Justice, as equity, fairness, impartiality, honesty, carries the

recognition of the whole over into the question of right distribution

and apportionment among its parts. The equitable judge or administrator

is the one who makes no unjustifiable distinctions among those dealt

with. A fair price is one which recognizes the rights of both buyer and

seller. An honest man is the one who, with respect to whatever he has to

distribute to others and to receive from them, is desirous of giving and

taking just what belongs to each party concerned. The fair-minded man is

not bribed by pleasure into giving undue importance to some element of

good nor coerced by fear of pain into ignoring some other. He

_distributes_ his attention, regard, and attachment according to the

reasonable or objective claims of each factor.

=Justice and Sympathy or Love.=--The most significant questions

regarding justice are as to its connection with love and with

condemnation and punishment. It is a common notion that justice is harsh

or hard in its workings and that it requires to be supplemented, if not

replaced, by mercy. Taken literally this would mean that justice is not

just in its workings. The truth contained is that what is frequently

regarded as justice is not justice, but an imperfect substitute for it.

When a legal type of morality is current, justice is regarded as the

working of some fixed and abstract law; it is the law as law which is to

be reverenced; it is law as law whose majesty is to be vindicated. It is

forgotten that the nobility and dignity of law are due to the place of

law in securing the order involved in the realization of human

happiness. Then the law instead of being a servant of the good is put

arbitrarily above it, as if man was made for law, not law for man. The

result is inevitably harshness; indispensable factors of happiness are

ruthlessly slighted, or ruled out; the loveliness and grace of behavior

responding freely and flexibly to the requirements of unique situations

are stiffened into uniformity. The formula _summum jus summa injuria_

expresses the outcome when abstract law is insisted upon without

reference to the needs of concrete cases. Under such conditions, there

arises a demand for tempering the sternness of justice with mercy, and

supplementing the severity of law with grace. This demand means that the

neglected human values shall be restored into the idea of what is just.

="Social Justice."=--Our own time has seen a generous quickening of the

idea of social justice due to the growth of love, or philanthropy, as a

working social motive. In the older scheme of morals, justice was

supposed to meet all the necessary requirements of virtue; charity was

doing good in ways not obligatory or strictly exacted. Hence it was a

source of peculiar merit in the doer, a means of storing up a surplus of

virtue to offset vice. But a more generous sense of inherent social

relationships binding the aims of all into one comprehensive good, which

is the result of increase of human intercourse, democratic institutions,

and biological science, has made men recognize that the greater part of

the sufferings and miseries which afford on the part of a few the

opportunity for charity (and hence superior merit), are really social

inequities, due to causes which may be remedied. That justice requires

radical improvement of these conditions displaces the notion that their

effects may be here and there palliated by the voluntary merit of

morally superior individuals. The change illustrates, on a wide scale,

the transformation of the conception of justice so that it joins hands

with love and sympathy. That human nature should have justice done it

under all circumstances is an infinitely complicated and difficult

requirement, and only a vision of the capacities and accomplishments of

human beings rooted in affection and sympathy can perceive and execute

justly.

=Transformation of Punitive Justice.=--The conception of punitive or

corrective justice is undergoing the same transformation. Aristotle

stated the rule of equity in the case of wrongdoing as an arithmetical

requital: the individual was to suffer according to his deed. Later,

through conjunction with the idea of a divine judge inflicting

retribution upon the sinner, this notion passed into the belief that

punishment is a form of justice restoring the balance of disturbed law

by inflicting suffering upon the one who has done wrong. The end and aim

of punishment was retribution, bringing back to the agent the evil

consequences of his own deed. That punishment is suffering, that it

inevitably involves pain to the guilty one, there can be no question;

this, whether the punishment is externally inflicted or is in the pangs

of conscience, and whether administered by parent, teacher, or civil

authority. But that suffering is for the sake of suffering, or that

suffering can in any way restore or affect the violated majesty of law,

is a different matter.

What erring human nature deserves or merits, it is just it should have.

But in the end, a moral agent deserves to _be_ a moral agent; and hence

deserves that punishments inflicted should be _corrective_, not merely

retributive. Every wrongdoer should have his due. But what is his due?

Can we measure it by his past alone; or is it due every one to regard

him as a man with a future as well? as having possibilities for good as

well as achievements in bad? Those who are responsible for the

infliction of punishment have, as well as those punished, to meet the

requirements of justice; and failure to employ the means and

instrumentalities of punishment in a way to lead, so far as possible,

the wrongdoer to reconsideration of conduct and re-formation of

disposition, cannot shelter itself under the plea that it vindicates

law. Such failure comes rather from thoughtless custom; from a lazy

unwillingness to find better means; from an admixture of pride with lack

of sympathy for others; from a desire to maintain things as they are

rather than go to the causes which generate criminals.

Sec. 4. WISDOM OR CONSCIENTIOUSNESS

As we have repeatedly noted, the heart of a voluntary act is its

intelligent or deliberate character. The individual's _intelligent_

concern for the good is implied in his sincerity, his faithfulness, and

his integrity. Of all the habits which constitute the character of an

individual, the habit of _judging_ moral situations is the most

important, for this is the key to the _direction_ and to the _remaking_

of all other habits. When an act is overt, it is irretrievably launched.

The agent has no more control. The moral life has its center in the

periods of suspended and postponed action, when the energy of the

individual is spent in recollection and foresight, in severe inquiry and

serious consideration of alternative aims. Only through reflection can

habits, however good in their origin and past exercise, be readapted to

the needs of the present; only through reflection can impulses, not yet

having found direction, be guided into the haven of a reasonable

happiness.

