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STUDIES
IN
HISTORY AND JURISPRUDENCE
HENRY FROWDE, M.A.
PUBLISHER TO THE UNIVERSITY OF OXFORD
LONDON, EDINBURGH
NEW YORK
STUDIES
IN HISTORY AND
JURISPRUDENCE
BY
JAMES BRYCE, D.C.L.
AUTHOR OF
‘THE HOLY ROMAN EMPIRE,’ ‘THE AMERICAN COMMONWEALTH,’ ETC.
FORMERLY REGIUS PROFESSOR OF CIVIL LAW IN THE UNIVERSITY
OF OXFORD; HONORARY FELLOW OF ORIEL AND TRINITY
COLLEGES, CORRESPONDING MEMBER OF THE
INSTITUTE OF FRANCE
IN TWO VOLUMES
VOLUME II
OXFORD
AT THE CLARENDON PRESS
1901
OXFORD
PRINTED AT THE CLARENDON PRESS
BY HORACE HART, M.A.
PRINTER TO THE UNIVERSITY
CONTENTS
_VOLUME I_
ESSAY I
PAGE
_THE ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA_ 1–84
Conquest or Absorption by modern European nations of the less 1
advanced races
Creation by this process of a sort of unity of mankind 2
Earlier effort of Rome to unify mankind 3
Part borne by England in the work of ruling and civilizing new 4
territories
The Colonies of England: the British Empire in India 4
Position of Rome and England respectively in their Empires 8
Origin of the British Indian compared with that of the Roman 8
Empire
Conditions favouring Roman and British Indian conquest 10
Military character of Roman and British rule 13
What the Roman and the English conquerors have owed to natural 14
frontiers
Strength of the Roman and British armies 17
Efforts to find a scientific frontier 19
The Romans and English as Road and Railway Builders 21
Success of both in maintaining internal order and security 23
Character of Roman and British administration 26
Despotic system: measure of self-government left to the subjects 30
Variations in provincial administration in Roman Empire and 35
India
Revenue and taxation of the two Empires 37
Employment of native subjects in civil and military posts 42
Civil rights of conquerors and of subjects 46
Respect shown to native religions and customs: contrast of 51
religious feeling in ancient and in modern world
Character of the conquerors as a source of their strength 58
Contrasts between the two Empires: geographical position of the 61
ruling race
Fusion of Romans and provincials: no similar fusion of English 62
and Indians
Influence of Climate, of Colour, of Religion 63
Languages and literature in Roman Empire and in India 70
Influences which favoured fusion in Roman Empire absent from 74
India
Retroactive influences of the provinces on Rome and of India on 76
Britain
What the experience of the English in India has proved 79
Causes which overthrew the Roman Empire 80
Probable future of British power in India 82
ESSAY II
THE EXTENSION OF ROMAN AND ENGLISH LAW THROUGHOUT THE WORLD 85-144
Geographical areas now covered by Roman and by English Law 85
Extension of Roman Law by conquest 88
Methods of Legal Administration in the provinces 91
Gradual assimilation of Roman and Provincial Law 97
Establishment of one law for the Roman Empire 99
How the Romans were able to create an imperial law 103
Spread of Roman Law after the fall of the Western Empire 105
Diffusion of English Law over regions settled or conquered 110
Legal systems which the English found in India 113
Policy followed by the English in dealing with Indian Law 117
Codification in India 121
Reciprocal action of English and Native Law on one another 124
Merits and working of the Anglo-Indian Codes 127
Roman Law in the Empire compared with English Law in India 133
Probable future of English Law in India 138
English and Roman Law over the world 142
ESSAY III
FLEXIBLE AND RIGID CONSTITUTIONS 145-254
Observations on the Constitutions of Rome and England 145
Old Classification of Constitutions as Written and Unwritten 148
Proposed new classification 150
Flexible Constitutions: how far distinguishable from laws in 154
general
Origin of Flexible Constitutions 159
Strength and weakness of Flexible Constitutions 163
Such Constitutions are rather elastic than unstable 168
Illustrations from the Constitutions of Rome and England 169
Dangers possibly inherent in Flexible Constitutions 175
Flexible Constitutions suited to aristocratic governments 178
Checks applied in Rome and in England 181
Influence of Constitutions on the mind of a nation 185
Illustrations from Rome and England 189
Capacity of Constitutions for Territorial Expansion 193
Enumeration of existing Rigid Constitutions 196
Circumstances under which Rigid Constitutions arise 200
Enactment and amendment of Rigid Constitutions 205
Various modes now in use for amending them 210
How far can Rigid Constitutions be definite or complete? 217
Stability of Rigid Constitutions 221
The interpretation of Rigid Constitutions 228
Contrast of Anglo-American doctrines with those of the European 230
Continent
American views as to Interpretation 232
Suitability of Rigid Constitutions to Democracies 234
