DUTIES OF JUSTICE--DUTIES TOWARDS HUMAN LIFE.
SUMMARY.
=Division of the duties of justice.=--Four kinds of duties: 1, towards
the life of others; 2, towards the liberty of others; 3, towards the
honor of others; 4, towards the property of others.
=Duties towards human life.=--Avoid homicide, acts of violence, and
mutilation. Pascal and the _Provinciales_.
=The right of self-defense.=--Right to oppose force to force. Limits of
this right.
=Problems.=--Four very grave problems are bound up in the question of
self-defense: 1, the penalty of death; 2, political assassination; 3,
the duel; 4, war.
=The penalty of death.=--The penalty of death is the right of
self-defense exercised by society: it is just so far as it is
efficacious.
=Political assassination.=--Murder is always a crime, under whatever
pretext it may conceal itself.
=The duel.=--The duel is at the same time a _homicide_ and a _suicide_;
it is falsely considered justice, since it appeals to chance and
skill.
=War.=--War is the only mode of self-defense existing among nations; it
is desirable for the sake of humanity that it may some day disappear;
but humanity cannot now exact this sacrifice of the country.
=23. Division of social duties.=--According to the foregoing distinctions,
we will first divide duties into _duties of justice_ and _duties of
charity_.
Let us begin by expounding the duties of justice.
These duties may be summed up in a general manner in _the respect for the
person of others_, and for all that is necessary for the preservation and
development of that person. Hence four kinds of duties:
1. Towards the life of other men.
2. Towards their liberty.
3. Towards their honor.
4. Towards their property.
Besides these duties, purely negative, which consist only in doing others
no harm, there are also the duties of justice, which may be called
_positive_; and which consist not only in not injuring others, but also in
granting each what he has a right to. This is called _distributive_ or
_remunerative_ justice, and is the duty of all those who have others under
them, and who are commissioned to distribute rewards, titles, or
functions.
=24. Duties towards the life of men.=--We have seen above that
self-preservation is the duty of every one, and that one should not
attempt one's own life, nor mutilate one's self, nor injure one's health.
Now, all these obligations which we have towards ourselves, we have
equally towards others; for that which each owes to himself, he owes it to
his quality, as _man_, to his quality as a free and reasonable being, a
_moral person_. It is, as Kant says, humanity itself that each one must
respect in his own person; and it is also humanity which each must respect
in others. We should not do to others what we do not wish that they should
do to us, or what we should not wish to do to ourselves. Now, no one
wishes others to attempt his life; no one should wish to attempt it
himself. For the same reason he should not wish to attempt the life of
others.
These are such self-evident considerations that it is useless to insist on
them. Let us add that this duty rests, besides, on one of the most
powerful instincts of humanity, the instinct of sympathy for other men,
the horror of their sufferings, the horror of spilt blood. Those who are
wanting in this sentiment are like monsters in the midst of humanity.
One of the corollaries of this principle is to avoid the blows and wounds
which might, through imprudence and unexpectedly, cause death, and which,
besides, are in themselves to be condemned, inasmuch as they contribute,
if not towards destroying, at least towards mutilating, the person and
rendering it unfitted to fulfil its duties and functions. In a word, to
avoid scuffles, bodily quarrels, which are unworthy, moreover, from their
very brutality, of a reasonable being; all this is comprised in the duty
of avoiding homicide. All may be summed up in these words of the
Decalogue: "_Thou shalt not kill_."