=Greek Emphasis upon Insight or Wisdom.=--It is not surprising that the

Greeks, the first seriously to inquire into the nature of behavior and

its end or good, should have eulogized _wisdom_, _insight_, as the

supreme virtue and the source of all the virtues. Now, indeed, it seems

paradoxical to say with Socrates that ignorance is the only vice; that

man is bad not voluntarily, from deliberate choice, but only from

ignorance. But this is largely because we discriminate between different

kinds of knowledge as the Greek did not, and as they had no occasion for

doing. We have a second-hand knowledge, a knowledge from books,

newspapers, etc., which was practically non-existent even in the best

days of Athens. Knowledge meant to them something more personal;

something like what we call a "realizing sense"; an intimate and

well-founded conviction. To us knowledge suggests information about what

others have found out, and hence is more remote in its meaning. Greek

knowledge was mostly directly connected with the affairs of their common

associated life. The very words for knowledge and art, understanding and

skill, were hardly separated. Knowledge was knowledge about the city,

its traditions, literature, history, customs, purposes, etc. Their

astronomy was connected with their civic religion; their geography with

their own topography; their mathematics with their civil and military

pursuits. Now we have immense bodies of impersonal knowledge, remote

from direct bearing upon affairs. Knowledge has accordingly subdivided

itself into theoretical or scientific and practical or moral. We use the

term knowledge usually only for the first kind; hence the Socratic

position seems gratuitously paradoxical. But under the titles of

_conscience_ and _conscientiousness_ we preserve the meaning which was

attached to the term knowledge. It is not paradoxical to say that

unconscientiousness is the fundamental vice, and genuine

conscientiousness is guarantee of all virtue.

=Conscientiousness.=--In this change from Greek wisdom to modern

conscientiousness there have been some loss and some gain. The loss lies

in a certain hardening of the idea of insight and deliberation, due to

the isolation of the moral good from the other goods of life. The good

man and the bad man have been endowed with the same faculty; and this

faculty has been treated as automatically delivering correct

conclusions. On the other hand, modern conscientiousness contains less

of the idea of intellectual accomplishment, and more of the idea of

interest in finding out the good in conduct. "Wisdom" tended to

emphasize achieved insight; knowledge which was proved, guaranteed, and

unchangeable. "Conscientiousness" tends rather to fix attention upon

that voluntary attitude which is interested in _discovery_.

This implies a pretty radical change in wisdom as virtue. In the older

sense it is an attainment; something possessed. In the modern, it

resides in the active desire and effort, in pursuit rather than in

possession. The _attainment_ of knowledge varies with original

intellectual endowment; with opportunity for leisurely reflection; with

all sorts of external conditions. Possession is a _class_ idea and tends

to mark off a moral aristocracy from a common herd. Since the activities

of the latter must be directed, on this assumption, by attained

knowledge, its practical outcome is the necessity of the regulation of

their conduct by the wisdom possessed by the superior class. When,

however, the morally important thing is the desire and effort to

discover the good, every one is on the same plane, in spite of

differences in intellectual endowment and in learning.

Moral knowing, as a fundamental or cardinal aspect of virtue, is

then the completeness of the interest in good exhibited in effort

to discover the good. Since knowing involves two factors, a direct

and an indirect, conscientiousness involves both _sensitiveness_ and

_reflectiveness_.[195]

=(1) Moral Sensitiveness.=--The individual who is not directly aware of

the presence of values needing to be perpetuated or achieved, in the

things and persons about him, is hard and callous or tough. A "tender"

conscience is one which is immediately responsive to the presentation of

good and evil. The modern counterpart to the Socratic doctrine that

ignorance is the root of vice, is that being morally "cold" or "dead,"

being indifferent to moral distinctions, is the most hopeless of all

conditions. One who cares, even if he cares in the wrong way, has at

least a spring that may be touched; the one who is just irresponsive

offers no leverage for correction or improvement.

=(2) Thoughtfulness.=--While the possession of such an immediate,

unreflective responsiveness to elements of good and bad must be the

mainstay of moral wisdom, the character which lies back of these

intuitive apprehensions must be thoughtful and serious-minded. There is

no individual who, however morally sensitive, can dispense with cool,

calm reflection, or whose intuitive judgments, if reliable, are not

largely the funded outcome of prior thinking. Every voluntary act is

intelligent: i.e., includes an idea of the end to be reached or the

consequences to accrue. Such ends are ideal in the sense that they are

present to thought, not to sense. But special ends, because they are

limited, are not what we mean by ideals. They are specific. With the

growth of the habit of reflection, agents become conscious that the

values of their particular ends are not circumscribed, but extend far

beyond the special case in question; so far indeed that their range of

influence cannot be foreseen or defined. A kindly act may not only have

the particular consequence of relieving present suffering, but may make

a difference in the entire life of its recipient, or may set in

radically different directions the interest and attention of the one who

performs it. These larger and remoter values in any moral act transcend

the end which was consciously present to its doer. The person has always

to aim at something definite, but as he becomes aware of this penumbra

or atmosphere of far-reaching ulterior values the meaning of his special

act is thereby deepened and widened. An act is outwardly temporary and

circumstantial, but its meaning is permanent and expansive. The act

passes away; but its significance abides in the increment of meaning

given to further growth. To live in the recognition of this deeper

meaning of acts is to live in the ideal, in the only sense in which it

is profitable for man to dwell in the ideal.

_Our "ideals," our types of excellence, are the various ways in which we

figure to ourselves the outreaching and ever-expanding values of our

concrete acts._ Every achievement of good deepens and quickens our sense

of the inexhaustible value contained in every right act. With

achievement, our conception of the possible goods of life increases,

and we find ourselves called to live upon a still deeper and more

thoughtful plane. An ideal is not some remote all-exhaustive goal, a

fixed _summum bonum_ with respect to which other things are only means.