Recent changes of opinion in the United States and England 239
Probable future of the two types of Constitution 242
Proposals for federalizing the British Constitution 245
Possible creation of new States and Constitutions 249
ESSAY IV
THE ACTION OF CENTRIPETAL AND CENTRIFUGAL FORCES ON POLITICAL 255-311
CONSTITUTIONS
The influence of aggregative and disjunctive forces on political 255
societies
Tendencies which may act either Centripetally or Centrifugally 261
Influences of Interest and Sympathy 263
Illustrations of the action of Racial and Religious sentiment 265
In the progress of civilization, material interest and sentiment 269
may be opposed
How Constitutions may use the existing Centripetal and 271
Centrifugal forces
Illustrations from Commerce, Law and Religion 274
Instances of the troubles caused by Racial or Religious 281
sentiment
Methods by which Constitutions may disarm or regulate the 286
centrifugal forces: illustrations
Difficulties due to differences of colour in races 291
How the Constitutions of the United States and Switzerland have 296
acted
The Centripetal force generally, but not always, dominant in 300
European history
Effects of Conquest and of Dynastic Succession 303
Probable future strength of the centrifugal and centripetal 307
forces respectively
Present tendency to the enlargement or consolidation of States 309
is not necessarily permanent
ESSAY V
PRIMITIVE ICELAND 312-358
Discovery and Settlement of Iceland 312
Beginnings of a Polity: the Thing 316
Rise of the Goði or Priest-Chieftain 317
The first political constitution of the island 322
Judicial organization and powers of the Althing 325
The Speaker of the Law 327
Thingvellir and the meetings of the Althing 327
General character of the Icelandic Republic 333
Growth and character of the law of Iceland 335
Complexity of the constitution and the law 337
Sources of our knowledge of the law 341
Illustrations of features of the early law 343
An action for the ejectment of ghosts 345
The Judicial Duel: Story of Gunnlaug Snake’s Tongue and Helga 348
the Fair
The introduction of Christianity 350
Reflections on the early history of Iceland 353
Fall of the Republic: subsequent fortunes of the isle 356
ESSAY VI
THE CONSTITUTION OF THE UNITED STATES AS SEEN IN THE PAST 359-429
Value of contemporary views of an institution 359
The _Federalist_: Alex Hamilton and James Madison 360
The United States in A.D. 1788 361
Predictions of the opponents of the New Constitution 366
Views of its supporters: dangers feared by them 369
Examination of the predictions of 1788 374
Characteristic merits and defects of American Democracy only 378
slightly foreseen
The _Democracy in America_ of Alexis de Tocqueville 381
Merits and flaws in Tocqueville’s study of the United States 382
His insufficient knowledge of England 385
His preoccupation with France 387
The deficiencies observable in his book scarcely affect its 390
present value
Condition of the United States in Tocqueville’s day 392
His description of the salient features of the nation 397
Advantages which he conceives Democracy to have secured 403
Evils he discovers in American Democracy 404
Causes which in his view maintain Republican government 406
His forecasts: the negroes: weakness of the Federal Union 408
Points omitted in his description 413
Chief events in the United States since Tocqueville’s time 415
Chief political changes of the last sixty-seven years 417
Examination of Tocqueville’s predictions 418
Summary of Tocqueville’s conclusions 425
General course of events in America since 1788 427
What Tocqueville would say to-day 428
ESSAY VII
TWO SOUTH AFRICAN CONSTITUTIONS 430-467
Originality of the Constitutions of the two Dutch Republics 430
Circumstances under which they arose 432
Constitution of the Orange Free State 436
Constitution of the South African Republic (Transvaal) 441
Observations on the Constitution of the South African Republic 448
Is it a Rigid or a Flexible Constitution? 449
Controversy as to the so-called ‘testing power’ 452
The Constitution is certainly a Flexible one 453
Observations upon both these Constitutions 455
Comparison of these Constitutions with that of Britain and that 458
of the United States
Relations of Executive and Legislature in these Dutch Republics 460
Practical Working of the Constitution of the Orange Free State 463
Working of the Constitution of the South African Republic 464
Postscript 466
ESSAY VIII
THE CONSTITUTION OF THE COMMONWEALTH OF AUSTRALIA 468-553
Interest attaching to the new Constitution of Australia 468
Origin and progress of the movement for federalizing Australia 471
Causes which induced Federation 477
Influence of a Pan-Australian sentiment 480
Physical and racial conditions favouring Federation 483
Comparison with the conditions of the United States and of 487
Canada