Pascal, in his letter on homicide (xiv. _Provinciale_), expressed most
eloquently the duty concerning the respect for human life:
"Everybody knows, my fathers, that individuals are never permitted to
seek the death of any person, and that, even if a man should have
ruined us, maimed us, burnt our houses, killed our parents, and was
preparing to murder us, to rob us of our honor, that our seeking his
death would not be listened to in a court of justice. So that it was
necessary to establish public functionaries who seek it in the name of
the king, or rather in the name of God. Suppose, then, these public
functionaries should seek the death of him who has committed all these
crimes, how would they proceed? Would they plunge the dagger in his
breast at once? No; the life of man is too important; they would
proceed with more consideration; the law has not left it subject to
the decision of all sorts of people; but only to that of the judges,
whose integrity and sufficiency have been ascertained. And think you
that one alone is enough to condemn a man to death? No; there are at
least seven required; and among these seven there must not be any one
whom the criminal has in any way offended, for fear that his judgment
be affected, or corrupted by anger. In short, they can judge him only
upon the testimony of witnesses, and according to the other forms
prescribed to them; in consequence of which they can conscientiously
pronounce upon him only according to law, or judge worthy of death
only those whom the law condemns."
After having thus expounded the innumerable precautions which society has
taken, out of respect for human life, touching the persons of criminals,
Pascal continues as follows:
"Behold in what way, in the order of justice, the life of man is
disposed of; let us see now how _you_ dispose of it.[16] In your new
laws there is but one judge, and this judge is the offended party. He
is at the same time judge, accuser, and executioner. He seeks himself
the death of his enemy; he commands it, he executes him on the spot;
and, without respect for either the body or soul of his brother, he
kills and damns him for whom Christ died; and all this to avenge an
affront, or slander, or an insulting word, or other similar offences
for which a judge, although clothed with legal authority, would be
considered a criminal if he should condemn to death those who had
committed them, because the laws themselves are very far from
condemning them."
Finally, gathering into one word all the evils which homicide comprises,
Pascal ends by saying "homicide is the only crime which at the same time
destroys the State, the Church, nature, and piety."
=25. The right of self-defense.=--None of the foregoing principles would
present the shadow of a difficulty to any except those who are nearer the
brute than man, if it were not for an apparent exception to the rule,
which is the _case of legitimate self-defense_. To understand properly the
solution of this question, it is necessary to examine carefully the nature
of the relations which bind men to each other.
Every man is a _moral person_; that is to say, a free being, and for that
very reason inviolable in his dignity and in his rights. He is, as Kant
says, an _end to himself_, and should not be treated as a _means_. The
things of nature are to us but means to satisfy our wants; we may
therefore mutilate and destroy them, not as our whims may dictate, but as
our wants require. Thus can we cut the finest trees of a forest to make
fire of, or for furniture. We even claim a similar right over animals,
although it may, perhaps, not be so evident. But we have no such right
over man. We can neither mutilate nor destroy him for our use.
And, in fact, to destroy or mutilate through sheer force a member of
humanity, is to apply to him the law of compulsion, which is the law of
physical nature, and which without reserve governs all physical
phenomena: it is to make of man _a thing of nature_, to see in him the
body only, and ignore the soul.
The consequence of such conduct is evident: it is that whosoever employs
against another the law of compulsion means thereby that he does not
recognize between himself and other men any other law but that. Treating
them as if they were purely physical agents, he gives us thereby to
understand that he recognizes himself, and expects to be treated, as such;
he means to take advantage of his strength as long as he is the strongest,
but gives us to understand thereby that he is satisfied to submit to
strength if he is the weaker.
It is here that the _right of self-defense_ comes in. He who is violently
attacked, has the right to oppose to violence just as much strength as
there is employed against him. Otherwise, in allowing himself to be
knocked down by strength, he would consent to the abasement, to the
suppression of his own personality; he would in some respect be the
accomplice of the violence he is made to suffer. Some Christian sects,
straining this point, go so far as to condemn absolutely the right of
self-defense; they do not see that this would infallibly bring with it the
triumph of brute force, and the suppression of all justice. Such sects
may, to a certain extent, manage to exist in civilized societies; but the
principle is self-destructive, since not to resist violence is in some
respect to be its accomplice.