It is not something to be placed in contrast to the direct, local, and

tangible quality of our actual situations, so that by contrast these

latter are lightly esteemed as insignificant. On the contrary, an ideal

is the conviction that each of these special situations carries with it

a final value, a meaning which in itself is unique and inexhaustible. To

set up "ideals" of perfection which are other than the serious

recognition of the possibilities of development resident in each

concrete situation, is in the end to pay ourselves with

sentimentalities, if not with words, and meanwhile it is to direct

thought and energy away from the situations which need and which welcome

the perfecting care of attention and affection.

=Thoughtfulness and Progress.=--This sense of wider values than those

definitely apprehended or definitely attained is a constant warning to

the individual not to be content with an accomplishment.

Conscientiousness takes more and more the form of interest in

improvement, in progress. Conscientiousness as sensitiveness may rest

upon the plane of already secured satisfactions, upon discriminating

with accuracy their quality and degree. As thoughtfulness, it will

always be on the lookout for the better. The good man not only measures

his acts by a standard, but he is concerned to revise his standard. His

sense of the ideal, of the undefinable because ever-expanding value of

special deeds, forbids his resting satisfied with any formulated

standard; for the very formulation gives the standard a technical

quality, while the good can be maintained only in enlarging excellence.

The highest form of conscientiousness is interest in constant progress.

=Love and Courage Required for Thoughtfulness.=--We may close this

chapter by repeating what we have already noted, that genuine moral

knowledge involves the affections and the resolute will as well as the

intelligence. We cannot know the varied elements of value in the lives

of others and in the possibilities of our own, save as our affections

are strong. Every narrowing of love, every encroachment of egoism, means

just so much blindness to the good. The man who pleads "good motives" as

excuse for acts which injure others is always one whose absorption in

himself has wrought harm to his powers of perception. Every widening of

contact with others, every deepening of the level of sympathetic

acquaintance, magnifies in so much vision of the good. Finally, the

chief ally of moral thoughtfulness is the resolute courage of

willingness to face the evil for the sake of the good. Shrinking from

apprehension of the evil to others consequent upon our behavior, because

such realization would demand painful effort to change our own plans and

habits, maintains habitual dimness and narrowness of moral vision.

LITERATURE

Upon the principle of virtue in general, see Plato, _Republic_, 427-443;

Aristotle, _Ethics_, Books II. and IV.; Kant, _Theory of Ethics_

(Abbott's trans.), pp. 164-182, 305, 316-322; Green, _Prolegomena_, pp.

256-314 (and for conscientiousness, 323-337); Paulsen, _System of

Ethics_, pp. 475-482; Alexander, _Moral Order and Progress_, pp.

242-253; Ladd, _Philosophy of Conduct_, chs. x. and xiv.; Stephen,

_Science of Ethics_, ch. v.; Spencer, _Principles of Ethics_, Vol. II.,

pp. 3-34 and 263-276; Sidgwick, _Methods of Ethics_, pp. 2-5 and 9-10;

Rickaby, _Aquinas Ethicus_, Vol. I., pp. 155-195; Mezes, _Ethics_, chs.

ix. and xvi.

For natural ability and virtue: Hume, _Treatise_, Part II., Book III.,

and _Inquiry_, Appendix IV.; Bonar, _Intellectual Virtues_.

For discussions of special virtues: Aristotle, _Ethics_, Book III., and

Book VII., chs. i.-x.; for justice: Aristotle, _Ethics_, Book V.;

Rickaby, _Moral Philosophy_, pp. 102-108, and _Aquinas Ethicus_ (see

Index); Paulsen, _System of Ethics_, pp. 599-637; Mezes, _Ethics_, ch.

xiii.; Mill, _Utilitarianism_, ch. v.; Sidgwick, _Methods of Ethics_,

Book III., ch. v., and see Index; also criticism of Spencer in his

_Lectures on the Ethics of Green, Spencer and Martineau_, pp. 272-302;

Spencer, _Principles of Ethics_, Vol. II.; Stephen, _Science of Ethics_,

ch. v.

For benevolence, see Aristotle, _Ethics_, Books VII.-IX. (on

friendship); Rickaby, _Moral Philosophy_, pp. 237-244, and _Aquinas

Ethicus_ (see charity and almsgiving in Index); Paulsen, _System_, chs.

viii. and x. of Part III.; Mezes, _Ethics_, ch. xii.; Sidgwick,

_Methods of Ethics_, Book II., ch. iv.; Spencer, _Principles of Ethics_,

Vol. II.; see also the references under sympathy and altruism at end of

ch. xviii. Courage and temperance are discussed in chs. x. and xi. of

Mezes; in pp. 485-504 of Paulsen; pp. 327-336 of Sidgwick; ch. xi. of

Ladd's _Philosophy of Conduct_.

FOOTNOTES:

[184] This is, of course, the point made in ch. iv. on "_Customs or

Mores_," save that there the emphasis was upon the epoch of customary as

distinct from the reflective morals, while here it is upon the customary

factor in the present.

[185] This fact might be employed to reenforce our prior conclusion that

moral rules, classifications, etc., are not of final importance but are

of value in clarifying and judging individual acts and situations. Not

the rule, but the use which the person makes of the rule in approving

and disapproving himself and others, is the significant thing.

[186] Less is said on this point because this phase of the matter has

been covered in the discussion of self-denial in the previous chapter.

See pp. 364-68.

[187] Strict hedonism would tend to reduce all virtue to prudence--the

calculation of subtler and remoter consequences and the control of

present behavior by its outcome.