Two leading types of Federal Government 489
Distribution of powers between the Nation and the States in the 491
Australian Constitution
Position of the Australian States under the Constitution 494
Differences from the Federal systems of the United States and of 498
Canada
The National Government: few restrictions on its powers 501
The Legislature: Representation of the States in the Senate 503
The House of Representatives 506
The Executive and the Judiciary 508
Question as to Constitutional Appeals: the British Government 509
yield to Australian sentiment
Intended working of the scheme of Government: The Cabinet 513
Provision against legislative deadlocks 516
Relations of the Two Houses 518
Financial provisions: railways and rivers 521
Location of the national capital: admission of New States 522
Mode of amending the Constitution 523
Relations of the Australian Commonwealth to the British Crown 525
General comparison of the Australian Constitution with that of 527
the United States
Comparison with that of the Dominion of Canada 528
Further observations on the Constitution 531
It is less strictly Federal and more National than that of the 532
United States
Its highly democratic character 535
It contemplates a party system 539
Difficulties which may arise from the existence of a third party 540
What political issues are likely to arise in Australia? 542
Probable prominence of Economic questions 545
Possible creation and admission of New States 547
Will New Zealand enter the Federation? 548
Tendencies to consolidation maybe strengthened by disputes with 550
foreign powers
Future relations of Australia to Britain 551
_VOLUME II_
ESSAY IX
OBEDIENCE 1-48
Different Theories of the Nature of Political Obedience 1
The grounds of compliance in general: Indolence 6
Deference and Sympathy 9
Reason and Fear 12
Respective strength of these springs of Obedience 14
Will as a political force: Illustrations from the East 15
Formation of the habit of Obedience in the individual 19
Influences forming Obedience in early societies 21
Slight interest of men in liberty for its own sake 24
Is the tendency to obey likely to decrease? 26
Influences apparently making for subordination 28
What may be hoped for the future of democratic government 31
How a pessimist might view existing conditions 33
Conclusion: The disposition to obey will be permanent 41
Note on the application to the definitions of Jurisprudence of a 44
theory of Obedience
ESSAY X
THE NATURE OF SOVEREIGNTY 49-111
Confusions regarding the term Sovereignty 49
Sovereignty _de iure_ and _de facto_ must be distinguished 51
Sovereignty _de iure_ exists in the sphere of law only, and is 56
not concerned with obedience
Sovereignty _de facto_: concrete instances 59
Relations of Sovereignty _de iure_ to that _de facto_ 64
Action and reaction of each on the other 68
The Roman doctrine of Sovereignty: the people are the source of 73
political power
Mediaeval views of Sovereignty: Emperor and Pope 79
New theories of the sixteenth and seventeenth centuries 82
Bodin, Althaus, Hobbes 84
Relation of Hobbes’ system to the events of his time 86
Bentham revives Hobbes’ doctrine 88
Views of John Austin: illustrations of their unsoundness 89
Confusion of various questions regarding Sovereignty which are 94
really distinct
Rights in the moral sphere of Sovereignty _de iure_ and 98
Sovereignty _de facto_
Sovereignty in International Relations 101
Sovereignty in a Federation 104
Conclusion: Theoretical Controversies regarding Sovereignty have 108
mostly had their origin in current politics
ESSAY XI
THE LAW OF NATURE 112-171
Origin of the notion of Nature as a ruling force 112
It is different from modern conception of the Laws of Nature 117
Nature as a force in human society 120
The term ‘Natural’ as applied to Customs and Laws 122
St. Paul and the Greek philosophers on Natural Law 124
The Roman Law of the Nations (_Ius Gentium_) 128
How the ‘common law of the nations’ was formed 131
Cicero on the Law of the Nations and Law of Nature 135
Growth of the idea of Natural Law among the jurists 138
Practical identification of _Ius Gentium_ and _Ius Naturae_ 142
Points of difference which remained: Slavery 144
Extension of Roman citizenship removes the need for a _Ius 147
Gentium_
Senses in which the jurists use the term ‘Nature’ 148
Value and practical influence of the notion of Natural Law 151
The Law of Nature and Law of God in the Middle Ages 157
The Law of Nature in Modern Times 161
Its relation to the Law of England 164
Its influence on the rise of International Law 167
‘Natural Law’ as meaning a Philosophy of Law 169
Conclusion: Comparative quiescence of the idea in recent times 170
ESSAY XII
THE METHODS OF LEGAL SCIENCE 172-208
No Philosophy of Law among the Roman Jurists; is such a 172
Philosophy necessary or serviceable?
