CHAPTER VIII.

NATURE OF THE END OF THE STATE AND CONSEQUENT LIMIT OF STATE ACTION.

1. According to the course of thought which we have been pursuing,

the distinction between the individual on the one hand, and the

social or political whole on the other, is not relevant to the

question where the “end” of man in Society is to be sought. For the

conceptions of Society and the Individual are correlative conceptions

through and through; at whatever level, therefore, we take the one,

we are bound to construe the other as at the same level; so that,

to distinguish the one element from the other as superior from

inferior, or as means from end, becomes a contradiction in terms. If

we begin by drawing boundaries round the individual, the boundaries

which we draw reproduce themselves in society conceived as a total

of such individuals, and the question of means and end, as we saw

in Bentham’s case, [1] takes the form whether “each” is the means

to the welfare of “all,” or “all” to the welfare of “each”; the

distinction thus becoming purely verbal. While, if we set no limit

to individuality, except the limit of the nature {181} which makes

it contributory to the social universal, then we find that the

advancements of the universal and of its differences vary together,

and are indeed one and the same thing. It is idle to think of

dissociating them as means and end.

[1] Chapter III.

The only way in which the idea of means and end can be applied to

the social whole and its parts, is to take Society when at its lower

level, being dealt with under the aspect of mere plurality, as a

means to what it is at its higher level, when realised as a communion

of individualities at their best. But from this point of view we get

no distinction of means and end as between Individuals and Society.

What we get is Individuals and Society alike, as understood and

partly existing at one level (that of commonplace Individualism and

Collectivism), taken as a means to both Individuals and Society

at a higher level. As we have seen, the only true explanation of

self-government is to throw the reality of the self outside what

passes for its average nature, and in this sense the average nature

may be treated as a means to the truer or fuller self--as something,

that is to say, which is instrumental to the latter, and has no

rights against it.

2. For us, then, the ultimate end of Society and the State as of

the individual is the realisation of the best life. The difficulty

of defining the best life does not trouble us, because we rely

throughout on the fundamental logic of human nature _qua_ rational.

We think ourselves no more called upon to specify in advance what

will be the details of the life which satisfies an intelligent being

as such, than we are called upon to specify in advance {182} what

will be the details of the knowledge which satisfies an intelligent

being as such. Wherever a human being touches practice, as wherever

he touches theory, we find him driven on by his intolerance of

contradictions towards shaping his life as a whole. What we mean by

“good” and “truth” is practical and theoretical experience in so far

as the logic which underlies man’s whole nature permits him to repose

in it. And the best life is the life which has most of this general

character--the character which, so far as realised, satisfies the

fundamental logic of man’s capacities.

Now, it is plain that this best life can only be realised in

consciousness, that being the medium of all satisfaction and the

only true type of a whole in experience. And all consciousness, as

experienced by man, is on one side particular, attached to bodies,

and exclusive of consciousnesses attached to other bodies. In a

sense, it is true that no one consciousness can partake of or

actually enter into another. Thus, it is apt to be held, as we have

amply seen, that the essential danger of State interference lies in

the intrusion of something originated by “others” upon a distinct

particular consciousness, whose distinction and particularity--its

freedom--are thus impaired. It is all-important to our point of view

that this prejudice should be dispelled. Force or automatic custom

or authoritative tradition or “suggestion” are not hostile to one

individuality because they come from “others,” but because their

nature is contradictory to the nature of the highest self-assertion

of mind, because they are, so to speak, in a medium incompatible with

its medium. They {183} are just as hostile to this self-assertion,

just as alien, if they emanate, as they constantly do, from

conflicting elements in our complex private experience, as if they

come to us, as we say, “from without.” The question is of their

“nature” and tendency, not of their centre of origin. Individuals are

limited and isolated in many ways. But their true individuality does

not lie in their isolation, but in that distinctive act or service

by which they pass into unique contributions to the universal. True

individuality, as we have said, is not in the minimisation which

forbids further subdivision, but in the maximisation which includes

the greatest possible being in an inviolable unity. It is not,

therefore, the intrusion upon isolation, as such, that interferes

with individuality; it is the intrusion, upon a growing unity of

consciousness, of a medium hostile to its growth.

But we have seen that force, automatism, and suggestion, are in

some ways necessary to the support and maintenance of the human

consciousness, owing to its animal limitations. They are, indeed, as

is well known, the condition of its progress. Therefore, in promoting

the best life, these aids must be employed by society as exercising

absolute power--viz., by the State. And the problem presented

by their employment is _not_ a question of the “interference of

the State with the Individual”--an antithesis which is strictly

meaningless; but it is a question how far and in what way the use of

force and the like by the State is a hindrance to the end for which

the State itself exists. In other words, it is to be ascertained

how far the fullest self-assertion of the social {184} universal

in its differences--the best life--can be promoted or is likely to

be endangered by means which are of a different order, and so in

some circumstances opposed to it. The point is not that _I_ and

some thousands more break in by force upon _you_ in particular and

violate _your_ isolation; but that such breaking in by force, whoever

does it and whoever suffers by it, and even if through passion or

obsession _you_ do it to _your_self and _I_ to _my_self, is hostile

_prima facie_ to the living logic of the will, which alone can create

a unity and realise a best. How then, and under what reservations,

in the complicated conflict of the fuller and narrower self, can

this dangerous drug of violence be administered, so to speak, as a

counter-poison to tendencies which would otherwise give no chance

to the logical will? With this difficulty in our minds, we will

endeavour to determine the general principle on which force and

menace should be used by the State, and a routine be mechanically

maintained by it.

3. We have hitherto spoken of the State and Society as almost

convertible terms. [1] And in fact it is part of our argument that

the influences of Society differ only in degree from the powers of

the State, and that the explanation of both is ultimately the same.

But on the other hand, it is also part of our argument that the

State as such is a necessary factor in civilised life; and that no

true ideal lies in the direction of minimising its individuality or

restricting its absolute power. By the State, then, we mean Society

as a unit, recognised as rightly exercising control over its members

{185} through absolute physical power. The limits of the unit are, of

course, determined by what looks like historical accident; but there

is logic underneath the apparent accident, and the most tremendous

political questions turn upon the delimitation of political units.

A principle, so to speak, of political parsimony--_entia non sunt

multiplicanda praeter necessitatem_, “two organisations will not

survive when one can do the work”--is always tending to expand the

political unit. The limits of the common experience necessary for

effective self-government are always operating to control this

expansion. We might therefore suggest, as a principle determining

the area of states, “the widest territorial area compatible with the

unity of experience which is demanded by effective self-government.”

But the State _de facto_ (which is also _de jure_) is the Society

which is recognised as exercising compulsory power over its members,

and as presenting itself _qua_ a single independent corporation among

other independent corporations. Without such power, or where, if

anywhere, it does not exist, there can be no ultimate and effective

adjustment of the claims of individuals, and of the various social

groups in which individuals are involved. It is the need for this

ultimate effective adjustment which constitutes the need that every

individual in civilised life should belong to one state, and to one

only. Otherwise his “real” will might have no working representative

at all, but all be sheer conflict. That Society, then, is a State,

which is habitually recognised as a unit lawfully exercising force.

We saw that the characteristics of Society pass gradually into those

of the State. It would not be true that {196} Society is a State

only as actually exercising force; but it would perhaps be true to

say that State action as such, though far from being limited to

the downright exercise of force, yet consists of all that side of

social action which depends on the character of ultimate arbiter

and regulator, maintainer of mechanical routine, and source of

authoritative suggestion, a character which is one with the right to

exercise force in the last resort.

[1] See, however, p. 150 ff.

The end of the State, then, is the end of Society and of the

Individual--the best life, as determined by the fundamental logic

of the will. The means at its disposal, _qua_ State, always partake

of the nature of force, though this does not exclude their having

other aspects as well. Taxation may have the most reasonable and

even the most popular purpose, yet the generality and justice of

its incidence, and the certainty of its productiveness, can only be

secured by compulsion. No State could undertake its work on the basis

of voluntary contributions. A universal end, we might say, is indeed

not a mere general rule; but you cannot carry out a universal end in

a plurality of units--and a set of human individuals is always in one

aspect a plurality of units--without enforcing general rules.

4. Here, then, we have our problem more closely determined than in

the previous chapters. There we saw, in general, that self-government

can have no meaning unless we can “really” will something which we

do not always “actually” will. And we were led to look for a clue to

our real or implied will in the social spirit as incorporated in laws

and institutions, that is to say in Society as a {187} working whole

reflected in the full system of the consciousnesses which composed it.

We supposed ourselves prepared, then, it would seem, to do and

suffer anything which would promote the best life of the whole--that

maximisation of our being which, from the nature of our real will, we

saw to be imperative upon us--a demand implied in every volition and

from which we could never escape.

