well to have
as little of it as possible. The masses are uneducated, the prey of
impulse and passion; politics are corrupt; to submit the genius of
free ENTREPRENEURS to the clumsy and ill-fitted yoke of a popularly
wrought legal control is to stifle their enterprise and interfere with
their chances of success. After all, every one knows his own needs
best; and if we leave people alone, they will secure their own welfare
better than if we try to dictate to them how they shall seek it. "Out
of the fourteen thousand odd acts which, in our own country, have been
repealed, from the date of the Statute of Merton down to 1872 . . .
how many have been repealed because they were mischievous? . . . Suppose
that only three thousand of these acts were abolished after proved
injuries had been caused, which is a low estimate. What shall we say
of these three thousand acts which have been hindering human happiness
and increasing human misery; now for years, now for generations, now
for centuries?"[Footnote: H. Spencer, Principles of Ethics, part IV,
sec. 131.] But to admit that much legislation has been blundering is
not to admit that the principle of social control is wrong. Our political
system must, indeed, be made must be placed in the way of overhasty
and ill-considered lawmaking. But it is not always true that the
individual is the best judge of his own ultimate interests; and it
is demonstrably untrue that the pursuit by each of what he deems best
for himself will bring the greatest happiness for all. The stronger
and more favorably situated will take advantage of their position and
resources; the weaker, though theoretically free, will in reality be
under the handicap of poverty, ignorance, hunger. Such a system is
inevitably vicious in its moral effects. To say that in a popular
government legislation cannot properly standardize practice, cannot
formulate a higher code of public morality than men can be depended
upon to attain if unrestrained, is unwarrantably to discredit democracy.
If the laws are bad, improve them. If the public is uneducated, educate
it. If our system gives us poor lawmakers, change the system. But to
give up the attempt at legal control, to leave things as they are or
rather, to leave them to go from bad to worse, is unthinkable.
(2) Too much legislation stifles individuality, drags genius down to
the dead level of average ideas, tends to produce an unprogressive
uniformity of practice. It imposes the conceptions of the past upon
the future. "If the measures have any effect at all, the effect must
in part be that of causing some likeness among the individuals; to
deny this is to deny that the process of molding is operative. But
in so far as uniformity results advance is retarded. Every one who
has studied the order of nature knows that without variety there can
be no progress."[Footnote: H. Spencer, op. cit, sec. 138.] "Persons
of genius, it is true, are, and are always likely to be, a small
minority; but in order to have them it is necessary to preserve the
soil in which they grow. Genius can only breathe freely in an atmosphere
of freedom. ... It is important to give the freest scope possible to
uncustomary things, in order that it may in time appear which of these
are fit to be converted into customs." [Footnote: J. S. Mill, On Liberty,
chap. III.] But the intention of social legislation is to check only
such individual action as is demonstrably detrimental; the uniformity
produced will be only a uniform absence of flagrant wrongs and adoption
of such positive precautions as will make the detection and checking
of these harmful acts easy. Beyond this minimum uniformity (which,
however, must include an enormous number of details, so manifold have
the possibilities of wrongdoing become) there will on any system be
ample range for the development of new methods and processes. Whatever
danger there once was in choking individual initiative by needlessly
paralyzing restrictions, will be, in the long run, negligible in an
age of omnivorous reading and free discussion, and in a land whose
conscious ideal is improvement, new invention, progress. As a matter
of fact, it is chiefly through legislation that new methods of social
practice become diffused. Each of our forty-eight States is
experimenting in social guidance, trying to thwart this or that sin,
to remedy this or that wrong, to work out a plan by which men can happily
cooperate in our complex public life. The process of evolving an
efficient and frictionless social machine, instead of being retarded
by this activity of lawmaking, is actually accelerated thereby. Private
business tends to fall into ruts; and one man's ideals are blocked
by lack of cooperation from others. Legislation tends not only to
preserve the best of past experiments; but, goaded by the zeal of
reformers, and pushed by political parties, to drag complacent and
inert individuals along new and untried paths. The greatest field for
genius lies today in devising successful constructive legislation;
and the greatest hope for progress in this era of mutual dependence
lies in the winning of a majority for some social scheme that must
be generally adopted if at all.
(3) Laws, however beneficent, which rise above the general conscience
of the people are undesirable; character should precede legislation.
