LAWS AND PROMISES
§ 1. In the discussion of Justice the moral obligations of obedience to
Law and observance of Contract have been included, and have, indeed,
appeared to be the most definite part of the complex system of private
duties commonly included under that term. At the same time, as we have
seen, there are some laws, the violation of which does not interfere
with the rights of others, and therefore has not the characteristics of
an act of Injustice. While again, the duty of Fidelity to promises is
also commonly conceived as independent of any injury that might be done
to the promisee by breaking it: for (_e.g._) men ordinarily judge that
promises to the dead, though they are beyond the reach of injury, ought
to be kept: indeed, some would regard them as even more sacred than
promises made to the living. It seems therefore desirable to examine
the propositions ‘that Law ought to be obeyed’ and ‘that promises ought
to be kept,’ considered as independent principles.
To begin with the former: how are we to ascertain what the Law is
which, as is commonly thought, we are morally bound to obey, as such?
It is plain that we cannot here distinguish Legal from other rules by
considering the sanctions actually attached to them, as we had occasion
to do in a previous chapter.[231] For commands issued by rebels and
usurpers are held to have as such no general bindingness, though they
may be enforced by judicial penalties; it would be generally agreed
that so far as it is our duty to obey such commands this is solely in
order to avoid the greater evils which might result to ourselves and
others from our disobedience; and that the extent of such a duty must
be determined by considerations of expediency. Nor, again, can we say
that all commands even of a legitimate sovereign are to be regarded as
Laws in the sense in which the term must be taken in the proposition
that ‘laws ought to be obeyed’: since we all recognise that a rightful
sovereign may command his subjects to do what is wrong, and that it is
then their duty to disobey him. It seems therefore that for our present
purpose we must define Laws to be Rules of Conduct laid down by a
Rightful Authority, commanding within the limits of its authority.
There are therefore two questions to be settled, if the proposition
that laws ought to be obeyed is to furnish practical guidance: (1) how
we are to distinguish the Rightful Lawmaker--whether individual or
body, and (2) how we are to ascertain the limits of this lawmaker’s
authority. The questions should be distinguished; but, as we shall
see, they can only be partially separated. Beginning with the first
question, we may assume that the authority to make laws resides in
some living man or men. No doubt in some societies, at some stages of
their development, the whole or a part of the code of laws habitually
observed, or at least recognised as binding, has been believed to be
of divine or semi-divine institution; or perhaps from mere antiquity
to possess a sanctity superior to that of any living authority, so as
to be not legitimately alterable. But we hardly find this view in the
Common Sense of civilised Europe, upon which we are now reflecting: at
any rate in our societies there is not thought to be any portion of the
definite prescriptions of positive law which, in virtue of its origin,
is beyond the reach of alteration by any living authority.
Where then is this authority to be found?
In the answers commonly given to this question, the conflict between
the Ideal and the Traditional or Customary, which has perplexed us
in seeking the definition of Justice, meets us again in an even more
complicated form. For not only do some say that obedience is always due
to the traditionally legitimate authority in any country, while others
maintain that an authority constituted in accordance with certain
abstract principles is essentially legitimate, and that a nation has
a right to claim that such an authority shall be established, even at
the risk of civil strife and bloodshed: but often, too, the authority
actually established is not even traditionally legitimate. So that
we have to distinguish _three_ claims to authority, each of which
may come into conflict with either of the other two: (1) that of the
Government held to be ideally or abstractly right, and such as ought to
be established: (2) that of the Government _de jure_, according to the
constitutional traditions in any given country: and (3) that of the _de
facto_ Government.
§ 2. Let us begin by considering the Ideal. Here I do not propose to
consider all views as to the right constitution of supreme authority
which speculative thinkers have put forward; but only such as have
a _prima facie_ claim to express the Common Sense of mankind on the
subject. Of these the most important, and the most widely urged and
admitted, is the principle that the Sovereign in any community can
only be rightly constituted by the Consent of the Subjects. This, as
was noticed in the preceding chapter, is involved in the adoption of
Freedom as the ultimate end of political order: if no one originally
owes anything to another except non-interference, he clearly ought
only to be placed in the relation of Subject to Sovereign by his own
consent. And thus, in order to reconcile the original right of Freedom
with the actual duty of Law-observance, some supposition of a social
compact appears necessary; by means of which Obedience to Law becomes
merely a special application of the duty of keeping compacts.