Four Methods employed in Legal Science 174
The Metaphysical Method: German _Naturrecht_ 174
The Analytic Method: the Benthamites 178
Errors in John Austin’s use of it 180
The Historical Method 184
The Comparative Method 186
Value of these four Methods respectively 190
How they may best be applied to Legal Study 193
Did the Romans suffer from having no general Philosophy of Law? 197
Merits observable in the Roman Jurists: comparison of their 199
treatises with those of English lawyers
Summary: The Roman Jurists are philosophical in spirit and in 207
their practical handling of law
ESSAY XIII
THE RELATIONS OF LAW AND RELIGION 209-246
Apparent Antagonism of Law and Religion 209
Close connexion of Law and Religion in early states of Society 211
Differences in this respect between different peoples 215
The Jews in Roman times: primitive Christianity 216
Islam; identification of Law with Religion 218
Illustrations from a Musulman University: the Mosque El Azhar at 219
Cairo
Description of El Azhar and its Teaching 220
Course of Instruction: Graduation: Endowments 225
Resemblances of El Azhar to the European Universities of the 229
Middle Ages
Causes of the arrested development of Musulman Universities 233
Nature and consequences of the Musulman identification of Law 234
and Religion
Identity of State and Church under Islam 240
How Christianity avoided a similar identification 242
ESSAY XIV
METHODS OF LAW-MAKING IN ROME AND IN ENGLAND 247-338
Relations of the History of Law to the Constitutional or 247
Political History of a Country
Law-making Authorities in general 249
Three main sources of Law: the Ruling Authority, the Magistrate, 253
and the Legal Profession
The Jurists as makers of Law in earlier times 255
Changed position of the Jurists under the Empire 257
Differences between the action of Roman and English Jurists 261
Roman Treatises compared with English Reports 266
Magistrates and Judges: in what sense Law-makers 269
The Praetor at Rome 273
Nature and Working of the Praetor’s Edict 275
The English Chancellor 278
Praetorian Edicts compared with English Case-Law 281
Further observations on Praetorian methods 287
Strong and weak points in the English Case-System 289
Direct Legislation at Rome: its Organs 293
The Popular Assembly: its method of legislating 297
Merits of the Roman Statutes 300
Legislation by the Senate: its characteristics 303
Direct legislation by the Emperor 308
Vast powers of the Emperor: his Privy Council 313
Defects in Imperial legislation 315
Profusion and inferiority of legislation under the later 318
Emperors
Direct legislation in England: its history 321
Advantages of Parliament and Congress for legislation 323
Strictures commonly passed on English and Amercan Statutes 325
Difficulties incident to Parliamentary legislation 327
Reflections suggested by the history of English compared with 332
that of Roman legislation
Some branches of law better fitted than others to be handled by 333
direct legislation
ESSAY XV
THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND 339-380
Roman and English Law have both been developed in a 339
comparatively independent way
Conspicuous epochs of legal change at Rome and in England 341
Forces and influences chiefly active in determining legal 344
changes
Roman Legal History during the republican period 345
Effect on the law of the establishment of the imperial autocracy 350
Rise of Christianity: dissolution of the Empire in the West 352
The decline in legal learning induced Codification 354
Political events and External Influences are the chief sources 357
of changes in Roman Law
Causes of legal change operative in England: the periods of 358
Henry II and Edward I
The Reformation and the Civil War 361
The Reform Act of 1832 and the Victorian Epoch 364
The Law of Family and Inheritance at Rome and the Law of Land in 367
England
Effects of Territorial Expansion on Roman and on English Law 369
Economic influences more generally potent in England: political 371
in Rome
Observations on France and Germany 375
Private law is the branch least affected by political changes 377
Legal topics in which further advances may be looked for 379
ESSAY XVI
MARRIAGE AND DIVORCE IN ROMAN AND IN ENGLISH LAW 381-474
Diversity of the Law of Marriage in different countries 381
Features generally characteristic of the institution in the 383
ancient Mediterranean World
Early Marriage law of the Romans 386
Subordination of the Wife: the ‘Hand Power’ (_Manus_) 387
Transition to a freer system 389
Later Marriage Law: nature of the personal relation it creates 392
Relation of the Consorts as respects Property 395
General character of the Roman Conception of Marriage: its 400
freedom
Roman doctrine and practice regarding Divorce 402
Influence of Christianity on Imperial Legislation 406
Other Roman rules: prohibited degrees: _Concubinatus_ 409
Marriage under the Canon Law 416
The English Law: jurisdiction of the Spiritual Courts 420
Relations of the Consorts as respects Property under English Law 424
Amendment of English Matrimonial Law by courts of Equity and by 427
Legislation
Personal Liberty of the Wife now well established 430
English law has wavered between different theories of the 431
relation
Divorce under the Canon Law 433
History of Divorce in England 436
Divorce Laws in the United States 439
Laxity of Procedure in Divorce Cases 441
Statistics of Divorce in the United States: causes for which it 443
is granted
Illustrations from the ‘Western Reserve’ counties of Ohio 446
Divorce in modern European countries 450
Comparison of the phenomena of Divorce in the Roman and in the 453
Modern World
Causes now tending to weaken the permanence of the Marriage Tie 457
Does the growth of Divorce betoken a moral decline? 461
Influence of the Church and of the Law 464
Does the English Divorce Law need amendment? 465
Changes in Theory and in Sentiment regarding Marriage 469
INAUGURAL LECTURE 475
VALEDICTORY LECTURE 504
INDEX 527
IX
OBEDIENCE
The question which meets on the threshold of their inquiries all who
have speculated on the nature of political society and the foundations
of law is this: What is the force that brings and keeps men under
governments? or, in other words, What is the ground of Obedience?