[188] Says Hazlitt, "The charm of criminal life, like that of savage

life, consists in liberty, in hardship, in danger, and in the contempt

of death: in one word, in _extraordinary excitement_" (Essay on

Bentham). But this is equally true in principle (though not in degree)

of every temptation to turn from the straight and narrow path. Virtue

seems dull and sober, uninteresting, in comparison with the increasing

excitation of some desire. There are as many forms of excitement as

there are individual men.

[189] There is something of the nature of gambling, of taking chances on

future results for the sake of present stimulation, in all unrestraint

or intemperate action. And the reflection of the specialist--that is,

the one whose reflection is not subjected to responsible tests in social

behavior--is a more or less exciting adventure--a "speculation."

[190] In the last words of Spinoza's _Ethics_, "No one delights in the

good because he curbs his appetites, but because we delight in the good

we are able to curb our lusts."

[191] What has been said about Self-assertion, in the last chapter,

anticipates in some measure what holds of this virtue.

[192] See Sumner, _Folkways_, ch. xx.

[193] Upon this point see James, _Principles of Psychology_, Vol. II.,

pp. 561-567, and Royce, _World and Individual_, Vol. II., pp. 354-360.

[194] This receives more attention in ch. xxi. of Part III.

[195] Compare what was said concerning the intuitive and the discursive

factors in moral knowledge in ch. xvi.

* * * * *

PART III

THE WORLD OF ACTION

GENERAL LITERATURE FOR PART III

Addams, _Democracy and Social Ethics_, 1902, _Newer Ideals of Peace_,

1907; Santayana, _The Life of Reason_, Vol. II., 1905; Bergmann, _Ethik

als Kulturphilosophie_, 1904, especially pp. 154-304; Wundt, _Ethics_,

Vol. III., _The Principles of Morality and the Departments of the Moral

Life_ (trans. 1901); Spencer, _Principles of Ethics_, 1893, Vol. II.,

_Principles of Sociology_, 1882, Vol. I., Part II.; Ritchie, _Studies in

Political and Moral Philosophy_, 1888; Bosanquet, _Philosophical Theory

of the State_, 1899; Willoughby, _Social Justice_, 1900; Cooley, _Human

Nature and the Social Order_, 1902; Paulsen, _System der Ethik_, 5th

ed., 1900, Book IV.; Runze, _Praktische Ethik_, 1891; Janet, _Histoire

de la Science Politique dans ses Rapports avec la Morale_, 3d ed., 1887;

Plato, _The Republic_; Aristotle, _Ethics_, Book V., and _Politics_

(trans. by Welldon, 1883); Hegel, _Philosophy of Right_ (pub. 1820,

trans. by Dyde, 1896); Mackenzie, _An Introduction to Social

Philosophy_, 1890; Dunning, _History of Political Theories_, Vol. I.,

1902, Vol. II., 1905; Stein, _Die Sociale Frage im Licht der

Philosophie_, 1897.

CHAPTER XX

SOCIAL ORGANIZATION AND THE INDIVIDUAL

=Object of Part and Chapter.=--The history of morals manifests a twofold

movement. It reveals, on one side, constantly increasing stress on

_individual_ intelligence and affection. The transformation of customary

into reflective morals is the change from "Do those things which our

kin, class, or city do" to "Be a person with certain habits of desire

and deliberation." The moral history of the race also reveals constantly

growing emphasis upon the _social_ nature of the objects and ends to

which personal preferences are to be devoted. While the agent has been

learning that it is his personal attitude which counts in his deeds, he

has also learnt that there is no attitude which is exclusively private

in scope, none which does not need to be socially valued or judged.

Theoretic analysis enforces the same lesson as history. It tells us that

moral quality _resides in_ the habitual dispositions of an agent; and

that it _consists of_ the tendency of these dispositions to secure (or

hinder) values which are sociably shared or sharable.

In Part One we sketched the historical course of this development; in

Part Two we traced its theoretic analysis. In the present and concluding

Part, our purpose is to consider the distinctively social aspects of

morality. We shall consider how social institutions and tendencies

supply value to the activities of individuals, impose the conditions of

the formation and exercise of their desires and aims; and, especially,

how they create the peculiarly urgent problems of contemporary moral

life. The present chapter will take up the general question, that of

the relation of social organization to individual life.

Sec. 1. GROWTH OF INDIVIDUALITY THROUGH SOCIAL ORGANIZATIONS

From one point of view, historic development represents the increasing

liberation of individual powers from rigid social control. Sir John

Lubbock remarks: "No savage is free. All over the world his daily life

is regulated by a complicated and apparently most inconvenient set of

customs (as forcible as laws), of quaint prohibitions and privileges."

Looked at from another point of view, emancipation from one sort of

social organization means initiation into some other social order; the

individual is liberated from a small and fixed (customary) social group,

to become a member of a larger and progressive society. The history of

setting free individual power in desire, thought, and initiative is,

upon the whole, the history of the formation of more complex and

extensive social organizations. Movements that look like the

disintegration of the order of society, when viewed with reference to

what has preceded them, are factors in the construction of a new social

order, which allows freer play to individuals, and yet increases the

number of social groupings and the depth of social combinations.

This fact of historical development is well summed up in the following

words of Hobhouse, set forth as a summary of a comprehensive survey of

the historic development of law and justice, of the family including the

status of women and children, of the relations between communities, and

between classes, the rich and the poor.

He says: "Amid all the variety of social institutions and the ebb

and flow of historical change, it is possible in the end to detect

a double movement, marking the transition from the lower to the

higher levels of civilized law and custom. On the one hand, the

social order is strengthened and extended.... On this side the

individual human being becomes more and more subject to social

constraint, and, as we have frequently seen, the changes making

for the tightening of the social fabric may diminish the rights

which the individual or large classes of individuals can claim....