In what way, then, are the terms of this fundamental compact to be
known? No one now maintains the old view that the transition from the
‘natural’ to the ‘political’ state actually took place by means of
an “original contract,” which conferred indelible legitimacy on some
particular form of social organisation. Shall we say, then, that a man
by remaining a member of a community enters into a ‘tacit undertaking’
to obey the laws and other commands imposed by the authority generally
recognised as lawful in that community? In this way however the Ideal
lapses into the Customary: and the most unlimited despotism, if
established and traditional, might claim to rest on free consent as
well as any other form of government: so that the principle of abstract
Freedom would lead to the justification of the most unqualified
concrete tyranny and servitude; and thus our theory would end by
riveting men’s chains under pretence of exalting their freedom. If
to avoid this result, we suppose that certain ‘Natural Rights’ are
inalienable--or tacitly reserved in the tacit compact--and that laws
are not strictly legitimate which deprive a man of these, we are again
met by the difficulty of deducing these inalienable rights from any
clear and generally accepted principles. For instance, as we have seen,
a widely accepted opinion is that all such rights may be summed up
in the notion of Freedom; but we have also seen that this principle
is ambiguous, and especially that the right of private property as
commonly recognised cannot be clearly deduced from it; and if so it
would certainly be most paradoxical to maintain that no government can
legitimately claim obedience for any commands except such as carry
out the principle of protecting from interference the Freedom of the
individuals governed. It has been thought that we can avoid this
difficulty by constituting the supreme organ of government so that any
law laid down by it will always be a law to which every person called
on to obey it will have consented personally or by his representatives:
and that a government so constituted, in which--to adopt Rousseau’s
phrase--every one “obeys himself alone,” will completely reconcile
freedom and order. But how is this result to be attained? Rousseau held
that it could be attained by pure direct democracy, each individual
subordinating his private will to the “general will” of the sovereign
people of which all are equally members. But this “general will” must
be practically the will of the majority: and it is paradoxical to
affirm that the freedom and natural rights of a dissentient minority
are effectively protected by establishing the condition that the
oppressors must exceed the oppressed in number. Again, if the principle
be absolute it ought to apply to all human beings alike: and if to
avoid this absurdity we exclude children, an arbitrary line has to be
drawn: and the exclusion of women, which even those who regard the
suffrage as a natural right are often disposed to maintain, seems
altogether indefensible. And to suppose--as some have done--that the
ideal of “obeying oneself alone” can be even approximately realised
by Representative Democracy, is even more patently absurd. For a
Representative assembly is normally chosen only by a part of the
nation, and each law is approved only by a part of the assembly: and it
would be ridiculous to say that a man has assented to a law passed by a
mere majority of an assembly against one member of which he has voted.
But, again, to lay down absolutely that the laws of any community ought
to express the will of the majority of its members seems incompatible
with the view so vigorously maintained by Socrates and his most
famous disciples, that laws ought to be made by people who understand
law-making. For though the majority of a representative assembly in a
particular country at a particular time may be more fit to make laws
for their country than any set of experts otherwise selected, it is
certainly not self-evident that this will be universally the case. Yet
surely the Socratic proposition (which is merely a special application
of the principle noticed in the latter part of the preceding chapter,
‘that function should be allotted to the fittest’) has as much claim
to be considered a primary intuition as the one that we have been
discussing. Indeed, the secular controversy between Aristocracy and
Democracy seems ultimately reducible to a conflict between those two
principles: a conflict of which it is impossible to find a solution, so
long as the argument remains in the _a priori_ region.
§ 3. However, to discuss this exhaustively would carry us too far
beyond the range of Ethics proper: but we may perhaps conclude that
it is impossible to elicit from Common Sense any clear and certain
intuitions as to the principles on which an ideal constitution should
be constructed. And there is an equal want of agreement as to the
intrinsic lawfulness of introducing such a constitution in violation
of the traditional and established order in any community. For some
think that a nation has a natural right to a government approximately
conformed to the ideal, and that this right may be maintained by force
in the last resort. Others, however, hold that, though the ideal polity
may rightly be put forward and commended, and every means used to
promote its realisation which the established government in any country
permits,--still, rebellion can never be justifiable for this purpose
alone. While others,--perhaps the majority,--would decide the question
on grounds of expediency, balancing the advantages of improvement
against the evils of disorder.