But now we are face to face with the question what we _are_ called

upon to do or to suffer, as members of a State, in promotion of

the best life. We have here to renew, from another standpoint, the

discussions of chapter iii. The governing fact of the situation is

that the means of action at our disposal as members of a State are

not, on their distinctive side, _in pari materia_ with the end. It

is true that the State, as an intelligent system, can appeal by

reasoning and persuasion to the logical will as such. It constantly

does so in various forms, and a State which did nothing of the kind

either directly or indirectly would not possess the recognition

which is necessary to its very existence. So far its work is _in

pari materia_ with the end, being a direct element in the expansion

of mind and character in their own spiritual medium of thought and

will. But this side of its work is not distinctive of the State,

and, therefore, is not that for which more particularly it exists.

Its distinctive attribute is to be ultimate arbiter and regulator

of claims, the guarantor of life as _at least_ a workable system

in the bodily world. It is in its ultimateness _de facto_ that the

differentia lies which separates it from the innumerable {188} other

groupings and associations which go to make up our complex life. This

is shown in the fact that each of us, as we have said, must belong

to a State, and can belong to one only. For an ultimate authority

must be single. Now, authority which is to be ultimate in a sphere

including the world of bodily action, must be an authority which

can use force. And it is for this reason that, as we said, force is

involved in the distinctive attributes of the State.

But force is not _in pari materia_ with the expansion of mind and

character in their spiritual medium. And, thus, there at once appears

an inadequacy of means to end as between the distinctive _modus

operandi_ of the State and the end in virtue of which it claims to

represent the “real” will.

What is the bearing of this inadequacy? What is the most that the

State, in its distinctive capacity, can do towards promoting a form

of life which it recognises as desirable? Its direct power is limited

to securing the performance of external [1] actions. This does not

mean merely the performance of outward bodily movements, such as

might be brought to pass by actual physical force. It is remarkable

that actual physical force plays a very small part in the work of any

decently ordered State. When we say that the State can do no more

than secure the performance of external actions, we do not exclude

from the action the intention to act in a certain way. With out such

an intention there is no action in the sense of human action at all,

but merely a muscular movement. It is necessary for the State to

attach {189} importance to intention, which is involved in the idea

of human action, and is the only medium through which the muscular

movements of human beings can be determined with any degree of

certainty. The State, then, through its authority, backed ultimately

by physical force, can produce, with a fair degree of certainty,

the intention to act in a certain way, and therefore the actions

themselves. Why do we call intentional actions, so produced, external

actions only?

[1] Green, _Principles of Political Obligation_, pp. 34, 35.

It is because the State is unable to determine that the action

shall be done from the ground or motive which alone would give it

immediate value or durable certainty as an element in the best life.

On the contrary, in so far as the doing of the action is due to the

distinctive mode of operation which belongs to the State, due, that

is to say, to the hope of reward or the fear of punishment, its value

as an element in the best life is _ipso facto_ destroyed, except in

so far as its ulterior effects are concerned. An action performed in

this sense under compulsion is not a true part of the will. [1] It is

an intention adopted from submissiveness or selfishness, and lacks

not only the moral value, but what is partly the same thing, the

reliable constancy of principle, displayed in an action which arises

out of the permanent purposes of a life.

[1] The theory of punishment will modify this proposition in some

degree.

The State, then, as such, can only secure the performance of external

actions. That is to say, it can only enforce as much intention [1]

as is {190} necessary to ensure, on the whole, compliance with

requirements stated in terms of movements affecting the outer world.

So far from promoting the performance of actions which enter into the

best life, its operations, where effective, must directly narrow the

area of such actions by stimulating lower motives as regards some

portion of it.

[1] On this question _vide_ Green’s very thorough discussion. It is

true, of course, that the law takes account of intention, and does

not, _e.g._, treat accidental homicide as murder, the difference

between them being a difference of intention. But it is obvious that,

in attempting to influence human action at all, so much account

as this must be taken of intention; for intention is necessary to

constitute a human action. An unintentional movement of the muscles

cannot be guarded against by laws and penalties; it is only through

the intention that deterrent or other motives can get at the action,

and a constant law-abiding disposition is the best security for

law-abiding action. On the importance of intention and disposition as

affording a certainty of action, Bentham, who wholly rejects judgment

according to moral motive, is as emphatic as possible.

5. The State, then, in its distinctive capacity, has no agency at its

command for influencing conduct, but such as may be used to produce

an external course of behaviour by the injunction or prohibition of

external acts, in enforcing which acts the State will take note of

intentions, so far as it can infer them, because it is only through

them that its influence can be exerted.

The relation of such a means to the imperative end, on which we have

seen that political obligation depends, must be in a certain sense

negative. The means is one which cannot directly promote the end,

and which even tends to narrow its sphere. What it can effect is to

remove obstacles, to destroy conditions hostile to the realisation

of the end. This brings us back to a principle laid down by Kant,

[1] and in its bare statement strongly resembling Mill’s contention.

When force is opposed to {191} freedom, a force that repels that

force is right. Here, of course, all depends upon what we mean by

freedom, and in what sense we think that force can hinder hindrances

to it. If freedom meant for us the empty hexagon [2] round each

individual, the principle would take us back to Mill’s Liberty. If,

on the other hand, we failed to grasp the discrepancy between force

of any kind and the positive nature of the common good which we take

to be freedom, the principle would lead us straight to a machine-made

Utopia. For its negative character cannot restrain it from some

degree of positive action. It is only through positive operation

that a negation or opposition can find reality in the world. And the

limits of its positive action must depend on the precise bearings of

the negation which it puts in force.

[1] W., ix. 34. Fichte remarked on the pregnancy of this principle.

[2] See p. 72, above.

Now, for us, after the explanations which have been given, the

negative nature of our principle is to be seriously pressed, although

its action has to take positive form. The State is in its right when

it forcibly hinders hindrance to the best life or common good. In

hindering such hindrances it will indeed do positive acts. It may

try to hinder illiteracy and intemperance by compelling education

and by municipalising the liquor traffic. Why not, it will be asked,

hinder also unemployment by universal employment, over-crowding by

universal house-building, and immorality by punishing immoral and

rewarding moral actions? Here comes the value of remembering that,

according to our principle, State action is negative in its immediate

bearing, though positive both in its {192} actual doings and its

ultimate purpose. On every problem the question must recur, “Is the

proposed measure _bona fide_ confined to hindering a hindrance, or

is it attempting direct promotion of the common good by force?” For

it is to be borne in mind throughout that whatever acts are enforced

are, so far as the force operates, withdrawn from the higher life.

The promotion of morality by force, for instance, is an absolute

self-contradiction. [1] No general principle will tell us how in

particular to solve this subtle question, apart from common sense

and special experience. But there is perhaps more to be learned from

this principle, if approached with _bona fides_ [2] than from most

generalities of philosophy on social or ethical topics. It is well,

I think, constantly to apply the idea of removing hindrances, in

criticism of our efforts to promote the best life by means involving

compulsion. We ought, as a rule, when we propose action involving

compulsion, to be able to show a definite tendency to growth, or

a definite reserve of capacity, which is frustrated by a known

impediment, the removal of which is a small matter compared to the

capacities to be set free. [3] For it should be remarked that {193}

every act done by the public power has one aspect of encroachment,

however slight, on the sphere of character and intelligence, if only

by using funds raised by taxation, or by introducing an automatic

arrangement into life. It can, therefore, only be justified if it

liberates resources of character and intelligence greater beyond all

question than the encroachment which it involves. This relation is

altogether perversely presented, as we saw above, if it is treated as

an encroachment of society upon individuals. All this is beside the

mark. The serious point is, that it is an interference, _so far as

compulsion operates in it_, of one type of action with another and

higher type of action; of automatism, so to speak, with intelligent

volition. The higher type of action, the embodiment of the common

good in logical growth, is so far from being merely individual as

opposed to social, that it is the whole end and purpose in the name

of which allegiance to society can be demanded from any individual.

As in the private so in the general life, every encroachment of

automatism must be justified by opening new possibilities to

self-conscious development, if it is not to mean degeneration and

senility.

[1] “You will admit,” it was once said, “that compulsory religion is

better than no religion.” “I fail to see the distinction” was the

reply.

[2] Among true students _bona fides_ is presupposed. The range opened

to sophistry by a principle of this kind, which commends positive

action with a negative bearing for a positive end, is, of course,

immeasurable. Practically, I believe that _bona fides_ is about the

first and last necessity for the application of political ideas.