"To conform to custom, merely as custom, does not educate or develop
in [a man] any of the qualities which are the distinctive endowment
of a human being. . . . He who does anything because it is the custom
makes no choice. He gains no practice either in discerning or in desiring
what is best. The mental and moral, like the muscular powers, are
improved only by being used. . . . It is possible that he might be
guided in some good path, and kept out of harm's way, without [using
his own judgment, powers of decision, self control, etc.] But what
will be his comparative worth as a human being? It really is of
importance, not only what men do, but also what manner of men they
are that do it." [Footnote: J. S. Mill, op. cit, chap. III.] A little
common sense will show us, however, that there are, and always will
be, plenty of occasions for exercising our moral muscle, however closely
we hedge in the field of legitimate activity. Prone to temptation as
men are, and beset by a thousand wrong impulses, we may well seek to
block this and that path of possible wrongdoing without fear of turning
them mechanically into saints. On the contrary, we should hasten to
use the experience of the past to avert needless temptations from the
men of the future.
Our experience has been costly enough; and if it has revealed its
lessons too late to save contemporary social life, at least it should
serve as warning for our sons. To sacrifice right conduct to moral
gymnastics is to set up the means as more important than the end; every
good act that can be lifted from the plane of moral struggle and put
securely on the plane of habit is a step in human progress, and leaves
men freer to grapple with the remaining temptations. If you wish to
educate men up to a law, put it upon the statute books if you can,
compel attention to it and discussion of the reasons pro and con,
show its practical workings; it is far easier to educate conscience
up to an existing law than beyond it. Moreover, it must be said that
those who prefer to see men left to think things out anew for
themselves, without the restraint and guidance of the law,
show a singular callousness toward those whom their action,
if they choose wrongly, will hurt. If we could trust men to
choose aright-but we cannot; and men must be protected
against their own stupidity and weakness, and that of others,
by the collective wisdom and will.
(4) Individualism makes for prosperity. Offering a fair chance to all,
it brings the best to the top; the fittest survive, and win the
positions of power; the community as a whole is, then, in the end
advantaged. "Free competition in profits coordinates industrial
efficiency and industrial reward.This is equality of opportunity,
through which every man is rewarded according to his worth
to the consumer." [Footnote: F. Y. Gladney, in the Outlook, vol. 101,
p. 261.] Unfortunately, however, it is those who are fittest to serve
not the community but their own interests that have the best chance
to survive-the clever, the privileged, the unscrupulous. Nor is there
equality of opportunity where some will not play fair and others have
a long start. The individualistic struggle makes for the selection
of a type of greedy, self-centered man, with little sense of social
responsibility. Even granted that the men who reach the top are the
men best fitted to manage the industries of the country, this method
of selection of leaders is too wasteful of strength, too hard on the
unsuccessful, to be generally profitable. The prosperity of modern
industry is due not primarily to its chaotic plan of individual effort
and cross-purposes, but to the measure of cooperation we have
nevertheless attained, with its consequent division and specialization
of labor and large-scale production, aided by the extraordinary
development of invention and machinery. The ideal of legal control.
The epoch of ultra individualism, of what Huxley called "administrative
nihilism," is rapidly passing. Jane Addams speaks of "the inadequacy
of those eighteenth-century ideals the breakdown of the machinery
which they provided," pointing out that "that worldly wisdom which
counsels us to know life as it is" discounts the assumption "that if
only the people had freedom they would walk continuously in the paths
of justice and righteousness." [Footnote: Newer Ideals of Peace, pp.
31-32.] H. G. Wells remarks, "We do but emerge now from a period of
deliberate happy- go-lucky and the influence of Herbert Spencer, who
came near raising public shiftlessness to the dignity of a natural
philosophy. Everything would adjust itself-if only it was left alone."