In this relation liberty and order become opposed. But the

opposition is not essential. From the first the individual relies

on social forces to maintain him in his rights, and in the higher

form of social organization we have seen order and liberty drawing

together again.... The best ordered community is that which

gives most scope to its component members to make the best of

themselves, while the 'best' in human nature is that which

contributes to the harmony and onward movement of society....

The responsible human being, man or woman, is the center of

modern ethics as of modern law, free so far as custom and law are

concerned to make his own life.... The social nature of man is not

diminished either on the side of its needs or its duties by the

fuller recognition of personal rights. The difference is that,

so far as rights and duties are conceived as attaching to human

beings as such, they become universalized, _and are therefore the

care of society as a whole rather than of any partial group

organization_."[196]

With this statement may be compared the words of Green and Alexander.

According to Green, moral progress consists in the _extension_ of the

area or range of persons whose common good is concerned, and in the

deepening or _intensification_ in the individual of his social interest:

"the settled disposition on each man's part to make the most and best of

humanity in his own person and in the person of others."[197]

Alexander's formulae for moral growth are the "laws of differentiation

and of comprehension." The first means diversification, specialization,

differentiating the powers of an individual with increased refinement of

each. The law of comprehension means the steady enlargement of the size

and scope of the social group (as from clan to modern national state)

with its increased complexity of ways in which men are brought into

contact with one another.[198]

=Social Life Liberates and Directs Individual Energies.=--Breadth in

extent of community life goes hand in hand with multiplication of the

stimuli which call out an individual's powers. Diversification of social

activities increases opportunities for his initiative and endeavor.

Narrow and meager social life means limitation of the scope of

activities in which its members may engage. It means little occasion for

the exercise of deliberation and choice, without which character is both

immature and fossilized; it means, in short, restricted personality. But

a rich and varied society, one which liberates powers otherwise torpid

and latent, also exacts that they be employed in ways consistent with

its own interests. A society which is extensive and complex would

dissolve in anarchy and confusion were not the activities of its various

members upon the whole mutually congruent. The world of action is a

world of which the individual is one limit, and humanity the other;

between them lie all sorts of associative arrangements of lesser and

larger scope, families, friendships, schools, clubs, organizations for

making or distributing goods, for gathering and supplying commodities;

activities politically organized by parishes, wards, villages, cities,

countries, states, nations. Every maladjustment in relations among these

institutions and associated activities means loss and friction in the

relations between individuals; and thereby introduces defect, division,

and restriction into the various powers which constitute an individual.

All harmonious cooperation among them means a fuller life and greater

freedom of thought and action for the individual person.

O=rder and Laws.=--The world of action as a scene of organized

activities going on in regular ways[199] thus presents a public or

common order and authority, with its established modes of operation, its

laws. Organized institutions, from the more permanent to the more

casual, with their orderly rules of conduct, are not, of course, prior

to individual activity; for their elements are individual activities

related in certain ways. But with respect to _any one_ individual in his

separate or distributive capacity, there is a genuine and important

sense in which the institution comes first. A child is born into an

already existing family with habits and beliefs already formed, not

indeed rigid beyond readaptation, but with their own order

(arrangements). He goes to schools which have their established methods

and aims; he gradually assumes membership in business, civic, and

political organizations, with their own settled ways and purposes. Only

in participating in already fashioned systems of conduct does he

apprehend his own powers, appreciate their worth and realize their

possibilities, and achieve for himself a controlled and orderly body of

physical and mental habits. He finds the value and the principles of his

life, his satisfaction and his norms of authority, in being a member of

associated groups of persons and in playing his part in their

maintenance and expansion.

=The Social and the Moral.=--In customary society, it does not occur to

any one that there is a difference between what he ought to do, i.e.,

the moral, and what those about him customarily do, i.e., the social.

The socially established is the moral. Reflective morality brings with

it, as we have seen, a distinction. A thoughtfully minded person reacts

against certain institutions and habits which obtain in his social

environment; he regards certain ideas, which he frames himself and which

are not embodied in social habits, as more moral than anything existing

about him. Such reactions against custom and such projections of new

ideas are necessary if there is to be progress in society. But

unfortunately it has often been forgotten that this distinctly

_personal_ morality, which takes its stand against some established

usage, and which, therefore, for the time being has its abode only in

the initiative and effort of an individual, is simply the means of

_social_ reconstruction. It is treated as if it were an end in itself,

and as if it were something higher than any morality which is or can be

socially embodied.

At some periods, this view has led to a monastic retreat from all social

affairs for the sake of cultivating personal goodness. At other times,

it has led to the political indifference of the Cynic and Stoic. For

ages, it led to a morality of "other worldliness"; to the belief that

true goodness can be attained only in another kind of life and world--a

belief which carried with it relative contempt and neglect of concrete

social conditions in this life. Social affairs at best were only

"secular" and temporal, and, in contrast with the eternal and spiritual

salvation of the individual's own soul, of little account. After the

Renaissance and the Protestant Revolt, this kind of moral individualism

persisted in different forms. Among the hedonists, it took the form of

assuming that while social arrangements are of very great importance,

their importance lies in the fact that they hinder or help individuals

in the attainment of their own private pleasures. The transcendentalists

(such as Kant) asserted that, since morality is wholly a matter of the

inner motive, of the personal attitude towards the moral law, social

conditions are wholly external. Good or evil lies wholly inside the

individual's own will. Social institutions may help or hinder the

outward _execution_ of moral purpose; they may be favorable or hostile

to the successful outward display of virtue. But they have nothing to do

with originating or developing the moral purpose, the Good Will, and

hence, in themselves, are lacking in moral significance. Thus Kant made

a sharp and fast distinction between _morality_, appertaining solely to

the individual's own inner consciousness, and _legality_, appertaining

to the social and political conditions of outward behavior. Social

institutions and laws may indeed regulate men's outer acts. So far as

men externally conform, their conduct is legal. But laws cannot regulate

or touch men's motives, which alone determine the morality of their

behavior.