[3] Perhaps I may adduce an instance of real interest. It has been

argued that ship-masters should be induced by a premium to ship

boys as apprentices to the trade of seamanship, and that training

for this trade should be fostered by local authorities like any

other form of technical education. The argument which really told

in the discussion, consisted of statistics which seemed to prove a

wide-spread eagerness on the part of boys and their parents that they

should enter a maritime life, and the existence of a hindrance simply

in the absence of adequate training for a few years during boyhood.

It is the same principle in other words which Green lays down when

he says in effect [1] that only such acts (or omissions) should be

enforced by the public power as it is better should take place {194}

from any motive whatever than not take place at all. When, that is,

we enforce an act (or omission) by law, we should be prepared to

say, “granting that this act, which might conceivably have come to

be done from a sense of duty, now may come to be done for the most

part from a fear of punishment, or from a mechanical tendency to

submit to external rules (attended by the practical inconveniences of

insensibility, half-heartedness, and evasion which attach to acts so

enforced), still so much depends, for the higher life of the people,

upon the external conditions at stake, that we think it worth while

to enforce the act (or omission) though our eyes are fully open to

the risk of extended automatism.”

[1] _Principles of Political Obligation_, p. 38.

Here we may have to meet our own arguments against Mill. “You said

it was a contradiction,” we shall be told, “to admit coercion as a

means to liberty. But here you are advocating coercion as a means to

something as incompatible with it, in so far as it is operative, as

our ‘liberty,’ viz., a certain state of mind and will. If the area of

coercion is necessarily subtracted from the area of liberty, as you

argued above, is not the area of coercion necessarily subtracted from

that to be occupied by the desired growth of will and character?”

The answer depends, as we indicated in ch. iii., on the difference

between bare liberty and a determinate growth. If your liberty is

wholly indeterminate, then every restraint is a reduction of it. You

cannot increase a quantity which is all of one kind by taking away

a part of it. And, in fact, the idea that there was or could have

{195} been a previous general liberty, of which a part was given up

in exchange for more, is a mere illusion. Liberty has grown up within

the positive determinations of life, as they have expanded and come

to fit mankind better.

But if the quantity to be increased is a determinate growth, of a

type whose general character is known, the problem is transformed.

It is the commonest of experiences that hindrances can be removed

and favourable conditions maintained, if this has to be done, not

with a view to every conceivable and inconceivable development,

but for a growth the general line of which is known. In this case,

as the whole expands, the restraints and the liberty, the room for

action, may even increase together. [1] This is not only true in

universal theory, but much more important than is always remembered

in special theory or practice. The possibility of promoting freedom

or well-being by compulsion depends very greatly indeed on the unity

of habit and experience which binds together a single community.

The more the life has in common, the more definite and automatic

arrangements you may safely make in promotion of it. The rules of my

household, which inconvenience its members no more than their clothes

do, would produce a rebellion if they were enforced by law even

throughout our village.

[1] See the author’s essay, “Liberty and Legislation,” in

_Civilisation of Christendom_ (Sonnenschein).

Thus, then, we may maintain our principle of the limits of

distinctive State action. The peculiarity of it is that it allows

of positive acts and interferences, motived by an ultimate positive

{196} purpose, but with a bearing on that purpose which is primarily

negative or indirect. However positive, as actual facts, are the

conditions which it may become advisable to maintain, they may

always, on the side which is distinctively due to State compulsion,

be regarded as the hindrance of hindrances. And the _bona-fide_

application of this principle will really be, when aided by special

experience, in some degree a valuable clue to what ought to be done.

It is only putting in other words the rule of action followed by all

practical men in matters of which they have genuine experience. We

may think, for instance, of the problem involved in State maintenance

of universities. It is easy to vote money, to build buildings, and

to pass statutes. But none of these things will secure the objects

of a university. Money and buildings and statutes may throw open an

arena, so to speak, for the work of willing minds in learning and

education. But the work itself is in a different medium from anything

which can be produced by compulsion, and is so far less vital as it

is conditioned by the operation of force upon minds which demand no

work of the kind.

But here we meet a difficulty of principle. Do we say that no

external conditions are more than hindrances of hindrances to the

best life? Do we deny that the best life can be positively promoted

by external conditions; or if we admit this, do we still deny that it

can be positively promoted by the work of the State? The answer has

already been implied, but may be explicitly restated. We refused [1]

to separate mind from its embodiment in {197} material things, and

so to be drawn into a purely inward theory of morality, It would be

exaggeration to call such external conditions as, _e.g_., first-rate

educational apparatus, [2] mere negative conditions of the best life.

But then, we are now asked, cannot the State supply such external

conditions by expenditure compulsorily provided for, and if so, is

not our principle destroyed, viz., the limitation of State action to

the hindrance of hindrances?

[1] Page 31.

[2] See Thring on the importance of this, in Parkin’s life of him.

Note, however, also the modification of his view by the adventure of

Uppingham on the Sea.

The difficulty springs from the fact, that the State, as using

compulsion, is only one side of Society, and its action is only

one side of social action. If first-rate educational apparatus is

called into existence by a State endowment, the first-rateness of the

apparatus is not due to the compulsion applied to taxpayers, which

rather, so far, negatives the action of intelligent will as such. But

it must be due, in one way or another, to the fact that first-rate

ability in the way of devising apparatus was somewhere pressing for

an outlet, which, by a stroke of the pickaxe, so to speak, the public

power was able to provide for it. We must not confuse the element of

compulsion, which is the side of social action distinctly belonging

to State interference, with the whole of the material results which

liberated intelligence produces. When we say, then, that the State as

such can do nothing for the best life but hinder hindrances to it,

the principle applies in the strictest sense only to the compulsory

or automatic side of State action, which {198} must, so to speak, be

reckoned against it [1] in comparing its products with those which

are spontaneous social growths throughout.

[1] Subject to what will be said on the theory of rights and

punishment.

But it is further true that material conditions which come close to

life, such as houses, wages, educational apparatus, do not wholly

escape our principle. They occupy a very interesting middle region

between mere hindrances of hindrances and the actual stimulation

of mind and will. On the one side they are charged with mind and

character, and so far are actual elements in the best life. On the

other side they depend on external actions, and therefore seem

accessible to State compulsion, which extends to all external

doings and omissions. But what we have to observe is, and it is in

practice most important, that, _as charged with mind and will_,

these material facts may not be accessible to State compulsion,

while, _as accessible to State compulsion_ pure and simple, they

may forfeit their character of being charged with mind and will.

This shows itself in two ways. First, just because they are facts

of a kind which come so close to life (in other words depend so

greatly upon being charged with mind and will), State compulsion

cannot with certainty secure even their apparent existence. They

fail bodily, like human beings, if there is no spirit to keep them

alive. The relation of wages to the standard of life illustrates this

point. Secondly, supposing that for a time, by herculean efforts of

compulsion, which must call active intelligence to its aid, such

facts are made to present a satisfactory appearance of existence,

none the less, {199} so far as they are characterised by compulsion,

they may lose their character as elements in the best life. That

is to say, they may fail to benefit those whom they are meant to

benefit. The fact may fail to be absorbed in the life.

The principle of the hindrance of hindrances is most valuable and

luminous when rightly grasped, just in these middle cases. A pretty

and healthy house, which its inhabitant is fond of, is an element in

the best life. Who could doubt it who knows what home-life is? But

in order that putting a family out of a bad house into a good one

should give rise to such an element of the best life, it is strictly

and precisely necessary that the case or policy should come under our

principle. That is to say, unless there was a better life struggling

to utter itself, and the deadlift of interference just removed an

obstacle which bound it down, the good house will not be an element

in a better life, and the encroachment on the ground of volition will

have been made with out compensation--a fact which may show itself in

many fatal ways. If, on the other hand, the struggling tendency to a

better life has power [1] to effect the change without the deadlift

from outside, then the result is certain and wholly to the good.

[1] Many forms of _social_ co-operation, it must be remembered, need

no deadlift from the _State_ as such. We are not setting self-help

against co-operation, but will against automatism.

Thus we may say that every law and institution, every external fact

maintained by the public power, must be judged by the degree in which

it sets at liberty a growth of mind and spirit. It is a {200} problem

partly of removing obstacles to growth, and partly of the division of

labour between consciousness and automatism.

It ought to occur to the reader that the ground here assigned for

the limitation of State action--that is, of social action through

the public power--is not _prima facie_ in harmony with the account

of political obligation, according to which laws and institutions

represented a real self or general will, recognised by individuals

as implied in the common good which was imperative upon them. We

spoke, for example, of being forced to be free, and of the system of

law and order as representing the higher self. And yet we are now

saying that, in as far as force is operative through compulsion and

authoritative suggestion, it is a means which can only reach its end

through a negation.