I. THEORIES REGARDING POLITICAL OBEDIENCE.
The answers given by philosophers to this question, while varying in
form, group themselves under two main heads. Some assign Fear as the
ground, some Reason. One school discovers the power that binds men
together as members of a State in Physical Force, acting upon them
through the dread of death or other physical evil. The other conceives
it to lie in a rational view of the common advantage, which induces men
to consent of their own free will to forgo some measure of their
(supposed) original personal independence in order to obtain certain
common benefits. Thus, while the former school finds the origin of law
in Compulsion, the latter finds it in Agreement.
Both schools are of high antiquity, and have been represented by many
eminent names. One gathers from Plato that divers sophists maintained
the former thesis. It is in substance not far from that assigned to
Thrasymachus in the _Republic_, where the Sophist says that Justice is
nothing but the advantage of the stronger; and in later times Hobbes and
Bentham are eminent among those who embrace it. The other view is most
familiar to moderns from the writings of Rousseau; but it has a long and
interesting history, intertwined with that of the notions of the State
of Nature and the Law of Nature, and also with the history of the
conception of Sovereignty—topics which are discussed elsewhere in this
volume. Rousseau grounds obedience on the original ‘social contract’
whereby each and every person agrees with every other to forgo his
natural freedom by constituting a State which is to act for all, and in
which the citizen recovers his freedom because he is himself a part of
that ‘general will’ to which he renders a reasonable service. The
Aristotelian doctrine that men are by their very constitution sociable
creatures, naturally drawn to create and to live in communities, comes
nearer to the second view, while escaping by its generality of
expression the errors into which those who set political society upon
the foundation of contract have frequently been betrayed. And it need
not be added that many other philosophers in comparatively modern times,
basing the State, some of them on the nature of man, some on eternal
reason or the will of God, have held that it thereby acquires an
absolute right to obedience from its members. These speculations,
however, seldom touch the particular point I propose to discuss here,
viz. the grounds which actually dispose men to obedience.
Of the two chief older theories, that which represents men as led by
reason to enter into a Contract has of late fallen into discredit, being
indeed so evidently opposed to what we know of the early state of
mankind that it may be doubted whether most of those who propounded or
have adopted it did not mean it to be taken rather as an apologue or
mythical presentment of moral facts than as a piece of history. The
theory of Force and Fear, on the other hand, has retained much of its
vogue, having connected itself with a system of jurisprudential
terminology which is, or lately was, influential in England and not
unknown in America. According to Bentham and his followers, there is in
every State a Sovereign who enjoys unlimited physical, and therefore
also unlimited legal, power. His might makes his right. He rests on
Force and rules by Fear. He has the sole right of issuing Commands. His
Commands are Laws. They are enforced by Threats, and are obeyed in
respect of the apprehension of physical harm to follow on disobedience.
Whether those who adhere to this body of doctrine think it historically
true as an account of the origin of law, or merely adopt it as a concise
explanation and summary view of the principles on which modern law and
highly developed forms of political society are based, is not always
clear from the language they use. But the importance they attach to
Force appears not only from the contempt they pour on the contractual
theory of government, but also from their omission to refer to any facts
in the character and habits of mankind except those which are connected
with Force and Fear as factors in the development of the social
organism.
A little reflection will, however, convince any one who comes to the
question with an open mind that both these theories, that of compulsion
as well as that of contract, are alike incomplete, and, because
incomplete, are misleading. They err, as all systems are apt to err, not
by pointing to a wholly false cause, but by extending the efficiency of
a true cause far beyond its real scope. Rousseau is right in thinking
that political society needs a moral justification, and that the
principle of individual freedom is best satisfied where every one
obtains a share in the government to which he submits. The
Contractualists generally may find a solid basis for authority in the
fact that organized society does actually render to each of its members
some return for the so-called ‘natural liberty’ which he has
surrendered. Even a bad government gives him at least a measure of
protection, however imperfect, for his person and property against the
attacks of any one but the government itself. Here there is, if not what
we can call an implied contract, at least a consideration, a sort of
mutuality of service in the political relation, for which each member
gives something, and from which each gains something. To go further, and
either to explain the growth of government by a conscious bargain at
some past moment, or to conceive the idea of such a bargain as present
to the bulk of those who live in any actual society now, or to regard
the individual members of society as entitled to act upon contractual
principles towards their government and one another, is to plunge at
once into what are not more palpably historical errors than unworkable
principles. So also the school of Thrasymachus and that which claims
Hobbes as its founder are right in feeling that some test must be found
of the solidity of a community and the actual working strength of its
machinery; and they discover this in the fact that physical force is the
_ultima ratio_ wherewith to coerce the disturbers of the community and
the transgressors of the law. Without force in the background, the law
might be defied. It is when the men of this school, or some of them, go
on to represent physical compulsion as the means by which communities
have been in fact formed—though, to be sure, Hobbes himself alleges a
contract as the very first step[1]—and Fear as the motive which in fact
secures respect to the law from the majority of the citizens, that they
depart alike from history and from common sense. The problem of
political cohesion and obedience is not so simple as either school of
theorists would represent it.