But further, as we saw, it is not so easy to say what the established
government is. For sometimes an authority declared by law to be
illegitimate issues ordinances and controls the administration of
justice. The question then arises, how far obedience is due to such
an authority. All are agreed that usurpation ought to be resisted;
but as to the right behaviour towards an established government which
has sprung from a successful usurpation, there is a great difference
of opinion. Some think that it should be regarded as legitimate, as
soon as it is firmly established: others that it ought to be obeyed
at once, but under protest, with the purpose of renewing the conflict
on a favourable opportunity: others think that this latter is the
right attitude at first, but that a usurping government, when firmly
established, loses its illegitimacy gradually, and that it becomes,
after a while, as criminal to rebel against it as it was originally to
establish it. And this last seems, on the whole, the view of Common
Sense; but the point at which the metamorphosis is thought to take
place can hardly be determined otherwise than by considerations of
expediency.
But again, it is only in the case of an absolute government, where
customary obedience is unconditionally due to one or more persons,
that the fundamental difficulties of ascertaining the legitimacy of
authority are of the simple kind just discussed. In a constitutionally
governed state numerous other moral disagreements arise. For, in such a
state, while it is of course held that the sovereign is morally bound
to conform to the constitution,[232] it is still disputed whether the
subjects’ obligation to obedience is properly conceived as conditional
upon this conformity: and whether they have the moral right (1) to
refuse obedience to an unconstitutional command; and (2) even to
inflict on the sovereign the penalty of rebellion for violating the
constitution. Again, in determining what the constitutional obligations
really are we find much perplexity and disagreement, not merely as to
the exact ascertainment of the relevant historical facts but as to the
principles on which these facts ought to be treated. For the various
limitations of sovereign authority comprised in the constitution have
often been originally concessions extorted by fear from a sovereign
previously absolute; and it is doubted how far such concessions are
morally binding on the sovereign from whom they were wrested, and
still more how far they are binding on succeeding sovereigns. Or,
_vice versâ_, a people may have allowed liberties once exercised to
fall into disuse; and it is doubted whether it retains the right of
reclaiming them. And, generally, when a constitutional rule has to be
elicited from a comparison of precedents, it is open to dispute whether
a particular act of either party should be regarded as a constitutive
precedent or as an illegitimate encroachment. And hence we find that,
in constitutional countries, men’s view of what their constitution
traditionally is has often been greatly influenced by their view of
what it ideally ought to be: in fact, the two questions have rarely
been kept quite distinct.
§ 4. But even in cases where we can ascertain clearly to what authority
obedience is properly due, further difficulties are liable to arise
when we attempt to define the limits of such obedience. For in modern
society, as we have seen, all admit that any authority ought to be
disobeyed which commands immoral acts; but this is one of those
tautological propositions, so common in popular morality, which convey
no real information; the question is, what acts there are which do
not cease to be immoral when they have been commanded by a rightful
authority. There seems to be no clear principle upon which these
can be determined. It has sometimes been said that the Law cannot
override definite duties; but the obligation of fidelity to contract
is peculiarly definite, and yet we do not consider it right to fulfil
a contract of which a law, passed subsequently to the making of the
contract, has forbidden the execution. And, in fact, we do not find
any practical agreement on this question, among persons who would not
consciously accept the utilitarian method of deciding it by a balance
of conflicting expediences. For some would say that the duties of
the domestic relations must yield to the duty of law-observance, and
that (_e.g._) a son ought not to aid a parent actively or passively
in escaping the punishment of crime: while others would consider this
rule too inhuman to be laid down, and others would draw the line
between assistance and connivance. And similarly, when a rightly
constituted government commands acts unjust and oppressive to others;
Common Sense recoils from saying either that all such commands ought
to be obeyed or that all ought to be disobeyed; but--apart from
utilitarian considerations--I can find no clear accepted principle for
distinguishing those unjust commands of a legitimate government which
ought to be obeyed from those which ought not to be obeyed. Again, some
jurists hold that we are not strictly bound to obey laws, when they
command what is not otherwise a duty, or forbid what is not otherwise
a sin; on the ground that in the case of duties prescribed only by
positive laws, the alternatives of obeying or submitting to the penalty
are morally open to us.[233] Others, however, think this principle too
lax; and certainly if a widespread preference of penalty to obedience
were shown in the case of any particular law, the legislation in
question would be thought to have failed. Nor, on the other hand, does
there seem to be any agreement as to whether one is bound to submit to
unjust penalties.