But this _prima-facie_ contradiction is really a proof of the

vitality of our principle. It follows from the fact that we

accept self-government in the full strength of both its factors,

and can deal with it on this basis. The social system under

which we live, taking it as one which does not demand immediate

revolution, represents the general will and higher self as a whole

to the community as a whole, and can only stand by virtue of that

representation being recognised. Our loyalty to it makes us men and

citizens, and is the main spiritualising force of our lives. But

something in all of us, and much in some of us, is recalcitrant

through rebellion, indolence, incompetence, or ignorance. And it

is only on these elements that the public power operates as power,

through compulsion {201} or authoritative suggestion. Thus, the

general will when it meets us as force, and authority resting on

force, and not as a social obligation which we spontaneously rise

to accept, comes to us _ex hypothesi_ as something which claims

to be ourself, but which, for the moment, we more or less fail

to recognise. And, according to the adjustment between it and

our complex and largely unintelligent self, it may abandon us to

automatism, or stir in us rebellion or recognition, and so may

hinder the fuller life in us or remove hindrances to it. It seems

worth while to distinguish two main cases of the relation between

the ordinary self and the general will. One of these cases covers

the whole of our every-day law-abiding life, in its grades of active

loyalty, acceptance of suggestion, and automatic acquiescence; and

consists of the relation of our ordinary self to the general system

of rights maintained by the State as ultimate regulator and arbiter.

The other is confined to more exceptional situations, and has to

do with collision between the particular and the general will, as

treated in the theory of punishment. The subject of reward may be

mentioned at the same time, if only to show why it is almost an empty

heading in political theory. We will end this chapter, therefore,

with a general account of the system of rights and of reward and

punishment.

6. The idea of individual rights comes down to us from the doctrine

of natural right, and has generally been discussed with reference to

it. We need not now go back upon the illusions connected with the

notion of natural right. It is enough if we bear in mind that we

inherit from it the important {202} idea of a positive law which is

what it ought to be. A right, [1] then, has both a legal and a moral

reference. It is a claim which can be enforced at law, which no moral

imperative can be; but it is also recognised to be a claim which

ought to be capable of enforcement at law, and thus it has a moral

aspect. The case in which positive enactment and the moral “ought”

appear to diverge will be considered below. But a typical “right”

unites the two sides. It both is, and ought to be, capable of being

enforced at law.

[1] This is a right in the fullest sense. The nature of a merely

legal or merely moral right will be illustrated below.

Its peculiar position follows from what we have seen to be the end

of the State, and the means at its disposal. The end of the State

is a moral purpose, imperative on its members. But its distinctive

action is restricted to removing hindrances to the end, that is,

to lending its force to overcome--both in mind and in externals

essential to mind--obstacles which otherwise would obstruct the

realisation of the end. The whole of the conditions thus enforced

is the whole of “rights” attaching to the selves, who, standing in

definite relations, constitute the community. For it is in these

selves that the end of the State is real, and it is by maintaining

and regulating their claims to the removal of obstructions that the

State is able to promote the end for which it exists. Rights then are

claims recognised by the State, _i.e._ by Society acting as ultimate

authority, to the maintenance of conditions favourable to the best

life. And if we ask in general for a definition and limitation of

State action as such, the answer is, in a simple {203} phrase, that

State action is coincident with the maintenance of rights.

The system of rights which the State maintains may be regarded from

different points of view.

First, _(a)_ from the point of view of the whole community, that is,

as the general result in the promotion of good life obtained by the

working of a free Society, as a statesman or outside critic might

regard it. Thus looked at, the system of rights may be described

as “the organic whole of the outward conditions necessary to the

rational life,” or “that which is really necessary to the maintenance

of material conditions essential to the existence and perfection of

human personality.” [1] This point of view is essential as a full

contradiction of that uncritical conception by which rights are

regarded as something with which the individual is invested in his

aspect of isolation, and independently of his relation to the end.

It forces us away from this false particularisation, and compels us

to consider the whole State-maintained order in its connectedness as

a single expression of a common good or will, in so far as such a

good can find utterance in a system of external acts and habits. And

it enables us to weigh the value which belongs to the maintenance of

any tolerable social order, simply because it is an order, and so

far enables life to be lived, and a determinate, if limited, common

good to be realised. From other points of view we are apt to neglect

this characteristic, and to forget {204} how great is the effect,

for the possibilities of life throughout, of the mere fact that a

social order exists. Hegel observes that a man thinks it a matter of

course that he goes back to his house after night-fall in security.

He does not reflect to what he owes it. Yet this very naturalness, so

to speak, of living in a social order is perhaps the most important

foundation which the State can furnish to the better life. “_Si

monumentum quaeris, circumspice_” If we ask how it affects our will,

the answer is that it forms our world. Speaking broadly, the members

of a civilised community have seen nothing but order in their lives,

and could not accommodate their action to anything else.

[1] Krause and Henrici, cit. by Green, _Principles of Political

Obligation_, p. 35. Cp. “The system of right is the realm of realised

freedom, the world of the mind produced by the mind as a second

nature” (Hegel, _Philosophie d. Rechts_, sect. 4).

It should be mentioned as a danger of this point of view that,

fascinated by the spectacle of the social fabric as a whole, we may

fail to distinguish what in it is the mere maintenance of rights,

and what is the growth which such maintenance can promote but cannot

constitute. Thus we may lose all idea of the true limits of State

action.

_(b)_ We may regard this complex of rights from the standpoint of

the selves or persons who compose the community. It is in these

selves, as we have seen, that the social good is actual, and it is

to their differentiated functions, [1] which constitute their life

and the end of the community, that the sub-groupings of rights, or

conditions of good life, have to be adjusted each to each like suits

of clothes. The rights are, from this point of view, primarily the

external incidents, so far as maintained by law--the authoritative

vesture as it were--of a {205} person’s position in the world of his

community. And we shall do well to regard the nature of rights, as

attaching to selves or persons, from this point of view of a place

or position in the order determined by law. It has been argued, I

do not know with what justice, that, in considering the relations

of particles in space, the proper course would be to regard their

positions or distances from each other as the primary fact, and to

treat attributions of attractive and repulsive forces as modes of

expressing the maintenance of the necessary positions rather than

as descriptive of real causes which bring it about. At least, it

appears to me, such a conception may well be applied to the relative

ideas of right and obligation. What comes first, we may say, is the

position, the place or places, function or functions, determined by

the nature of the best life as displayed in a certain community, and

the capacity of the individual self for a unique contribution to

that best life. Such places and functions are imperative; they are

the fuller self in the particular person, and make up the particular

person as he passes into the fuller self. His hold on this is his

true will, in other words, his apprehension of the general will. Such

a way of speaking may seem unreally simplified when we look at the

myriad relations of modern life and the sort of abstraction by which

the individual is apt to become a rolling stone with no assignable

place--indeed “gathering no moss”--and to pass through his positions

and relations as if they were stations on a railway journey. But in

truth it is only simplified and not falsified. If we look with care

we shall see that it, or nothing, is true of all lives.

[1] I do not say merely social functions, _i.e._ functions dealing

directly with “others” as such.

{206} The Position, then, is the real fact--the vocation, place or

function, which is simply one reading of the person’s actual self and

relations in the world in which he lives. Having thoroughly grasped

this primary fact, we can readily deal with the points of view which

present the position or its incidents in the partial aspects of

rights or obligations.

(i.) A right, we said, is a _claim_ recognised by society and

enforced by the State. My place or position, then, and its incidents,

so far as sanctioned by the State, constitute my rights, when thought

of as something which I claim, or regard as powers instrumental to

my purposes. A right thus regarded is not anything primary. It is

a way of looking at certain conditions, which, by reason of their

relation to the end of the whole as manifested in me, are imperative

alike for me and for others. It is, further, the particular way of

looking at these conditions which is in question when I claim them or

am presumed to claim them, as powers secured to me with a view to an

end which I accept as mine. I _have_ the rights no less in virtue of

my presumed capacity for the end, if I am in fact indifferent to the

end. But, in this case, though attributed _ab extra_ as rights, they

tend to pass into obligations.

(ii.) If rights are an imperative “position” or function, when looked

at as a group of State-secured powers claimed by a person for a

certain end, obligations are the opposite aspect of such a position

or group of powers. That is to say, the conditions of a “position”

are regarded as obligations in as far as they are thought of as {207}

requiring enforcement, and therefore, primarily, from the point of

view of persons not directly identified with the “position” or end

to which they are instrumental. Rights are claimed, obligations

are owed. And _prima-facie_ rights are claimed _by_ a person, and

obligations are owed _to_ a person, being his rights as regarded by

those against whom they are enforceable.