-----
Footnote 1:
See as to the doctrine of Hobbes, the Essay on Sovereignty which
follows this Essay.
-----
To show that both schools are historically wrong would not be difficult.
This has been often done as against such of the Contractualists as have
held that conscious reason brought men out of the State of Nature by a
compact; and if the historians who deal with the earlier stages of human
progress have not cared to demolish the Physical Force doctrine, this
may have happened because none has thought it worth while to refute a
theory whose flimsiness they have perceived, but which they have deemed
to lie outside the sphere of history. As it is the historian who best
understands how much Force has done to build up States, so he most fully
sees that Force is only one among many factors, and not the most
important, in creating, moulding, expanding and knitting together
political communities. It is not, however, necessary to institute any
historical inquiry in order to reach this conclusion. An easier course
is to interrogate one’s own consciousness, and to observe one’s fellow
men. The problem of obedience to government and law is part of the
larger and even more obvious problem of the grounds of Obedience in
general. Why do we all forgo the gratification of many of our personal
desires, desires in themselves harmless, merely because they are not
shared by others? Why do we go on echoing opinions whose soundness we
more than doubt? Why do we pursue pleasures which give us no amusement,
but rather weariness? Why do we adhere to a party, political or
ecclesiastical, of whose conduct we often disapprove? Why in fact is so
large a part of our daily conduct determined, not by our own natural
preferences, but by compliance with the opinion of others or submission
to the social conditions that surround us?
II. THE GROUNDS OF OBEDIENCE IN GENERAL.
Political obedience is not a thing by itself, but a form of what may be
called Compliance in general.
The grounds or motives of Compliance can be summed up under five heads.
Putting them in the order of what seems to be their relative importance,
they may be described as the following—Indolence, Deference, Sympathy,
Fear, Reason. Let us consider each separately.
By Indolence I mean the disposition of a man to let some one else do for
him what it would give him trouble to do for himself. There are of
course certain persons to whom exertion, mental as well as physical, is
pleasurable, and who delight in the effort of thinking out a problem and
making a decision for themselves. There are also moments in the lives of
most of us when under the influence of some temporary excitement we feel
equal to a long succession of such efforts. But these are exceptional
persons and rare moments. To the vast majority of mankind nothing is
more agreeable than to escape the need for mental exertion, or, speaking
more precisely, to choose only those forms of exertion which are
directly accompanied by conscious pleasure and involve little fatigue.
In a great many exertions of thought resulting in determinations of the
will there is no pleasure, or at any rate no conscious pleasure, or at
any rate no pleasure which is not outweighed by an accompanying
annoyance. Such exertions may relate to things in which we have slight
personal interest, and therefore no desires to gratify, or to things in
which our personal interest is so doubtful that we shrink from the
trouble of ascertaining which way it lies, and are glad to shift the
responsibility from ourselves to whoever will undertake it for us. The
ascendency of one of a married couple, for instance, or of one member of
a group of persons living together, is usually acquired in some such
way. It is not necessarily the will really strongest that in these cases
prevails, but the will which is most active, most ready to take a little
trouble, to exert itself on trivial occasions and undertake small
responsibilities. Persons of a resolute and tenacious character are
sometimes also hesitating and undecided, because they cannot be at the
trouble of setting to work, for the little questions of daily life,
their whole machinery of deliberation and volition. In five persons out
of six the instinct to say Yes is stronger than the instinct to say
No—were it not so, there would be fewer marriages—and this is specially
so when the person who claims consent possesses exceptional force and
self-confidence. In other words, most of us hate trouble and like to
choose the line of least resistance. In tropical Africa the country is
covered by a network of narrow footpaths, made by the natives. These
paths seldom run straight, and their flexuosities witness to small
obstacles, here a stone and there a shrub, which the feet of those who
first marked them avoided. To-day one may perceive no obstacle. The
prairie which the path crosses may be smooth and open, yet every
traveller follows the windings, because it is less trouble to keep one’s
feet in the path already marked than it is to take a more direct route
for one’s self. The latter process requires thought and attention; the
former does not.
Nor is the compliance of indolence less evident in thought than in
action. To most people, nothing is more troublesome than the effort of
thinking. They are pleased to be saved the effort. They willingly accept
what is given them because they have nothing to do further than to
receive it. They take opinions presented to them, and assume rules or
institutions which they are told to admire to be right and necessary,
because it is easier to do this than to form an independent judgement.
The man who delivers opinions to others may be inferior to us in
physical strength, or in age, or in knowledge, or in rank. We may think
ourselves quite as wise as he is. But he is clear and positive, we are
lazy or wavering; and therefore we follow him.