We shall not repeat here our prior criticisms of hedonism and

utilitarianism in order to point out the falsity of this division of

moral action into unrelated inner (or private) and outer (or social)

factors. We may recall to memory, however, that Kant himself virtually

passed beyond his own theory of moral individualism in insisting upon

the promotion of a "Kingdom of Ends," in which every person is to be

treated as an end in himself. We may recall that the later utilitarians

(such as Mill, Leslie Stephen, Bain, and Spencer) insisted upon the

_educative_ value of social institutions, upon their importance in

forming certain interests and habits in the individual. Thus social

arrangements were taken out of the category of mere means to private

good, and made the necessary factors and conditions of the development

of an individuality which should have a reasonable and just conception

of its own nature and of its own good. We may also enumerate some of the

more fundamental ways in which social institutions determine individual

morality.

1. Apart from the social medium, the individual would never "know

himself"; he would never become acquainted with his own needs and

capacities. He would live the life of a brute animal, satisfying as best

he could his most urgent appetites of hunger, thirst, and sex, but

being, as regards even that, handicapped in comparison with other

animals. And, as we have already seen, the wider and the richer the

social relationships into which an individual enters, the more fully are

his powers evoked, and the more fully is he brought to recognize the

possibilities latent in them. It is from seeing noble architecture and

hearing harmonious music that the individual learns to know to what his

own constructive and rhythmic tendencies, otherwise blind and inchoate,

may come. It is from achievement in industrial, national, and family

life that he is initiated into perception of his own energy, loyalty,

and affection.

2. Social conditions not only evoke what is latent, and bring to

conscious recognition what is blind, but they select, encourage, and

confirm certain tendencies at the expense of others. They enable the

individual to discriminate the better and the worse among his tendencies

and achievements. There is no limit in the power of society to awaken

and strengthen this habit of discrimination, of choice after comparison,

in its individual members. A small social group with fixed habits, a

clan, a gang, a narrow sect, a dogmatic party, will restrict the

formation of critical powers--i.e., of conscientiousness or moral

thoughtfulness. But an individual who _really_ becomes a member of

modern society, with its multiple occupations, its easy intercourse, its

free mobility, its rich resources of art and science, will have only too

many opportunities for reflective judgment and personal valuation and

preference. _The very habits of individual moral initiative, of personal

criticism of the existent order, and of private projection of a better

order, to which moral individualists point as proofs of the purely

"inner" nature of morality, are themselves effects of a variable and

complex social order._

=The Moral Value of the State.=--If then we take modern social life in

its broadest extent, as including not only what has become

institutionalized and more or less fossilized, but also what is still

growing (forming and re-forming), we may justly say that it is as true

of progressive as of stationary society, that the moral and the social

are one. The virtues of the individual in a progressive society are more

reflective, more critical, involve more exercise of comparison and

selection, than in customary society. But they are just as socially

conditioned in their origin and as socially directed in their

manifestation.

In rudimentary societies, customs furnish the highest ends of

achievement; they supply the principles of social organization and

combination; and they form binding laws whose breach is punished. The

moral, political, and legal are not differentiated. But village

communities and city-states, to say nothing of kingdoms and empires and

modern national States, have developed special organs and special

regulations for maintaining social unity and public order. Small groups

are usually firmly welded together and are exclusive. They have a narrow

but intense social code:--like a patriarchal family, a gang, a social

set, they are clannish. But when a large number of such groups come

together within a more inclusive social unity, some institution grows up

to represent the interests and activities of the whole as against the

narrow and centrifugal tendencies of the constituent factors. A society

is then _politically_ organized; and a true public order with its

comprehensive laws is brought into existence. The moral importance of

the development of this public point of view, with its extensive common

purposes and with a general will for maintaining them, can hardly be

overestimated. Without such organization, society and hence morality

would remain sectional, jealous, suspicious, unfraternal. Sentiments of

intense cohesion within would have been conjoined with equally strong

sentiments of indifference, intolerance, and hostility to those without.

In the wake of the formation of States have followed more widely

co-operative activities, more comprehensive and hence more reasonable

principles of judgment and outlook. The individual has been emancipated

from his relative submergence in the local and fixed group, and set upon

his own feet, with varied fields of activity open to him in which to try

his powers, and furnished with principles of judging conduct and

projecting ideals which in theory, at least, are as broad as the

possibilities of humanity itself.

Sec. 2. RESPONSIBILITY AND FREEDOM

The more comprehensive and diversified the social order, the greater the

responsibility and the freedom of the individual. His freedom is the

greater, because the more numerous are the effective stimuli to action,

and the more varied and the more certain the ways in which he may

fulfill his powers. His responsibility is greater because there are more

demands for considering the consequences of his acts; and more agencies

for bringing home to him the recognition of consequences which affect

not merely more persons individually, but which also influence the more

remote and hidden social ties.

=Liability.=--Freedom and responsibility have a relatively superficial

and negative meaning and a relatively positive central meaning. In its

external aspect, responsibility is _liability_. An agent is free to act;

yes, but--. He must stand the consequences, the disagreeable as well as

the pleasant, the social as well as the physical. He may do a given act,

but if so, let him look out. His act is a matter that concerns others as

well as himself, and they will prove their concern by calling him to

account; and if he cannot give a satisfactory and credible account of

his intention, subject him to correction. Each community and

organization informs its members what it regards as obnoxious, and

serves notice upon them that they have to answer if they offend. The

individual then is (1) likely or liable to have to explain and justify

his behavior, and is (2) liable or open to suffering consequent upon

inability to make his explanation acceptable.