Thus, the distinction of self and others, which we refused to take

as the basis of society, makes itself prominent in the region of

compulsion. The reason is that compulsion is confined to hindering

or producing external acts, and is excluded from producing an act in

its relation to a moral end, that is, the exercise of a right in its

true sense; though it can enforce an act which in fact favours the

possibility of acting towards a moral end that is, an obligation.

This is the same thing as saying that normally a right is what _I_

claim, and the obligation relative to it is what _you_ owe; as an

obligation is that which can be enforced, and that is an act or

omission apart from the willing of an end; and a right involves what

cannot be enforced, viz., the relation of an act to an end in a

person’s will. But even here the distinction of self and others is

hardly ultimate. The obligation on me to maintain my parents becomes

almost a right [1] if I claim the task as {208} a privilege. And

many rights of my position may actually be erected into, or more

commonly may give rise to, obligations incumbent on me for the sake

of my position or function. If the exercise of the franchise were

made compulsory that would be a right treated also as an obligation;

but it might be urged that _qua_ obligation it was held due to the

position of others, and only _qua_ right to my own “position.” But if

the law interferes with my poisoning myself [2] either by drains or

with alcohol, that, I presume, is the enforcement of an obligation

arising out of my own position and function as a man and a citizen,

which makes reasonable care for my life imperative upon me.

[1] I do not know that I can compel my parents to be maintained by

me, and therefore it is not my legal right to maintain them; but at

least the obligation, if I claim it, ceases to depend on force. An

East-End Londoner will say, “He had a right to maintain his father,”

meaning that he was bound to do so; and Jeannie Deans says, “I have

no right to have stories told about my family without my consent,”

representing her own claim as an obligation on herself as well as

on others. She represents the thought, “I have a right that you

should not tell stories, etc.,” in a form which puts it as a case of

the thought, “You have no right to tell stories,” disregarding the

distinction between herself and others as accidental.

[2] The law used to interfere with bad sanitation only as a

“nuisance,” _i.e._ as an annoyance to “others.” It now interferes

with any state of things dangerous to life as such, which probably

means that a change of theory has unconsciously set in. Legislation

for dangerous trades almost proves the point, though here it is

possible to urge that the employer is put under obligation for the

sake of his workers, and not the workers for their own sake. But the

distinction is hardly real.

_(c)_ It is commonly said that every right implies a duty. This has

two meanings, which should be distinguished.

In the one case, (i.) for “duty” should be read “obligation,” _i.e._

a demand enforceable by law. This simply means that every “position”

may be regarded as involving either powers secured or conditions

enforced, which are one and the same thing differently looked at.

Roughly speaking, they are the same thing as differently looked at

by one person, and by other persons. My right {209} to walk along

the high road involves an obligation upon all other persons not to

obstruct me, and in the last resort the State will send horse, foot

and artillery rather than let me be causelessly obstructed in walking

along the high road.

It is also true that every position which can be the source of

obligations enforceable in favour of my rights is likewise a link

with obligations enforceable on me in favour of the rights of others.

By claiming a right in virtue of my position I recognise and testify

to the general system of law according to which I am reciprocally

under obligation to respect the rights, or rather the function

and position, of others. My rights then imply obligations both in

others, and perhaps in myself, correlative to these rights, and

in me correlative to the rights of others. But it cannot strictly

be said that the obligations are the source of the rights, or the

rights of the obligations. Both are the varied external conditions of

“positions” as regarded from different points of view.

But (ii.) there is a different sense in which every right implies a

duty. And this, the true meaning of the phrase, is involved in what

we have said of the nature of a “position.” All rights, as claims

which both are and ought to be enforceable by law, derive their

imperative authority from their relation to an end which enters into

the better life. All rights, then, are powers instrumental to making

the best of human capacities, and can only be recognised or exercised

upon this ground.

In this sense, the duty is the purpose with a view to which the

right is secured, and not merely {210} a corresponding obligation

equally derived from a common ground; and the right and duty are not

distinguished as something claimed by self and something owed to

others, but the duty as an imperative purpose, and the right as a

power secured because instrumental to it.

_(d)_ We have treated rights throughout as claims, the enforcement

of which by the State is merely the climax of their recognition by

society. Why do we thus demand recognition for rights? If we deny

that there can be unrecognised rights, do we not surrender human

freedom to despotism or to popular caprice?

(i.) In dealing with the general question why recognition is

demanded as an essential of rights, we must remember what we took

to be the nature of society and the source of obligation. We

conceived a society to be a structure of intelligences so related

as to co-operate with and to imply one another. We took the source

of obligation to lie in the fact that the logic of the whole is

operative in every part, and consequently that every part has a

reality which goes beyond its average self, and identifies it with

the whole, making demands upon it in doing so.

Now, we are said to “recognise” anything when it comes to us with a

consciousness of familiarity, as something in which we feel at home.

And this is our general attitude to the demands which the logic of

the whole, implied in our every act, is continuously making upon

us. It is involved in the interdependence of minds, which has been

explained to constitute _the mind_ of which the visible community

is the body. A teacher’s {211} behaviour towards his pupils, for

example, implies a certain special kind of interdependence between

their minds. What he can do for them is conditioned by what they

expect of him and are ready to do for him, and _vice versa_. The

relation of each to the other is a special form of “recognition.”

That is to say, the mind of each has a definite and positive attitude

towards that of the other, which is based on, or rather, so far as it

goes, simply _is_, the relation of their “positions” to each other.

Thus, social positions or vocations actually have their being in the

medium of recognition. They _are_ the attitudes of minds towards one

another, through which their several distinct characteristics are

instrumental to a common good.

Thus, then, a right, being a power secured in order to fill a

position, is simply a part of the fact that such a position is

recognised as instrumental to the common good. It is impossible to

argue that the position may exist, and not be recognised. For we

are speaking of a relation of minds, and, in so far as minds are

united into a single system by their attitudes towards each other,

their “positions” and the recognition of them are one and the same

thing. Their attitude, receptive, co-operative, tolerant, and the

like, is so far a recognition, though not necessarily a reflective

recognition. Probably this is what is intended by those who speak of

imitation or other analogous principles as the ultimate social fact.

They do not mean the repetition of another person’s conduct, though

that may enter in part into the relation of interdependence. They

mean the {212} conscious adoption [1] of an attitude towards others,

embodying the relations between the “positions” which social logic

assigns to each.

[1] To call this imitation is something like calling fine art

imitation. Really, in both cases, we find a re-arrangement and

modification of material, incident to a new expression. The process,

if we must name it, is “relative suggestion” rather than imitation.

(ii.) But then the question of page 210 presses upon us “If we deny

that there can be unrecognised rights, do we not surrender human

freedom to despotism or to popular caprice?”

The sting of this suggestion is taken out when we thoroughly grasp

the idea that recognition is a matter of logic, working on and

through experience, and not of choice or fancy. If my mind has _no_

attitude to yours, there is no interdependence and I cannot be a

party to securing you rights. You are not, for me, a sharer in a

capacity for a common good, which each of us inevitably respects.

A dog or a tree may be an instrument to the good life, and it may

therefore be right to treat it in a certain way, but it cannot be

a subject of rights. If my mind _has_ an attitude to yours, then

there is certainly a recognition between us, and the nature of

that recognition and what it involves are matters for reasoning

and for the appeal to experience. It is idle for me, for instance,

to communicate with you by language or to buy and sell with you,

perhaps even idle to go to war with you, [1] and still to say that

I recognise no capacity in you for a common good. My behaviour is

then inconsistent with itself, and the question takes the form what

rights are involved {213} in the recognition of you which experience

demonstrates. No person and no society is consistent with itself, and

the proof and amendment of their inconsistency is always possible.

And, one inconsistency being amended, the path is opened to progress

by the emergence of another. If slaves come to be recognised as free

but not as citizens, this of itself opens a road by which the new

freeman may make good his claim that it is an inconsistency not to

recognise him as a citizen.

[1] As distinct from hunting. We do not go to war with lions and

tigers.

But no right can be founded on my mere desire to do what I like. [1]

The wish for this is the sting of the claim to unrecognised rights,

and this wish is to be met, as the fear that our view might lead

to despotism was met. The matter is one of fact and logic, not of

fancies and wishes. If I desire to assert an unrecognised right, I

must show what “position” involves it, and how that position asserts

itself in the system of recognitions which is the social mind, and my

point can only be established universally with regard to a certain

type of position, and not merely for myself as a particular A or B.