Under the name of Deference it is convenient to include the various
cases in which some emotion, drawing one person to another, disposes the
former to comply with the will of the latter. Whether the emotion be
love, or reverence, or esteem, or admiration, a persuasion of superior
goodness or of superior wisdom, there is a feeling on the part of the
person attracted which makes him ready to sacrifice his own impulses, if
they be not of unusual strength, to the will of the person loved or
reverenced or admired. Wisdom and goodness give their possessor a
legitimate authority, wisdom in making him appear as a fit person to
follow where the question is of choosing means, goodness where it is a
question of the choice of ends; and the belief that these qualities
exist in the person revered or esteemed is just as effective as the
reality, such belief being obviously the result of many causes besides a
rational scrutiny. The force of the feeling of deference in securing
compliance or adhesion varies in different nations and in different
states of society. The advantages, for instance, which rank, wealth and
learning give to a candidate for any public post in a modern country
like France or England, only faintly represent the authority which
belonged to birth, learning and sanctity, whether real or supposed, in
simpler times. A so-called holy man in the Musulman or Hindu East, a
Fakir or a Guru, exerts to-day enormous power in his own neighbourhood,
in respect far less of any fear of the harm he can do than simply of the
veneration he inspires. Even if he does not claim a direct supernatural
mission, his words carry great weight. And there is abundant evidence in
the careers of famous Europeans in the East to show how readily in
primitive times a remarkable character and career would permanently
attach a halo, not only of admiration but of submissive deference, to
the descendants of such a person or to the occupant of the office he had
filled.
By Sympathy as a ground of obedience I mean not merely the emotion
evoked by the sight of a corresponding emotion in another, but the
various forms of what may be called the associative tendency in mankind,
the disposition to join in doing what one sees others doing, or in
feeling as others feel. The root of this instinct lies very near
Indolence; for no way of saving effort is so obvious as to do what
others have done or are doing; but it is not quite the same thing as
Indolence, for it is a tendency strong among some of the less indolent
races of mankind, and each of us must have noted from his own personal
experience that its action depends as much upon the susceptibility of
the imagination as upon the slowness or slackness of the will. There is
hardly a more potent factor than this in the formation of communities,
whether social or political, because it unites with, if it be not almost
identical with, what we call party and civic spirit, substituting a
sense of and a pleasure in the exercise of the collective will for the
pleasure of exerting the individual will, and thus tending to
subordinate the latter, and to make it rejoice in following, perhaps
blindly, the will which directs the common action. The shock to
individual pride is avoided, because each man acts spontaneously, at the
bidding of his own emotion, and each feels that what he may lose as an
individual he recovers as a member of the body, and that with a better
chance of indulging his passions at the expense of his antagonists. The
spirit of the body seems to live in and inspire him, increasing
indefinitely the force of his own personality. Obedience to the
directing authority is here a first necessity, and becomes the more
implicit the greater the dangers of whatever enterprise the body may
undertake. As fighting covers great part of the life of primitive
communities, the disposition to obey becomes early strong among them,
because in nothing is obedience so essential as in war.
Perhaps these three sources of the tendency to comply are really only
forms of, as they are certainly all closely connected with, the
disposition to imitate which is so strong, not only in man, but
throughout the animal kingdom, so far as we can observe it. When
ninety-nine sheep one after another jump over a fence at precisely the
point where the first of the flock has jumped it, they reveal a
propensity similar to that which makes a file of savages travelling over
a wilderness each tread in the footsteps of his predecessor, or that
which soon stamps the local accent upon the tongue of a child brought
from some other part of the country, where the mode of speech was
different. There is evidently a psychological, doubtless indeed a
physiological, cause for this general and powerful tendency to reproduce
the acts and ways of other creatures, even where, as in the case of a
local accent, there is no motive whatever for doing so. Conscious
imitation is of course frequently explainable by the desire to please,
or by a perception of the advantage of doing as others do. But there are
many facts to show that its roots lie deeper and that it is due largely
to a sympathy between the organs of perception and those of volition,
which goes on in unconscious or subconscious states of the mind, and
which makes the following of others, the reproduction of their acts, or
the adoption of their ideas, to be the path of least resistance, which
is therefore usually followed by weaker natures, and frequently even by
strong ones.
Of Fear and of Reason nothing need be said, because the school of Hobbes
and Bentham for the one, and the apostles of democratic theory for the
other, have said more than all that is needed to show the part they
respectively play in political society. Fear is no doubt the promptest
and most effective means of restraining the turbulent or criminal
elements in society; and is of course the last and necessary expedient
when authority either legally established or actually dominant is
threatened by insurrection. Reason operates, and operates with
increasing force as civilization advances, upon the superior minds,
leading them to forgo the assertion of their own wills even where such
assertion would be in itself innocent or beneficial, merely because the
authority which rules in the community has otherwise directed. Reason
teaches the value of order, reminding us that without order there can be
little progress, and preaches patience, holding out a prospect that
evils will be amended by the general tendency for truth to prevail.