Yet, whilst admitting the right of self-defense, it is necessary to
recognize its limits. "This agent," says M. Renouvier, "whom the right of
self-defense treats as a brute, this being is a man, nevertheless, or has
been one, or may become such. Hence the doctrine of conscience is to admit
this right only when necessary, and not beyond what is necessary." (_Moral
Science_, Ch. LVI.) This is, to begin with, a natural consequence of the
duties towards one's self, since it is already a surrender of one's
dignity to be obliged to act in the capacity of a physical agent, and
renounce one's character of a moral person; it is also a duty towards
humanity in general, which is represented by every man, even the most
violent and the most uncultivated.
=26. Problems.=--The right of legitimate self-defense gives rise to a
certain number of problems relative to the law of homicide. M. Jules
Simon[17] reduces them to five: homicide in case of self-defense, penalty
of death, political assassination, duel, and war. In the first case it is
implied in what precedes, that legitimate self-defense may go so far as to
deprive another man of life; but only in case of absolute necessity.
There remain the four other cases, which are not all of the same order.
=27. The penalty of death.=--The penalty of death in these days has been
very much contested, and several States have tried to abolish it.[18]
The following arguments are brought to bear against it:
1. _The inviolability of human life._--The State, it is said, should not
give the example of what it proscribes and punishes. Now, it punishes
homicide; then it should not itself commit homicide.
2. The possible _mistakes_, which in all other cases can be corrected, but
which in this case alone are irreparable.
3. _Experience_, which, it is said, tells against it in certain countries
by proving that the number of crimes has not been increased by the
suppression of the penalty of death.
4. Finally, the _refinement of manners_, which can no longer bear the idea
of capital punishment.
No one of these arguments is wholly decisive.
1. The inviolability of human life is not an absolute thing, at least not
for those who admit the right of legitimate self-defense. We shall examine
this presently.
2. Judiciary mistakes are very rare, and will become more and more so, as
justice becomes more respectful towards the rights of the accused, and
through greater publicity, by the intervention of a jury, etc.
3. Experience is not so much of a test as it is said to be, and is often
made on too small a scale. The attempts at abolition have not been very
numerous. In Tuscany murders have always been very rare on account of the
gentleness of manners. In Switzerland, on the contrary, crime is on the
increase, and certain cantons have asked for a return to the death
penalty. Besides, it is a very difficult experiment to make. How could a
society as complicated as ours dare to trust its security to so hazardous
an experiment?
4. The refinement of manners may gradually bring about, thanks to the
institution of the jury, the diminution, perhaps some day the suppression,
of the penalty of death, without its being necessary for the State to lay
aside this powerful means of defense and intimidation.
The penalty of death, in fact, can be considered legitimate only in the
light of the right of self-defense. If society needs this penalty to
protect the life of its members, it may be said that it is authorized to
use it, on the same ground as each individual to whom we have conceded the
right to repel force by force, and to deprive of his own life one who
should threaten to take _his_ life.
But, it will be objected, the right of self-defense, when ending in
homicide, is justifiable only at the moment of the attack, and to ward off
a sudden aggression itself threatening murder; but the deed once committed
and the criminal in the hands of the law, there is no reason to fear a new
aggression from him, and his chances of escape from justice through
evasion are too few to justify the violation of a duty so absolute as the
respect for human life.
It may be answered that society, by the death penalty, not only defends
itself against the criminal himself, but against all those who might be
inclined to imitate him. The penalty of death is above all a precautionary
means of defense, that is to say, a means of intimidation. The future
criminal is warned beforehand of the risks he runs; he accepts voluntarily
the punishment he will incur. If society should catch him in the
act--_flagrante delicto_--it would certainly, in order to prevent the
crime, since it is the representative of all individuals, have the same
rights as the individual of defending himself. But the difficulty of
seizing upon the criminal at the moment of commission, can it be
considered a circumstance in favor of the criminal, and does society lose
its right, because, through the skill and precautions of assassins, it can
but very rarely, and scarcely ever, catch them in the act?