Since, then, on all these points there is found to be so much
difference of opinion, it seems idle to maintain that there is any
clear and precise axiom or first principle of Order, intuitively seen
to be true by the common reason and conscience of mankind. There is, no
doubt, a vague general habit of obedience to laws as such (even if bad
laws), which may fairly claim the universal _consensus_ of civilised
society: but when we try to state any explicit principle corresponding
to this general habit, the _consensus_ seems to abandon us, and we are
inevitably drawn into controversies which seem to admit of no solution
except that offered by the utilitarian method.[234]
§ 5. We have next to treat of Good Faith, or Fidelity to Promises;
which it is natural to consider in this place, because, as has been
seen, the Duty of Law-observance has by some thinkers been based upon
a prior duty of fulfilling a contract. The Social Contract however, as
above examined, seems at best merely a convenient fiction, a logical
artifice, by which the mutual jural relations of the members of a
civilised community may be neatly expressed: and in stating the ethical
principles of Common Sense, such a fiction would seem to be out of
place. It must, however, be allowed that there has frequently been a
close historical connection between the Duty of Law-observance and
the duty of Good Faith. In the first place, a considerable amount of
Constitutional Law at least, in certain ages and countries, has been
established or confirmed by compacts expressly made between different
sections of the community; who agree that for the future government
shall be carried on according to certain rules. The duty of observing
these rules thus presents itself as a Duty of Fidelity to compact. Yet
more is this the case, when the question is one of imposing not a law,
but a law-giver; whose authority is strengthened by the exaction of
an oath of allegiance from his subjects generally or a representative
portion of them. Still, even in such cases, it can only be by a
palpable fiction that the mass of the citizens can be regarded as bound
by an engagement which only a few of them have actually taken.
We may begin our examination of the duty of Keeping Promises by
noticing that some moralists have classified or even identified it
with Veracity. From one point of view there certainly seems to be an
analogy between the two; as we fulfil the obligations of Veracity and
Good Faith alike by effecting a correspondence between words and
facts--in the one case by making fact correspond with statement, and
in the other by making statement correspond with fact. But the analogy
is obviously superficial and imperfect; for we are not bound to make
our actions correspond with our assertions generally, but only with our
promises. If I merely assert my intention of abstaining from alcohol
for a year, and then after a week take some, I am (at worst) ridiculed
as inconsistent: but if I have pledged myself to abstain, I am blamed
as untrustworthy. Thus the essential element of the Duty of Good Faith
seems to be not conformity to my own statement, but to expectations
that I have intentionally raised in others.
On this view, however, the question arises whether, when a promise
has been understood in a sense not intended by the promiser, he is
bound to satisfy expectations which he did not voluntarily create. It
is, I think, clear to Common Sense that he is so bound in some cases,
if the expectation was natural and such as most men would form under
the circumstances: but this would seem to be one of the more or less
indefinite duties of Justice, and not properly of Good Faith, as there
has not been, strictly speaking, any promise at all. The normal effect
of language is to convey the speaker’s meaning to the person addressed
(here the promiser’s to the promisee), and we always suppose this to
have taken place when we speak of a promise. If through any accident
this normal effect is missed, we may say that there is no promise, or
not a perfect promise.
The moral obligation, then, of a promise is perfectly constituted when
it is understood by both parties in the same sense. And by the term
‘promise’ we include not words only, but all signs and even tacit
understandings not expressly signified in any way, if such clearly form
a part of the engagement. The promiser is bound to perform what both he
and the promisee understood to be undertaken.
§ 6. Is, then, this obligation intuitively seen to be independent and
certain?
It is often said to be so: and perhaps we may say that it seems so to
unreflective common sense. But reflection seems at least to disclose a
considerable number of qualifications of the principle; some clear and
precise, while others are more or less indefinite.