Reason suggests that it is often better that the law should be certain
than that it should be just, that an existing authority should be
supported rather than that strife should be caused by the attempt to set
up a better one. So also Reason disposes minorities to acquiesce even
where a majority is tyrannical, in the faith that tyranny will provoke a
reaction and be overthrown by peaceable discussion.
Allowing for the efficacy of Fear as a motive acting powerfully upon the
ruder and more brutish natures, and for that of Reason as guiding the
more thoughtful and gentle ones, and admitting that neither can be
dispensed with in any community, their respective parts would
nevertheless seem to be less important than are the parts played by the
three first-mentioned motives. If it were possible either in the affairs
of the State, or in the private relations of life, to enumerate the
number of instances in which one man obeys another, we should find the
cases in which either the motive of Fear or the motive of Reason was
directly and consciously present to be comparatively few, and their
whole collective product in the aggregate of human compliance
comparatively small. If one may so express it, in the sum total of
obedience the percentage due to Fear and to Reason respectively is much
less than that due to Indolence, and less also than that due to
Deference or to Sympathy.
In a large proportion of the cases arising in private life the motive of
Fear cannot be invoked at all, because there is no power of inflicting
harm; and Reason just as little, because the persons who habitually
apply ratiocinative processes to their actions are after all few. It may
be said that conscious thought is not ordinarily applied to action
because Habit supplies its place, and Habit, enabling and disposing us
to do without consideration the acts which otherwise would need to be
considered, is in fact fossil reason. That is largely so, but Habit is
still more often the permanent and unchanging expression of Indolence.
Nothing becomes a habit so quickly as does the acquiescence due to
Indolence, nor does any tendency strike its roots so deep. And though it
is true as regards public or civic matters that physical force is always
at hand in the background, we must also recognize that the background is
not in fact usually visible to the majority of those who act according
to the laws which they obey. They do not necessarily, nor even
generally, think of the penalties of the law. They defer to it from
respect and because other people defer; they are glad that it is there
to save them and other people from trouble. This attitude is not
confined to civilized States, but has existed always, even in unsettled
societies, where the law might not be able to prevail but for the aid of
private citizens.
Of the three springs of Obedience which have been represented as on the
whole the stronger, Indolence disguises itself under Deference and
Deference is intensified by Sympathy; that is to say, the tendency of
men to let others take decisions for them which they might take for
themselves becomes much stronger and more constant when they have any
ground for believing others to possess some sort of superiority, while
the disposition to admit superiority is incomparably more active where a
number of other persons are perceived to be also admitting it. A society
like that in which modern men live in England or America is apt to
suppose that the admission of superiority mortifies a man’s pride, but
this is so far from being generally true that the attitude of submission
is to most men rather pleasurable than the reverse. So Protestants have
been apt to assume that the natural and normal attitude of man in
religious matters is independence—a wish to seek out truth for himself,
a sense of the duty of consulting his own conscience; whereas the
opposite is the fact, and those religious systems take the greatest hold
upon man which leave least to individual choice and inculcate, not
merely humility towards the Unseen Powers, but the duty of implicitly
accepting definite traditions or of revering and following visible
ecclesiastical guides.
Some philosophers have talked of Will as the distinctive note of Man—and
in so far as the exercise of Will implies the conscious exertion of
rational choice it may be admitted to be characteristic of him alone.
But in mere tenacity of purpose and persistence in a particular course
other animals run him hard. A rogue elephant or a bucking mustang can
show as much persistence, sometimes mingled with a craft which seeks to
throw the opponent off his guard, and bides its time till the most
favourable moment for resistance arrives. In most men the want of
individual Will—that is to say, the proneness to comply with or follow
the will of another—is the specially conspicuous phenomenon. It is for
this reason that a single strenuous and unwearying will sometimes
becomes so tremendous a power. There are in the world comparatively few
such wills, and when one appears, united to high intellectual gifts, it
prevails whichever way it turns, because the weaker bow to it and gather
round it for shelter, and, in rallying to it, increase its propulsive or
destructive power. It becomes almost a hypnotizing force. One perceives
this most strikingly among the weaker races of the world. They are not
necessarily the less intelligent races. In India, for instance, an
average European finds many Hindus fully his equals in intelligence, in
subtlety, and in power of speech; but he feels his own volitions and his
whole personality to be so much stronger than that of the great bulk of
the native population (excluding a very few races) that men seem to him
no more than stalks of corn whom he can break through and tread down in
his onward march. This is how India was conquered and is now held by the
English. Superior arms, superior discipline, stronger physique, are all
secondary causes. There are other races far less cultivated, far less
subtle and ingenious, than the Hindus, with whom Europeans have found it
harder to deal, because the tenacity of purpose and the pride of the
individual were greater. This is the case with the North-American
Indians, who fought so fiercely for their lands that it has been
estimated that in the long conflict they maintained they have probably
killed more white men than they have lost at the hands of the whites.
Yet they were far inferior in weapons and in military skill; and they
had no religious motives to stimulate their valour.