=Positive Responsibility.=--In this way the individual is made aware of

the stake the community has in his behavior; and is afforded an

opportunity to take that interest into account in directing his desires

and making his plans. If he does so, he is a responsible person. The

agent who does not take to heart the concern which others show that they

have in his conduct, will note his liability only as an evil to which he

is exposed, and will take it into consideration only to see how to

escape or evade it. But one whose point of view is sympathetic and

reasonable will recognize the justice of the community interest in his

performances; and will recognize the value to him of the instruction

contained in its assertions of its interest. Such an one responds,

answers, to the social demands made; he is not merely called to answer.

He holds himself responsible for the consequences of his acts; he does

not wait to be held liable by others. When society looks for responsible

workmen, teachers, doctors, it does not mean merely those whom it may

call to account; it can do that in any case. It wants men and women who

habitually form their purposes after consideration of the social

consequences of their execution. Dislike of disapprobation, fear of

penalty, play a part in generating this responsive habit; but fear,

operating directly, occasions only cunning or servility. Fused, through

reflection, with other motives which prompt to action, it helps bring

about that apprehensiveness, or susceptibility to the rights of others,

which is the essence of responsibility, which in turn is the sole

_ultimate_ guarantee of social order.

=The Two Senses of Freedom.=--In its external aspect, freedom is

negative and formal. It signifies freedom _from_ subjection to the will

and control of others; exemption from bondage; release from servitude;

capacity to act without being exposed to direct obstructions or

interferences from others. It means a clear road, cleared of

impediments, for action. It contrasts with the limitations of prisoner,

slave, and serf, who have to carry out the will of others.

=Effective Freedom.=--Exemption from restraint and from interference

with overt action is only a condition, though an absolutely

indispensable one, of effective freedom. The latter requires (1)

positive control of the resources necessary to carry purposes into

effect, possession of the means to satisfy desires; and (2) mental

equipment with the trained powers of initiative and reflection requisite

for free preference and for circumspect and far-seeing desires. The

freedom of an agent who is merely released from direct external

obstructions is formal and empty. If he is without resources of personal

skill, without control of the tools of achievement, he must inevitably

lend himself to carrying out the directions and ideas of others. If he

has not powers of deliberation and invention, he must pick up his ideas

casually and superficially from the suggestions of his environment and

appropriate the notions which the interests of some class insinuate into

his mind. If he have not powers of intelligent self-control, he will be

in bondage to appetite, enslaved to routine, imprisoned within the

monotonous round of an imagery flowing from illiberal interests, broken

only by wild forays into the illicit.

=Legal and Moral.=--Positive responsibility and freedom may be regarded

as moral, while liability and exemption are legal and political. A

particular individual at a given time is possessed of certain secured

resources in execution and certain formed habits of desire and

reflection. In so far, he is positively free. Legally, his sphere of

activity may be very much wider. The laws, the prevailing body of rules

which define existing institutions, would protect him in exercising

claims and powers far beyond those which he can actually put forth. He

is exempt from interference in travel, in reading, in hearing music, in

pursuing scientific research. But if he has neither material means nor

mental cultivation to enjoy these legal possibilities, mere exemption

means little or nothing. It does, however, create a moral demand that

the practical limitations which hem him in should be removed; that

practical conditions should be afforded which will enable him

effectively to take advantage of the opportunities formally open.

Similarly, at any given time, the liabilities to which an individual is

actually held come far short of the accountability to which the more

conscientious members of society hold themselves. The morale of the

individual is in advance of the formulated morality, or legality, of the

community.

=Relation of Legal to Moral.=--It is, however, absurd to separate the

legal and the ideal aspects of freedom from one another. It is only as

men are held liable that they become responsible; even the conscientious

man, however much in some respects his demands upon himself exceed those

which would be enforced against him by others, still needs in other

respects to have his unconscious partiality and presumption steadied by

the requirements of others. He needs to have his judgment balanced

against crankiness, narrowness, or fanaticism, by reference to the

sanity of the common standard of his times. It is only as men are exempt

from external obstruction that they become aware of possibilities, and

are awakened to demand and strive to obtain more positive freedom. Or,

again, it is the possession by the more favored individuals in society

of an effectual freedom to do and to enjoy things with respect to which

the masses have only a formal and legal freedom, that arouses a sense of

inequity, and that stirs the social judgment and will to such reforms of

law, of administration and economic conditions as will transform the

empty freedom of the less favored individuals into constructive

realities.

Sec. 3. RIGHTS AND OBLIGATIONS

=The Individual and Social in Rights and Obligations.=--That which,

taken at large or in a lump, is called freedom breaks up in detail into

a number of specific, concrete abilities to act in particular ways.

These are termed _rights_. Any right includes within itself in intimate

unity the individual and social aspects of activity upon which we have

been insisting. As a capacity for exercise of power, it resides in and

proceeds from some special agent, some individual. As exemption from

restraint, a secured release from obstruction, it indicates at least the

permission and sufferance of society, a tacit social assent and

confirmation; while any more positive and energetic effort on the part

of the community to guarantee and safeguard it, indicates an active

acknowledgment on the part of society that the free exercise by

individuals of the power in question is positively in its own interest.

Thus a right, individual in residence, is social in origin and intent.