In the first place, thoughtful persons would commonly admit that
the obligation of a promise is relative to the promisee, and may be
annulled by him. And therefore if the promisee be dead, or otherwise
inaccessible and incapable of granting release, there is constituted an
exceptional case, of which the solution presents some difficulty.[235]
Secondly, a promise to do an immoral act is held not to be binding,
because the prior obligation not to do the act is paramount; just
as in law a contract to do what a man is not legally free to do, is
invalid: otherwise one could evade any moral obligation by promising
not to fulfil it, which is clearly absurd.[236] And the same principle
is of course applicable to immoral omissions or forbearances to act:
here however, a certain difficulty arises from the necessity of
distinguishing between different kinds or degrees of obligatoriness
in duties; since it is clear that a promise may sometimes make it
obligatory to abstain from doing what it would otherwise have been a
duty to do. Thus it becomes my duty not to give money to a meritorious
hospital if I have promised all I can spare to an undeserving friend;
though apart from the promise it might have been my duty to prefer the
hospital to the friend. We have, however, already seen the difficulty
of defining the limits of strict duty in many cases: thus (_e.g._)
it might be doubted how far the promise of aid to a friend ought to
override the duty of giving one’s children a good education. The
extent, therefore, to which the obligation of a promise overrides prior
obligations becomes practically somewhat obscure.
§ 7. Further qualifications of the duty of fidelity to promises, the
consideration of which is involved in more difficulty and dispute,
are suggested when we examine more closely the conditions under which
promises are made, and the consequences of executing them. In the first
place, it is much disputed how far promises obtained by ‘fraud or
force’ are binding. As regards fraud, if the promise was understood
to be conditional on the truth of a statement which is found to be
false, it is of course not binding, according to the principle I
originally laid down. But a promise may be made in consequence of such
a fraudulent statement, and yet made quite unconditionally. Even so,
if it were clearly understood that it would not have been made but
for the false statement,[237] probably most persons would regard it
as not binding. But the false statement may be only one consideration
among others, and it may be of any degree of weight; and it seems
doubtful whether we should feel justified in breaking a promise,
because a single fraudulent statement had been a part of the inducement
to make it: still more if there has been no explicit assertion, but
only a suggestion of what is false: or no falsehood at all, stated or
suggested, but only a concealment of material circumstances. We may
observe that certain kinds of concealment are treated as legitimate
by our law: in most contracts of sale, for example, the law adopts
the principle of ‘caveat emptor,’ and does not refuse to enforce the
contract because the seller did not disclose defects in the article
sold, unless by some words or acts he produced the belief that it was
free from such defects. Still, this does not settle the moral question
how far a promise is binding if any material concealment is shown to
have been used to obtain it. We have also to consider the case in which
an erroneous impression has not been wilfully produced, but was either
shared by the promisee or produced in some way unintentionally. Perhaps
in this last case most would say that the bindingness of the promise
is not affected, unless it was expressly conditional. But on all these
points Common Sense seems doubtful: and somewhat similar difficulties
present themselves when we endeavour to define the obligation of
promises partly obtained by some degree of illegal violence and
intimidation.
§ 8. But, secondly, even if a promise has been made quite freely and
fairly, circumstances may alter so much before the time comes to fulfil
it, that the effects of keeping it may be quite other than those which
were foreseen when it was made. In such a case probably all would
agree that the promisee ought to release the promiser. But if he
declines to do this, it seems difficult to decide how far the latter
is bound. Some would say that he is in all cases: while others would
consider that a considerable alteration of circumstances removed the
obligation--perhaps adding that all engagements must be understood to
be taken subject to a general understanding that they are only binding
if material circumstances remain substantially the same. But such a
principle very much impairs the theoretical definiteness of the duty.