The right of society to defend itself by the death penalty does not seem
to us, then, to admit any doubt. The whole question is to know whether
such a means of defense is really necessary and efficacious. It is, as we
have said, a question of experience which it is very difficult to settle,
for the reason that we dare not make the experiment. All that can be said
is that, as a principle, every man fears death; it is the greatest of
fears. There is, therefore, reason to believe that it is the most powerful
of the means of intimidation. Besides, it is known that professional
criminals estimate with great accuracy offenses and crimes proportionably
to their penalties. Thus, those who steal know that they expose themselves
to such or such punishment, but they go no farther in order not to incur a
more severe punishment; for these the penalty of death is certainly a
great item in their plans, and it would be dangerous to relieve them of
this menace.
We do not mean to say that in future society may not reach a state of
organization strong and enlightened enough to be able to do without such
means; but in the present state of things we should consider the attempt
to abolish them dangerous for society.
=28. Of political assassination.=--Concerning this pretended right, so
shockingly promulgated in these days by savage factions, we cannot do
better than quote the words of M. Jules Simon in his book on _Duty_:
"Political assassination," he says, "is essentially worthy of
condemnation from whichever side one looks at it. It has the same
origin as the penalty of death, with this double difference that, in
the application of the penalty of death, it is the State that
pronounces the sentence conformably to the law, whilst in political
assassination it is the same man who makes the law, pronounces the
sentence, and executes it. Now, society, though badly constituted, and
the law, though bad, are nevertheless a guaranty, whilst there is none
at all against the caprice, passion or false judgment of a single
individual. Besides, the legitimacy of the penalty of death is
connected with the legitimacy of the power that pronounces it, and the
uniformity of the law. Let some tyrannical authority cause a man to be
shot at the corner of a street, without form of legal process, that
cannot be called penalty of death; it is called murder; and even when
the victim should have deserved his death, the government would not be
the less criminal for having executed him without trial. If these
principles are just, how can we admit the theory of political
assassination, which allows the destiny of all to depend upon the
conscience of a single individual. We reflect so little upon the
rights of men that there are those who will condemn the death penalty
and yet approve of political assassination. We judge so badly, that
under the Restoration a monument was erected to Georges Cadoudal, and
we hear every day the eulogy of Charlotte Corday. The guiltiness of
the victim does not legitimate the act of the murderer. It is both
unwise and criminal to furnish hatred with such excuses."
=29. The duel.=--Does the duel come under the head of legitimate
self-defense? No; whatever custom and prejudice may say in its favor.
1. We must first lay aside without discussion all duels bearing on
frivolous causes, and they are the largest in number.
2. In many other cases reparation may be obtained through the law, and
prejudice alone can prevent having recourse to it. If I am willing to have
recourse to law in a case of robbery, why should I not appeal to this same
law when my honor is attacked?
3. The duel is an absurd form of justice, because it puts the offender
and the one offended on the same level. It is not the guilty one that is
punished; it is the awkward one.
4. Social justice has degrees of penalty in proportion to the gravity of
the offense, and is applied only after a very severe examination. The aim
of the duel is to apply to very unequal offenses one and the same penalty,
death (Jules Simon, _Le Devoir_, IV.), or if there are any degrees, since
it does not always result in death, these degrees are the effect of
chance. Finally, if in a duel the parties agree to use skill enough to
hurt each other as little as possible, is it not as if they confessed to
the injustice and insanity of the proceeding?
5. The duel had its origin in superstition: in the _Combat of God_, in the
belief, namely, that God himself would arbitrate by means of the combat,
and give the victory to the innocent and strike the guilty.
6. The duel is a homicide or a suicide. It is, therefore, contrary to the
duty towards others and the duty towards ourselves. Finally, the duel is
contrary to the duty towards society, which forbids each to be his own
judge.
J. J. Rousseau, in the _Nouvelle Heloise_, has written on the duel and
suicide (see further on, Chapter xi.) a letter often quoted, of which we
will briefly give the principal passages.
1. One must distinguish between real honor and apparent honor:
What is there in common between the glory of killing a man and the
testimony of a righteous soul? What hold can the vain opinion of
others have upon true honor, the roots of which are in the depths of
the heart? What! the lies of a slanderer can destroy real virtues? Do
the insults of a drunkard prove that one deserves them? And can the
honor of a sensible man be at the mercy of the first ruffian he meets?