In other words, I must show that the alleged right is a requirement

of the realisation of capacities for good, and, further, that it

does not demand a sacrifice of capacities now being realised, out

of proportion to the capacities which it would enable to assert

themselves. I must show, in short, that in so far as the claim in

question is not secured by the State, Society is inconsistent with

itself, and falls short of being what it professes to be, an organ

of good life. And all my showing gives no _right_, till it has

{214} modified the law. To maintain a right against the State by

force or disobedience is rebellion, and, in considering the duty of

rebellion, we have to set the whole value of the existence of social

order against the importance of the matter in which we think Society

defective. There can hardly be a duty to rebellion in a State in

which law can be altered by constitutional process.

[1] Green, _Principles of Political Obligation_, p. 149.

The State-maintained system of rights, then, in its relation to the

normal self and will of ordinary citizens with their varying moods of

enthusiasm and indolence, may be compared to the automatic action of

a human body. Automatic actions are such as we perform in walking,

eating, dressing, playing the piano or riding the bicycle. They have

been formed by consciousness, and are of a character subservient to

its purposes, and obedient to its signals. As a rule, they demand

no effort of attention, and in this way attention is economised

and enabled to devote itself to problems which demand its intenser

efforts. They are relegated to automatism because they are uniform,

necessary, and external--“external” in the sense explained above,

that the way in which they are required makes it enough if they are

done, whatever their motives, or with no motives at all.

By far the greater bulk of the system of rights is related in this

way to normal consciousness. We may pay taxes, abstain from fraud and

assault, use the roads and the post-office, and enjoy our general

security, without knowing that we are doing or enjoying anything that

demands special attention. Partly, of course, attention is being

given by other consciousnesses to maintaining the securities and

{215} facilities of our life. Even so, the arrangement is automatic

in so far as there is no reason for arousing the general attention in

respect to it; but to a varying extent it is automatic throughout,

and engrained in the system and habits of the whole people. We are

all supposed to know the whole law. Not even a judge has it all in

his knowledge at any one time; but the meaning is that it roughly

expresses our habits, and we live according to it without great

difficulty, and expect each other to do so. This automatism is not

harmful, but absolutely right and necessary, so long as we relegate

to it only “external” matters; _i.e._ such as are necessary to be

done, motive or no motive, in some way which can be generally laid

down. Thus used, it is an indispensable condition of progress. It

represents the ground won and settled by our civilisation, and leaves

us free to think and will such matters as have their value in and

through being thought and willed rightly. If we try to relegate these

to automatism, then moral and intellectual death has set in.

But if the system of rights is automatic, how can it rest on

recognition? Automatic actions, we must remember, are still of a

texture, so to speak, continuous with consciousness. “Recognition”

expresses very fairly our habitual attitude towards them in ourselves

and others. We might think, for example, of the system of habits and

expectations which forms our household routine. We go through it

for the most part automatically, while “recognising” the “position”

of those who share it with us, and respecting the life which is its

end. At points here and there in which it {216} affects the deeper

possibilities of our being, our attention becomes active, and we

assert our position with enthusiasm and conscientiousness. Our

attitude to the social system of rights is something like this. The

whole order has our habitual recognition; we are aware of and respect

more or less the imperative end on which it rests--the claim of a

common good upon us all. Within the framework of this order there is

room for all degrees of laxity and conscientiousness; but, in any

case, it is only at certain points, which either concern our special

capacity or demand readjustment in the general interest, that intense

active attention is possible or desirable.

The view here taken of automatism and attention in the social whole

impairs neither the unity of intelligence throughout society nor

the individual’s recognition of this unity as a self liable to be

opposed to his usual self. As to the former point, every individual

mind shows exactly the same phenomena, of a _continuum_ largely

automatic, and thoroughly alive only in certain regions, connected,

but not thoroughly coherent. As to the latter point, permeation of

the individual by the habits of social automatism does not prevent,

but rather gives material for, his tendency to abstract himself from

the whole, and to frame an attitude for himself inconsistent with his

true “position,” against which tendency the imperative recognition of

his true self has constantly to be exerted.

7. We have finally to deal with the actual application by the State

of its ultimate resource for the maintenance of rights, viz., force.

Superior force may be exercised upon human nature both {217} by

rewards and by punishments. In both respects its exercise by the

State would fall generally within the lines of automatism; that is

to say, it would be a case of the promotion of an end by means other

than the influence of an idea of that end upon the will. But, owing

to the subtle continuity of human nature throughout all its phases,

we shall find that there is something more than this to be said, and

that the idea of the end is operative in a peculiar way just where

the agencies that promote it appear to be most alien and mechanical.

In so far as this is the case, the general theory of the negative

character of State action has to be modified, as we foresaw, [1] by

the theory of punishment. _Prima facie_, however, it is true that

reward and punishment belong to the automatic element of social life.

They arise in no direct relation of the will to the end. They are a

reaction of the automatic system, instrumental to the end, against

a friction or obstacle which intrudes upon it, or (in the case of

rewards) upon the opposite of a friction or obstacle. There is no

object in pressing a comparison into every detail; but perhaps, as

social and individual automatism do really bear the same kind of

relation to consciousness, it may be pointed out that reward and

punishment correspond in some degree to the pleasures and pains of a

high-class secondary automatism, say of riding or of reading, _i.e._

of something specially conducive to enhanced life. Such activities

bring pleasure when unimpeded, and pain when sharply interrupted

by a start or blunder which jars upon us. Putting this latter case

in language which {218} carries out the analogy to punishment,

we might say that the formed habit of action, unconsciously or

semi-consciously relevant to the end or fuller life, is obstructed by

some partial start of mind, and their conflict is accompanied with

recognition, pain, and vexation. “What a fool I was,” we exclaim, “to

ride carelessly at that corner,” or “to let that plan for a holiday

interrupt me in my morning’s reading.”

[1] P. 189.

It may seem remarkable that reward plays a small and apparently

decreasing part in the self-management of society by the public

power. To the naïve Athenian, [1] it seemed a natural instrument for

the encouragement of public spirit, probably rather by a want of

discrimination between motives than by a real belief in political

selfishness. In European countries honours still appear to play a

considerable part, but on analysis it would be found less than it

seems. Partly they are recognitions of important functions, and

thus conditions rather than rewards. To a great extent, again, they

recognise existing facts, and are rather consequences of the respect

which society feels for certain types of life (with very curious

results in regions where the general mind is inexperienced, _e.g._ in

fine art) than means employed to regulate the conduct of citizens.

We should think a soldier mean whose aim was a peerage, still more a

poet or an artist. I hardly know that rewards adjudged by the State,

as distinct from compensations, exist {219} in the United States

of America. [2] Rewards then fill no place correlative to that of

punishments, and the reason seems plain. Punishment corresponds much

better to the negative method which alone is open to the State for

the maintenance of rights. For Punishment proclaims its negative

character, and no one can suppose it laudable simply to be deterred

from wrong-doing by fear of punishment. But though precisely the same

principle applies to meritorious actions done with a view to reward,

an illusion is almost certain to arise which will hide the principle

in this case. For, if reward is largely used as an inducement to

actions conducive to the best life, it is almost certain that it

will be used as an inducement to actions, the value and certainty of

which depend on the state of will to which they are due. And then the

distinction between getting them done, motive or no motive, which

is the true region of State action, and their being done with a

certain motive, which is necessary to give them either practical or

moral value, is pretty sure to be obliterated, and the range of the

moral will trenched upon in its higher portion and with a constant

tendency to self-deception. [3] {220} It is the same truth in other

words when we point out that taking reward and punishment, as

interferences, only to deal with exceptional cases, reward would deal

with the exceptionally good. Therefore, again, reward must either

make an impossible attempt to deal with all the normal as good, which

involves the danger of _de_-moralising the whole of normal life,

or must take the line of specially promoting what is exceptionally

conducive to good life; in which case confusion is certain to arise

from interference with the delicate middle class of external actions

analysed above. [4] And thus it is only what we should expect when

we find that States having no _damnosa hereditas_ of a craving for

personal honours are hardly acquainted with the bestowal of rewards

by the public power.

[1] “Speech of Pericles,” Thucyd., ii. 46: “Where there are the

greatest rewards of merit, there will be the best men to do the work

of the State.” Contrast Plato’s principle that there can be no sound

government while public service is done with a view to reward.

[2] The precise theory of the grants in money made to soldiers or

sailors, for distinguished service, is not easy to state. But it

seems clear that they are not intended to act as motives. They are

essentially a recognition after the act, not an inducement held out

before it.

[3] It is perhaps permissible to observe in general, what is very

well known to all who have much experience of what is called

philanthropy, that the tendency to distinguish it by public honours

is exceedingly dangerous to its quality, which depends entirely on

that energy and purity of intelligence which can only accompany the

deepest and highest motives. Mere vulgar self-seeking is not the

danger (though it does occur) so much as obfuscation of intelligence

through a mixture of aims and ideas.

[4] P. 199.