This difficulty assumes a new aspect when we consider the case already
noticed, of promises made to those who are now dead or temporarily out
of the reach of communications. For then there is no means of obtaining
release from the promise, while at the same time its performance may be
really opposed to the wishes--or what would have been the wishes--of
both parties. The difficulty is sometimes concealed by saying that
it is our duty to carry out the ‘intention’ of the promise. For as
so used the word Intention is, in common parlance, ambiguous: it
may either mean the signification which the promisee attached to
the terms employed, as distinct from any other signification which
the common usage of words might admit: or it may include ulterior
consequences of the performance of the promise, which he had in view
in exacting it. Now we do not commonly think that the promiser is
concerned with the latter. He certainly has not pledged himself to
aim generally at the end which the promisee has in view, but only so
far as some particular means are concerned: and if he considers these
means not conducive to the end, he is not thereby absolved from his
promise, under ordinary circumstances. But in the case supposed, when
circumstances have materially changed, and the promise does not admit
of revision, probably most persons would say that we ought to take into
consideration the ulterior wishes of the promisee, and carry out what
we sincerely think _would_ have been his intention. But the obligation
thus becomes very vague: since it is difficult to tell from a man’s
wishes under one set of circumstances what he would have desired under
circumstances varying from these in a complex manner: and practically
this view of the obligation of a promise generally leads to great
divergence of opinion. Hence it is not surprising that some hold that
even in such a case the obligation ought to be interpreted strictly:
while others go to the other extreme, and maintain that it ceases
altogether.
But again, it was said that a promise cannot abrogate a prior
obligation; and, as a particular application of this rule, it would be
generally agreed that no promise can make it right to inflict harm on
any one. On further consideration, however, it appears doubtful how
far the persons between whom the promise passed are included in the
scope of this restriction. For, first, it does not seem to be commonly
held that a man is as strictly bound not to injure himself as he is to
avoid harming others; and so it is scarcely thought that a promise is
not binding because it was a foolish one, and will entail an amount of
pain or burden on the promiser out of proportion to the good done to
the promisee. Still, if we take an extreme case, where the sacrifice
is very disproportionate to the gain, many conscientious persons would
think that the promise ought rather to be broken than kept. And,
secondly, a different question arises when we consider the possibility
of injuring the promisee by fulfilling the promise. For when it is said
to be wrong to do harm to any one, we do not commonly mean only what he
thinks harm, but what really is so, though he may think it a benefit;
for it seems clearly a crime for me to give any one what I know to be
poison, even though he may be stubbornly convinced that it is wholesome
food. But now suppose that I have promised _A_ to do something, which,
before I fulfil the promise, I see reason to regard as likely to injure
him. The circumstances may be precisely the same, and only my view of
them have changed. If _A_ takes a different view and calls on me to
fulfil the promise, is it right to obey him? Surely no one would say
this in an extreme case, such as that of the poison. But if the rule
does not hold for an extreme case, where can we draw the line? at what
point ought I to give up my judgment to _A_, unless my own conviction
is weakened? Common Sense seems to give no clear answer.
§ 9. I have laid down that a promise is binding in so far as it
is understood on both sides similarly: and such an understanding
is ordinarily attained with sufficient clearness, as far as the
apprehension of express words or signs is concerned. Still, even here
obscurity and misapprehension sometimes occur; and in the case of
the tacit understandings with which promises are often complicated, a
lack of definite agreement is not improbable. It becomes, therefore,
of practical importance to decide the question previously raised: What
duty rests on the promiser of satisfying expectations which he did not
intend to create? I called this a duty not so much of Good Faith as of
Justice, which prescribes the fulfilment of normal expectations. How
then shall we determine what these are? The method by which we commonly
ascertain them seems to be the following. We form the conception of
an average or normal man, and consider what expectations he would
form under the circumstances, inferring this from the beliefs and
expectations which men generally entertain under similar circumstances.
We refer, therefore, to the customary use of language, and customary
tacit understandings current among persons in the particular relations
in which promiser and promisee stand. Such customary interpretations
and understandings are of course not obligatory upon persons entering
into an engagement: but they constitute a standard which we think
we may presume to be known to all men, and to be accepted by them,
except in so for as it is explicitly rejected. If one of the parties
to an engagement has deviated from this common standard without giving
express notice, we think it right that he should suffer any loss that
may result from the misunderstanding. This criterion then is generally
applicable: but if custom is ambiguous or shifting it cannot be
applied; and then the just claims of the parties become a problem, the
solution of which is very difficult, if not strictly indeterminate.
So far we have supposed that the promiser can choose his own words, and
that if the promisee finds them ambiguous he can get them modified,
or (what comes to the same thing) explained, by the promiser. But we
have now to observe that in the case of promises made to the community,
as a condition of obtaining some office or emolument, a certain
unalterable form of words has to be used if the promise is made at
all. Here the difficulties of moral interpretation are much increased.