[Footnote: Social Forces in England and America, p. 80.] It is becoming
clear that we cannot trust to education and the conscience of
individuals to right matters, not only because as yet we provide no
moral education of any consequence for our youth, but because, if we
did, the temptations in a world where every man is free to grab for
himself would still be almost irresistible. But there are two positive
arguments for the extension of legal control that clinch the matter:
(1) Without the support of the law it is often impossible for the
conscientious man to act in a purely social spirit. The competition
of those who are less answerable to moral motives forces him to lower
his own ideals if he would not see his business ruined. The employer
of child labor in one factory cannot afford to hire adults, at their
higher wage, until all the other factories give up the cheaper labor
also. Where sweatshop labor produces cheap clothing for some
manufacturers, the more scrupulous are undersold. One employer cannot,
unless he is unusually prosperous, raise the wages of his employees
or shorten their hours until his competitors do likewise. Improvement
of conditions must take place all along the line or not at all. And
since unanimous voluntary consent is practically impossible to obtain,
and of precarious duration if obtained, the legal enforcement of common
standards is necessitated.
(2) Men generally are willing to bind themselves by law to higher codes
than they will live up to if not bound. In their reflective moments,
when they are deciding how to vote, temptations are less insistent
and ideals stronger than when they are confronting concrete situations.
To vote for a law which will restrain others, and incidentally one's
self, comes easier than to make a purely personal sacrifice that leaves
general practice unaltered. To realize that this is true, we need but
look at the remarkable ethical gains made now year by year through
laws voted for by many of the very men whose practice had hitherto
been upon a lower moral level. Very many evils that once seemed fastened
upon society have been thus legislated out of existence.[Footnote:
For a vivid picture of earlier industrial conditions which would not
now be tolerated, see Charles Reade's Put Yourself in His Place.] And
if the industrial situation still seems wretched, it is because, in
our swift advance, new evils are arising about as fast as older evils
are eradicated. The law necessarily lags behind the spread of abuses,
so that "there will probably always be a running duel between anti-social
action and legislation designed to check it. Novel methods of
corruption will constantly require novel methods of correction . .
But this constant development of the law should make corrupt
practices increasingly difficult for the less gifted rascals who must
always constitute the great majority of would-be offenders." [Footnote:
R. C. Brooks, Corruption in American Politics and Life, p. 99.] The
law can never, of course, cover the whole field of human conduct; it
represents, in Stevenson's phrase," that modicum of morality which
can be squeezed out of the rock of mankind." Unnecessary extension
of the law is cumbersome, expensive, and provocative of impatience
and rebellion. Moreover, there is always some minimum of danger of
injustice in attempting legal constraint; the law itself, as approved
by the majority, may be unfair, or its application to the concrete
case may be unfair. The individualists are right in feeling that men
must be left alone, wherever the possible results are not too dangerous.
But no hard-and-fast line can be drawn between activities that must
be left free and those which must be regulated. Such apparently personal
matters as the use of opium or alcohol must be checked because the
general happiness is, in the end, greatly and obviously enhanced by
such restraint. But there will always be, beyond the law, a wide field
for the satisfaction of personal tastes and the practice of generosity.
There is no double standard; if an act is legally right and morally
wrong, that simply means that it lies beyond the boundaries of the
limited field which the law covers. The extension of that field is
a matter of practical expediency in each type of situation; beyond
that field, but working to the same ends, the forces of education and
public opinion are alone available. [Footnote: For a discussion of
this point, see F. Paulsen, System of Ethics, book III, chap. IX, sec.
9. International Journal of Ethics, vol. 18, p. 18.] Should existing
laws always be obeyed? Year by year we are extending our network of
laws over human conduct; more and more pertinent becomes the them?