It will be sufficient, then, to complete the account of State action

in maintenance of rights by some account of the nature and principles

of punishment.

And we may profitably begin by recalling M. Durkheim’s suggestion,

which was mentioned in a former chapter. [1] Punishment, he observes,

from the simplest and most actual point of view, includes in itself

all those sides which theory has tended to regard as incompatible.

It is, in essence, simply the reaction of a strong and determinate

collective sentiment against an act which offends it. It is idle

to include such a reaction entirely under the head either of

reformation, or of retaliation, or of prevention. An aggression is

_ipso facto_ a sign of character, an injury, and a menace; and the

reaction against it is equally _ipso facto_ an attempt {221} to

affect character, a retaliation against an injury, and a deterrent

or preventive against a menace. When we fire up at aggression it is

pretty much a chance whether we say “I am going to teach him better

manners,” or “I am going to serve him out,” or “I am going to see

that he doesn’t do that again.” A consideration of each of these

aspects is necessary to do justice both to the theories and to the

facts.

[1] P. 37.

i. An obvious point of view, and the first perhaps to appear in

philosophy, though strongly opposed to early law, is that the aim of

punishment is to make the offender good. As test of the adequacy of

this doctrine by itself, the question may be put, “If pleasures would

cure the offender, ought he to be given pleasures?” The doctrine,

however, does not, by any means, altogether incline to leniency. For

it carries as a corollary the extirpation of the incurable, which

Plato proposes in a passage of singularly modern quality, when he

suggests the co-operation of judges and physicians in maintaining the

moral and physical health of society. [1]

[1] _Republic_, 409, 410.

The first comment that occurs to us is, that by a mere medical

treatment of the offender, including or consisting of pleasant

conditions, if helpful to his cure, the interest of society seems

to be disregarded. What is to become of the maintenance of rights,

if aggressors have to anticipate a pleasant or lenient “cure”? It

may be true that brutal punishments stimulate a criminal temper in

the people rather than check it; but it is a long way from this to

laying down that there is no need {222} for terror to be associated

with crime. To suppose that pleasures may simply act throughout as

pains, is playing with words and throws no light on the question.

If we leave words their meaning, we must say that punishment must

be deterrent for others as well as reformatory for the offender,

and therefore in some degree painful. It is true, however, that the

offender, as a human being, and presumably capable of a common good,

has, as Green puts it, “reversionary rights” of humanity, and these,

punishment must so far as possible respect.

But there is a deeper difficulty. If the reformation theory is to be

seriously distinguished from the other theories of punishment, it has

a meaning which is unjust to the offender himself. It implies that

his offence is a merely natural evil, like disease, and can be cured

by therapeutic treatment directed to removing its causes. But this

is to treat him not as a human being; to treat him as a “patient,”

not as an agent; to exclude him from the general recognition that

makes us men. (If the therapeutic treatment includes a recognition

and chastisement of the offender’s bad will [1]--the form of which

chastisement may, of course, be very variously modified--then

there is no longer anything to distinguish the reformatory theory

from other theories of punishment.) It has been lately pointed out

[2] what a confusion is involved in the claim that beings, who

are irresponsible and so incapable of guilt, are therefore in the

strict sense innocent. Here are the true objects {223} for a pure

reformatory theory. Here that may freely be done, as to creatures

incapable of rights, which is kindest for them and safest for

society, from quasi-medical treatment to extirpation. There is no

guilt in them to demand punishment, but there is no human will in

them to have the rights of innocence.

[1] Plato’s reformatory theory seems to involve this.

[2] Mr. Bradley, in the _International Journal of Ethics_, April,

1894.

But, applied to responsible human beings, such a theory, if really

kept to its distinctive contention, is an insult. It leads to the

notion that the State may take hold of any man, whose life or ideas

are thought capable of improvement, and set to work to ameliorate

them by forcible treatment. There is no true punishment except where

one is an offender against a system of rights which he shares, and

therefore against himself. And such an offender has a right to the

recognition of his hostile will; it is inhuman to treat him as a wild

animal or a child, whom we simply mould to our aims. Without such

a recognition, to be punished is not, according to the old Scotch

phrase, to be “justified.”

ii. The idea of retaliation or retribution, though in history the

oldest conception of punishment, [1] may be taken in theory as a

protest against the conception that punishment is only a means for

making a man better. Its strong point is its definite idea of the

offender. The offender is a responsible person, belonging to a

certain order which he recognises as entering into him and as entered

into by him, and he has made actual an intention hostile to this

order. He has, {224} as Plato’s Socrates insists in the _Crito_,

destroyed the order so far as in him lies. In other words, he has

violated the system of rights which the State exists to maintain,

and by which alone he and others are secured in the exercise of any

capacity for good, this security consisting in their reciprocal

respect for the system. His hostile will stands up and defies the

right, in so far as his personality is asserted, through a tangible

deed which embodies the wrong. It is necessary, then, that the power

which maintains the system of rights should not merely, if possible,

undo the external harm which has been done, but should strike down

the hostile will which has defied the right by doing that harm.

The end or true self is in the medium of mind and will, and is

contradicted and nullified so far as a hostile will is permitted to

triumph.

[1] We saw that, even in its earliest forms, it cannot really be

taken to exclude the other aspects.

It is obvious, however, that the means by which the hostile will can

be negatived fall _prima facie_ within the region of automatism.

The recalcitrant element of consciousness is not susceptible to the

end as an idea, or it would not be recalcitrant. The end can here

assert itself, agreeably to the general principle of State action,

only through external action the mental effects of which cannot

be precisely estimated. It might, therefore, seem that the pain

produced by the reaction of the automatic system on the aberrant

consciousness--the punishment--was simply a natural pain, which might

act as a deterrent from aberration, but had no visible connection

with the true whole or end for the mind of the offender. We shall

speak below of the sense in which {225} punishment is deterrent or

preventive. But it is to be noted at this point that a high-class

secondary automatism, with which all along we have compared the

system of rights as engrained in the habits of a people, retains

a very close connection with consciousness. We do not indeed will

every step that we walk, but we only walk while we will to walk, and

so with the whole system of routine automatism which is the method

and organ of our daily life. At any interruption, any hindrance or

failure, consciousness starts up, and the end of the whole routine

comes sharply back upon us through our aberration.

So it is with punishment. Primarily, no doubt, chastisement by pain,

and the appeal to fear and to submissiveness, is effective through

our lower nature, and, in as far as operative, substitutes selfish

motives for the will that wills the good, and so narrows its sphere.

But there is more behind. The automatic system is pulsing with the

vitality of the end to which it is instrumental; and when we kick

against the pricks, and it reacts upon us in pain, this pain has

subtle connections throughout the whole of our being. It brings us

to our senses, as we say; that is, it suggests, more or less, a

consciousness of what the habitual system means, and of what we have

committed in offending against it. When one stumbles and hurts his

foot, he may look up and see that he is off the path. If a man is

told that the way he works his factory or keeps his tenement houses

is rendering him liable to fine or imprisonment, then, if he is an

ordinary, careless, but respectable citizen, he will feel some thing

of a shock, and recognise that he was getting {226} too neglectful

of the rights of others, and that, in being pulled up, he is brought

back to himself. His citizen honour will be touched. He will not like

to be below the average which the common conscience had embodied in

law.

When we come to the actual criminal consciousness, the form which

the recognition may take in fact may vary greatly; and as an extreme

there may be a furious hostility against the whole recognised

system of law, either involving self-outlawry through a despair of

reconciliation, or arising through some sort of habitual conspiracy

in which the man finds his chosen law and order as against that

recognised by the State. [1] But after all, we are dealing with a

question of social logic and not of empirical psychology. And it must

be laid down that, in as far as any sane man fails altogether to

recognise in any form the assertion of something which he normally

respects in the law which punishes him (putting aside what he takes

to be miscarriage of justice), he is outlawed by himself and the

essentials of citizenship are not in him. Doubtless, if an uneducated

man were told, in theoretical language, that in being punished for

an assault he was realising his own will, he would think it cruel

nonsense. But this is a mere question of language, and has really

nothing to do with the essential state of his consciousness. He would

understand perfectly well that he was being served as he would say

anyone should be served, whom he saw acting as he had done, in a case

where his own {227} passions were not engaged. And this recognition,

in whatever form it is admitted, carries the consequence which we

affirm.

[1] See the account of the Mafia in Marion Crawford’s _Corleone_.

Accepting this as described, it simply is the social will in which

the population of a certain region find their substitute for the

State.