It may be said, indeed, that the promise ought to be interpreted in
the sense in which its terms are understood by the community: and, no
doubt, if their usage is quite uniform and unambiguous, this rule of
interpretation is sufficiently obvious and simple. But since words are
often used in different ways by different members of the same society,
and especially with different degrees of strictness and laxity, it
often happens that a promise to the community cannot strictly be said
to be understood in any one sense: the question therefore arises,
whether the promiser is bound to keep it in the sense in which it will
be most commonly interpreted, or whether he may select any of its
possible meanings. And if the formula is one of some antiquity, it is
further questioned, whether it ought to be interpreted in the sense
which its words would now generally bear, or in that which they bore
when it was drawn up; or, if they were then ambiguous, in the sense
which appears to have been attached to them by the government that
imposed the promise. On all these points it is difficult to elicit any
clear view from Common Sense. And the difficulty is increased by the
fact that there are usually strong inducements to make these formal
engagements, which cause even tolerably conscientious persons to
take them in a strained and unnatural sense. When this has been done
continually by many persons, a new general understanding grows up as to
the meaning of the engagements: sometimes they come to be regarded as
‘mere forms,’ or, if they do not reach this point of degradation, they
are at least understood in a sense differing indefinitely from their
original one. The question then arises, how far this process of gradual
illegitimate relaxation or perversion can modify the moral obligation
of the promise for a thoroughly conscientious person. It seems clear
that when the process is complete, we are right in adopting the new
understanding as far as Good Faith is concerned, even if it palpably
conflicts with the natural meaning of language; although it is always
desirable in such cases that the form of the promise should be changed
to correspond with the changed substance. But when, as is ordinarily
the case, the process is incomplete, since a portion of the community
understands the engagement in the original strict sense, the obligation
becomes difficult to determine, and the judgments of conscientious
persons respecting it become divergent and perplexed.
To sum up the results of the discussion: it appears that a clear
_consensus_ can only be claimed for the principle that a promise,
express or tacit, is binding, if a number of conditions are fulfilled:
viz. if the promiser has a clear belief as to the sense in which it was
understood by the promisee, and if the latter is still in a position
to grant release from it, but unwilling to do so, if it was not
obtained by force or fraud, if it does not conflict with definite prior
obligations, if we do not believe that its fulfilment will be harmful
to the promisee, or will inflict a disproportionate sacrifice on the
promiser, and if circumstances have not materially changed since it was
made. If any of these conditions fails, the _consensus_ seems to become
evanescent, and the common moral perceptions of thoughtful persons fall
into obscurity and disagreement.
FOOTNOTES:
[231] Cf. _ante_, Book ii. chap. v. § 2.
[232] It is perhaps hardly necessary that I should here notice the
Hobbist doctrine, revived in a modified form by Austin, that “the
power of the sovereign is incapable of [legal] limitation.” For no
one now maintains pure Hobbism: and Austin is as far as possible from
meaning that there cannot be an express or tacit understanding between
Sovereign and Subjects, the violation of which by the former may make
it morally right for the latter to rebel. In fact, as used by him,
Hobbes’ doctrine reduces itself to the rather unimportant proposition
that a sovereign will not be punished for unconstitutional conduct
through the agency of his own law-courts, so long as he remains
sovereign. I may take this opportunity of observing that Austin’s
definition of Law is manifestly unsuited for our present purpose: since
a law, in his view, is not a command that ought to be obeyed, but a
command for the violation of which we may expect a particular kind of
punishment.
[233] Cf. Blackstone, _Introduction_, § 2. “In relation to those laws
which enjoin only positive duties, and forbid only such things as are
not _mala in se_, but _mala prohibita_ merely, without any intermixture
of moral guilt, annexing a penalty to non-compliance, here I apprehend
conscience is no further concerned, than by directing a submission to
the penalty in case of our breach of those laws ... the alternative is
offered to every man, ‘either abstain from this or submit to such a
penalty.’”
[234] Into the ethical difficulties peculiar to International Law, I
have not thought it worth while to enter.
[235] Vows to God constitute another exception: and it is thought by
many that if these are binding, there must be some way in which God
can be understood to grant release from them. But this it is beyond my
province to discuss.
[236] The case is somewhat different when the act has become immoral
after the promise was made: still, here also, the prior duty of
abstaining from it would be universally held to prevail.
[237] What is here said of a ‘statement’ may be extended to any mode of
producing a false impression.