and the further question, Are there times when the law may be rightly
disobeyed? We shall discuss the second question first. It is obvious
that our whole social structure rests upon the willingness of the
people to obey the law. The watchword of republics should be, not
"liberty," but "obedience"; their gravest danger now is not tyranny,
but anarchy. We must individually submit with patience and good temper
to the decisions of the majority, even if we disapprove those
decisions. We must abide by the rules of the game until we can get
the rules changed. And all changes must be effected according to the
rules agreed upon for effecting changes. This law-abiding spirit is
the great triumph of democracy; only so long as it exists can popular
government stand. Though it be slower and exacting of greater effort
and skill, evolution, not revolution, is the method of permanent
progress. We must, then, band together against any groups that, in
their impatience of reform or opposition to the common will, cast aside
the restraints of law. However dearly we may long for woman's suffrage,
we must sternly repress those excited suffragettes who would gain this
end by defiance of law and destruction of property; even if they further
their particular cause by their violence-which is highly doubtful-they
do it at the expense of something still more precious, the preservation
of the law-abiding spirit. Other organizations will not be slow to
profit by the lesson of their success; and we shall have Heaven knows
how many causes seeking to attain their ends by destructiveness and
resistance. Similarly, the more serious and menacing rebellion of labor
against law must be firmly controlled; much as we may sympathize with
their grievances, we cannot countenance the attempt to remedy them
by violence. The Industrial Workers of the World, with action, [Footnote:
Cf, in a pamphlet issued by them: "The I.W.W. will get the results
sought with the least expenditure of time and energy. The tactics used
are determined solely by the power of the organization to make good
in their use". The question of 'right' and 'wrong' does not concern
us. In short, the I.W.W. advocates the use of militant 'direct action'
tactics to the full extent of our power to make them." (Quoted in
Atlantic Monthly, vol. 109, p. 703.)] have made themselves enemies
of society. The advocates of "sabotage," the "reds" in the socialist
camp, the preachers of practical anarchism, must be treated as among
the most dangerous of criminals. On the other hand, the spread of the
spirit of lawlessness among the lower classes should serve to warn
the upper classes that present social conditions will not much longer
be endured.[Footnote: Cf. Ettor (quoted in Outlook, vol. 101, p. 340):
"They tell us to get what we want by the ballot. They want us to play
the game according to the established rules. But the rules were made
by the capitalists. THEY have laid down the laws of the game. THEY
hold the pick of the cards. We never can win by political methods.
The right of suffrage is the greatest hoax of history. Direct action
is the only way."] There is a great deal of idealism among the advocates
of violence;[Footnote: Cf, for example, Giovannitti's poem, The Cage,
in the Atlantic Monthly, June, 1913.] there is a great deal of sympathy
on the part of the public with lawless strikers, with the I.W.W. gangs
that have recently invaded city churches, with all those under-dogs
who are now determining to have a share in the good things of life.
Unless the employing and governing classes meet their demands halfway,
gunpowder and dynamite pretty surely lie ahead. Will the spirit of
lawlessness spread? Ought we to slacken our process of lawmaking lest
we make the yoke too hard to bear? As a matter of fact, it is through
more laws, better laws, and a better mechanism for punishing infraction
of laws, that we can hope to check lawlessness. Lynching-as we noted
in chapter XXV-have been the product of inadequate legislation and
judicial procedure; as our laws against the worst crimes become
sharper, our police forces more efficient, and our court trials quicker
and less hampered by technicalities, they decrease in number. As
education on the liquor question spreads, violations of prohibition
laws become fewer. The kind of lawlessness that is on the increase
is that which exists as a protest against and a means of remedying
evils that the laws have not yet properly dealt with. Give us by law
an industrial code that will minimize the exploitation of the weak
by the strong, bringing a good measure of security and comfort to all,
and such outrages as those of the McNamara brothers will cease, or
at worst will be merely sporadic and generally condemned. Allow present
conditions to drift on without sharp legal guidance, and such outrages
will certainly become more and more numerous. The alternative that
confronts the modern world is plainly evolution by law or revolution
by violence. Individualism: J. S. Mill, On Liberty. H. Spencer,
Principles of Ethics, part iv, chaps, XXV-XXIX; Social Statics; and
many other writings. J. H. Levy, The Outcome of Individualism. Various
publications of the British Personal Rights Association. W.
Donisthorpe, Individualism. W. Fite, Individualism, lect. IV. Legal
control: Florence Kelley, Some Ethical Gains through Legislation. Jane
Addams, Newer Ideals of Peace. E. A. Ross, Social Control, chap. XXXI.
D. S. Ritchie, Principles of State Interference. J. W. Jenks,
Government Action for Social Welfare. A. V. Dicey, Law and Opinion.
J. Seth, Study of Ethical Principles, pp. 297-331. H. C. Potter, Relation
of the Individual to the Industrial Situation, chap. VI. W. J. Brown,
Underlying Principles of Modern Legislation. Journal of Philosophy,
Psychology, and Scientific Methods, vol. 10, p. 113. A. T. Hadley,
Freedom and Responsibility. J. W. Garner, Introduction to Political
Science, chaps, IX, X. Edmond Kelly, Evolution and Effort. Lawlessness:
Atlantic Monthly, vol. 109, p. 441. Outlook, vol. 98, p. 12; vol. 99,
p. 901; vol. 100, p. 359. J. G. Brooks, American Syndicalism.