In short, then, compulsion through punishment and the fear of it,

though primarily acting on the lower self, does tend, when the

conditions of true punishment exist (_i.e._ the reaction of a system

of rights violated by one who shares in it), to a recognition of the

end by the person punished, and may so far be regarded as his own

will, implied in the maintenance of a system to which he is a party,

returning upon himself in the form of pain. And this is the theory

of punishment as retributive. The test doctrine of the theory may be

found in Kant’s saying that, even though a society were about to be

dissolved by agreement, the last murderer in prison must be executed

before it breaks up. The punishment is, so to speak, his right, of

which he must not be defrauded.

There are two natural perversions of this theory.

The first is to confuse the necessary retribution or reaction of the

general self, through the State, with personal vengeance. [1] Even in

the vulgar form, when a brutal murder evokes a general desire to have

the offender served out, [2] the general or social indignation is

not the same as the selfish desire for revenge. It is the offspring

of a rough notion of law and humanity, and of the feeling that a

striking aggression upon them demands to be strikingly put down. Such

a sentiment is a part {228} of the consciousness which maintains the

system of rights, and can hardly be absent where that consciousness

is strong.

[1] It may be noted that Durkheim, relying chiefly on early religious

sentiment, denies Maine’s view that criminal law arises out of

private feud.

[2] Green, _Principles of Political Obligation_, p. 184.

The second perversion consists in the superstition that punishment

should be “equivalent” to offence. In a sense, we have seen, it

is _identical_; _i.e._ it is a return of the offender’s act upon

himself by a connection inevitable in a moral organism. But as for

_equivalence_ of pain inflicted, either with the pain caused by the

offence or with its guilt, the State knows nothing of it and has no

means of securing it. It cannot estimate either pain or moral guilt.

Punishment cannot be adapted to factors which cannot be known. And

further, the attempt to punish for immorality has evils of its own.

[1] The graduation of punishments must depend on wholly different

principles, which we will consider in speaking of punishment as

preventive or deterrent.

[1] See above, p. 192.

iii. The graduation of punishments must be almost entirely determined

by experience of their operation as deterrents. It is to be borne in

mind, indeed, (i.) that the “reversionary rights” of humanity in the

offender are not to be needlessly sacrificed, and (ii.) that the true

essence of punishment, as punishment, the negation of the offender’s

anti-social will, is in some way to be secured. But these conditions

are included in the preventive or deterrent theory of punishment, if

completely understood; if, that is to say, it is made clear precisely

what it is that is to be prevented.

If we speak of punishment, then, as having for {229} its aim to be

deterrent or preventive, we must not understand this to mean that a

majority, or any persons in power, may rightly prevent, by the threat

of penalties, any acts that seem to them to be inconvenient.

That which is to be prevented by punishment is a violation of the

State-maintained system of rights by a person who is a party to

that system, and therefore the above-mentioned conditions, implied

in a true understanding of the reformatory and retributive aspects

of punishment, are also involved in it as deterrent. But, this

being admitted, we may add to them the distinctive principle on

which a deterrent theory insists. If a lighter punishment deter as

effectively as a heavier, it is wrong to impose the heavier. For the

precise aim of State action is the maintenance of rights; and if

rights are effectively maintained without the heavier punishment,

the aim of the State does not justify its imposition. It is well

known that success in the maintenance of rights depends not only on

the severity of punishments, but also on the true adjustment of the

rights themselves to human ends, and on that certainty of detecting

crime which is a result of efficient government. And it must always

be considered, in dealing with a relative failure of the deterrent

power of punishment in regard to certain offences, whether a better

adjustment of rights or a greater certainty of detection will not

meet the end more effectively than increased seventy of punishment.

We have seen that the equivalence of punishment and offence is really

a meaningless superstition. And there is no principle on which {230}

punishment can be rationally graduated, except its deterrent power as

learned by experience. This view corresponds to the true limits of

State action as determined by the means at its disposal compared with

the end which is its justification, and is therefore, when grasped in

its full meaning as not denying the nature of punishment, the true

theory of it.

We saw, in speaking of punishment as retributive, in what sense it

can and cannot rest upon a judgment imputing moral guilt. Of degrees

of moral guilt as manifested in the particular acts of individuals,

the State, like all of us, is necessarily ignorant. But this is

not to say that punishment is wholly divorced from a just moral

sentiment. Undoubtedly it implies and rests upon a disapproval of

that hostile attitude to the system of rights which is implied in the

realised intention constituting the violation of right. Though in

practice the distinction between civil and criminal law in England

carries out no thoroughly logical demarcation, yet it is true on

the whole to say with Hegel that, in the matter of a civil action,

there is no violation of right as such, but only a question in whom

a certain right resides; while in a matter of criminal law there is

involved an infraction of right as such, which by implication is a

denial of the whole sphere of law and order. This infraction the

general conscience disapproves, and its disapproval is embodied in

a forcible dealing with the offender, however that dealing may be

graduated by other considerations.

I may touch here on an interesting point of detail, following Green.

If punishment is essentially {231} graduated according to its

deterrent power, and not according to moral guilt, how does it come

to pass that “extenuating circumstances” are allowed to influence

sentences? That they do so really, if not nominally, even in

England, there can be no doubt. Is it not that they indicate a less

degree of wickedness in the offender than the offence in question

would normally presuppose? It would seem that judges themselves

are sometimes under this impression. But it may well be that they

act under a right instinct and assign a wrong reason. For it is

impossible to get over the fact that moral iniquity is something

which cannot be really estimated. The true reason for allowing

circumstances which change the character of the act to influence

the sentence is that, in changing its character, they may take it

out of the class of offences from which men need to be deterred by

a recognised amount of severity. If a man is starving and steals a

turnip, his offence, being so exceptionally conditioned, does not

threaten the general right of property, and does not need to be

associated with any high degree of terror in order to protect that

right. A man who steals under no extraordinary pressure of need does

what might become a common practice if not associated with as much

terror as is found by experience to deter men from theft.

It may be said, in some exceptional emergency, “but many men are

now starving; ought not the theft of food, on the principle of

prevention, to be now punished with extreme severity, as other wise

it is likely to become common?” Or in general, ought not severity to

increase with {231} temptation or provocation, as a greater deterrent

is needed to counterbalance this? The case in which the temptation or

provocation is exceptional has just been dealt with. But if abnormal

temptation or provocation becomes common, as in a famine, or in some

excited condition of public feeling, then it must be remembered that

not one right only, but the system of rights as such, is what the

State has to maintain. If starvation is common, some readjustment of

rights, or at least some temporary protection of the right to live,

is the remedy indicated, and not, or not solely, increased severity

in dealing with theft. [1] If provocation becomes common, then the

rights of those provoked must be remembered, and the provocation

itself perhaps made punishable, like the singing of faction songs in

Ireland. Punishment is to protect rights, not to encourage wrongs.

[1] Though for the sake of all parties, and to avoid temptation, a

strong policing of threatened districts may be desirable in such

circumstances.

Thus, we have seen the true nature and aims of punishment as

following from the aim of the State in maintaining the system of

rights instrumental to the fullest life. The three main aspects of

punishment which we have considered are really inseparable, and each,

if properly explained, expands so as to include the others.

We may, in conclusion, sum up the whole theory of State action in

the formula which we inherit from Rousseau--that Sovereignty is the

exercise of the General Will.

First. All State action is General in its bearing and justification,

even if particular, or rather {232} concrete, in its details. It

is embodied in a _system_ of rights, and there is no element of it

which is not determined by a bearing upon a public interest. The

verification of this truth, throughout, for example, our English

system of public and private Acts of Parliament, would run parallel

to the logical theory of the Universal Judgment as it passes into

Judgments whose subjects are proper names. But the immediate point is

that no rights are absolute, or detached from the whole, but all have

their warrant in the aim of the whole, which at the same time implies

their adjustment and regulation according to general principles. This

generality of law is practically an immense protection to individuals

against arbitrary interference. It makes every regulation strike a

class and not a single person.

And, secondly. All State action is at bottom the exercise of a Will;

the real Will, or the Will as logically implied in intelligences

as such, and more or less recognised as imperative upon them. And,

therefore, though in the form of force it acts through automatism,

that is, not directly as conscious Will, but through a system which

gives rise to acts by influences apparently alien, yet the root

and source of the whole structure is of the nature of Will, and

its end, like that of organic automatism, is to clear the road for

true volition; it is “forcing men to be free.” And in so far as by

misdirection of the automatic [1] process it {234} encroaches on

the region of living Will the region where the good realises itself

directly by its own force as a motive it is “sawing off the branch on

which it sits,” and superseding the aim by the instrument.

[1] It must not be forgotten that the State is, by its nature,

under a constant temptation to throw its weight on the side of the

automatic process. A most striking example is its adoption of the

automatic water-carriage system in drainage, with far-reaching

economic consequences. See Poore’s _Rural Hygiene_ and _The Dwelling

House_.

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