2. The use of force cannot be a title to virtue:
Will you tell me that one must show courage, and that courage suffices
to efface the shame and reproach of all other vices? In this case a
rogue would have but to fight a duel to cease to be a rogue; the words
of a liar would become true if maintained at the point of a sword; and
if you were charged with having killed a man, you would go and kill a
second one to prove that the charge is not true. Thus, virtue, vice,
honor, infamy, truth, falsehood, all derive their being from the event
of a fight; a fencing-hall becomes the seat of all justice; might
makes right.
3. Antiquity, so rich in heroes and great characters, knew nothing of the
duel. There may then exist societies civilized and refined where a man may
defend his honor without having to resort to the duel. This is a
remarkably striking argument:[19]
Did ever the valiant men of antiquity think of avenging their personal
insults by single combats? Did Caesar send a challenge to Cato, or
Pompey to Caesar? "Other times, other manners," you'll say, I know, but
true honor does not vary; it does not depend on times or places or
prejudices; it can neither pass away nor be born again; it has its
eternal source in the heart of the just man and in the unalterable
rule of his duties. If the most enlightened, the bravest, the most
virtuous nations of the earth knew nothing of the duel, I say that it
is not an institution of honor, but rather a frightful and barbarous
fashion worthy of its savage origin.
4. It is not true that a man of honor incurs contempt by refusing a duel:
The righteous man whose whole life is pure, who never gave any sign of
cowardice, will refuse to stain his hand by a homicide, and will be
only the more honored for it. Always ready to serve his country, to
protect the feeble, to fulfil the most dangerous duties, and defend in
all just and honest encounters, and at the price of his blood, what he
holds dear, he will reveal in all his transactions that resolute
firmness which always accompanies true courage. In the security of his
conscience he walks with head erect; he neither flies from nor seeks
his enemy; one can easily see that he fears less to die than to do
wrong, and that it is not danger he shuns, but crime.
=30. War.=--War is the most serious and the most solemn exception to the
law which forbids homicide. Not only does it permit homicide, but it
commands it. The means thereto are prepared in public; the art of
practicing them is a branch of education, and it is glorious to destroy as
many enemies as possible.
One cannot fail to see the sad side of war, and how contrary it is to the
ideal tendencies of modern society. It is still to be hoped that there
will come a time when nations will find a more rational and more humane
means of conciliating their differences. But there is no indication of
this good time as yet, nor even that it is near, and it is necessary to
guard against a false philanthropy, which would imperil the sacred rights
of patriotism.
The problem of war in itself belongs rather to the law of nations than to
morality properly so called. It will be in studying later the relations of
the nations between each other that we shall have to establish as a rule
that the right of self-defense exists for them as well as for the
individual. The only question in a moral point of view is to know whether
the individual, by the sole fact of the order of society, is released from
the duty imposed on him not to shed blood. Some religious sects in the
early times of Christianity, others in modern times in England and in
America (the Quakers), believe that the interdiction of homicide is an
absolute thing; they claim the right to be exempt from military duty. The
State, of course, never recognized the legitimacy of such a scruple, which
would prevent all social subordination and deprive the defense of the
country of all its strength. But neither does morality recognize such a
right. As a part of a society which is commissioned to defend us, and
which can do so only by using force, it is evident that each one should
share in the acts by which it undertakes to defend us. For how can
malefactors be prosecuted without employing force? The same may be asked
as to enemies from without. Now, as society defends every one equally, it
cannot make any exception in favor of such or such scruple. It can grant
exemptions, but cannot admit that each should exempt himself by the
scruples of his conscience.
Certainly it ought not to be maintained that any order given by society
releases the individual conscience from all consideration. But obedience
to the law is the foundation of social order, and co-operation in the
public defense is a duty of absolute necessity. Of course one assumes in
this view implicitly the legitimacy of war; but this question will be
treated later on by itself, and in accordance with the reasons belonging
to it.