The social factor in rights is made explicit in the demand that the

power in question be exercised in certain ways. A right is never a claim

to a wholesale, indefinite activity, but to a _defined_ activity; _to

one carried on_, that is, _under certain conditions_. This limitation

constitutes the _obligatory_ phases of every right. The individual is

free; yes, that is his right. But he is free to act only according to

certain regular and established conditions. That is the obligation

imposed upon him. He has a right to use public roads, but he is obliged

to turn in a certain way. He has a right to use his property, but he is

obliged to pay taxes, to pay debts, not to harm others in its use, and

so on.

=Correspondence of Rights and Obligations.=--Rights and obligations are

thus strictly correlative. This is true both in their external

employment and in their intrinsic natures. Externally the individual is

under obligation to use his right in a way which does not interfere with

the rights of others. He is free to drive on the public highways, but

not to exceed a certain speed, and on condition that he turns to right

or left as the public order requires. He is entitled to the land which

he has bought, but this possession is subject to conditions of public

registration and taxation. He may use his property, but not so that it

menaces others or becomes a nuisance. Absolute rights, if we mean by

absolute those not relative to any social order and hence exempt from

any social restriction, there are none. But rights correspond even more

intrinsically to obligations. The right is itself a social outcome: it

is the individual's in so far as he is himself a social member not

merely physically, but in his habits of thought and feeling. He is under

obligation to use his rights in social ways. The more we emphasize the

free right of an individual to his property, the more we emphasize what

society has done for him: the avenues it has opened to him for

acquiring; the safeguards it has put about him for keeping; the wealth

achieved by others which he may acquire by exchanges themselves socially

buttressed. So far as an individual's own merits are concerned these

opportunities and protections are "unearned increments," no matter what

credit he may deserve for initiative and industry and foresight in using

them. The only fundamental anarchy is that which regards rights as

private monopolies, ignoring their social origin and intent.

=Classes of Rights and Obligations.=--We may discuss freedom and

responsibility with respect to the social organization which secures and

enforces them; or from the standpoint of the individual who exercises

and acknowledges them. From the latter standpoint, rights are

conveniently treated as physical and mental: not that the physical and

mental can be separated, but that emphasis may fall primarily on control

of the conditions required to execute ideas and intentions, or upon the

control of the conditions involved in their personal formation and

choice. From the standpoint of the public order, rights and duties are

civil and political. We shall consider them in the next chapter in

connection with the organization of society in the State. Here we

consider rights as inhering in an individual in virtue of his membership

in society.

=I. Physical Rights.=--These are the rights to the free unharmed

possession of the body (the rights to life and limb), exemption from

homicidal attack, from assault and battery, and from conditions that

threaten health in more obscure ways; and positively, the right to free

movement of the body, to use its members for any legitimate purpose, and

the right to unhindered locomotion. Without the exemption, there is no

security in life, no assurance; only a life of constant fear and

uncertainty, of loss of limb, of injury from others, and of death.

Without some positive assurance, there is no chance of carrying ideas

into effect. Even if sound and healthy and extremely protected, a man

lives a slave or prisoner. Right to the control and use of physical

conditions of life takes effect then in property rights, command of the

natural tools and materials which are requisite to the maintenance of

the body in a due state of health and to an effective and competent use

of the person's powers. These physical rights to life, limb, and

property are so basic to all achievement and capability that they have

frequently been termed "natural rights." They are so fundamental to the

existence of personality that their insecurity or infringement is a

direct menace to the social welfare. The struggle for human liberty and

human responsibility has accordingly been more acute at this than at any

other point. Roughly speaking, the history of personal liberty is the

history of the efforts which have safeguarded the security of life and

property and which have emancipated bodily movement from subjection to

the will of others.

=Unsolved Problems: War and Punishment.=--While history marks great

advance, especially in the last four or five centuries, as to the

negative aspect of freedom or release from direct and overt tyranny,

much remains undone on the positive side. It is at this point of free

physical control that all conflicts of rights concentrate themselves.

While the limitation by war of the right to life may be cited as

evidence for the fact that even this right is not absolute but is

socially conditioned, yet that kind of correspondence between individual

activity and social well-being which exacts exposure to destruction as

its measure, is too suggestive of the tribal morality in which the

savage shows his social nature by participation in a blood feud, to be

satisfactory. Social organization is clearly defective when its

constituent portions are so set at odds with one another as to demand

from individuals their death as their best service to the community.

While one may cite capital punishment to enforce, as if in large type,

the fact that the individual holds even his right to life subject to the

social welfare, the moral works the other way to underline the failure

of society to socialize its members, and its tendency to put undesirable

results out of sight and mind rather than to face responsibility for

causes. The same limitation is seen in methods of imprisonment, which,

while supposed to be protective rather than vindictive, recognize only

in a few and sporadic cases that the sole sure protection of society is

through education and correction of individual character, not by mere

physical isolation under harsh conditions.

=Security of Life.=--In civilized countries the blood feud, infanticide,

putting to death the economically useless and the aged, have been

abolished. Legalized slavery, serfdom, the subjection of the rights of

wife and child to the will of husband and father, have been done away

with. But many modern industries are conducted with more reference to

financial gain than to life, and the annual roll of killed, injured, and

diseased in factory and railway practically equals the list of dead and

wounded in a modern war.[200] Most of these accidents are preventable.

The willingness of parents on one side and of employers on the other,

conjoined with the indifference of the general public, makes child-labor

an effective substitute for exposure of children and other methods of

infanticide practiced by savage tribes. Agitation for old-age pensions

shows that faithful service to society for a lifetime is still

inadequate to secure a prosperous old age.

=Charity and Poverty.=--Society provides assistance and remedial

measures, poorhouses, asylums, hospitals. The exceedingly poor are a

public charge, supported by taxes as well as by alms. Individuals are

not supposed to die from starvation nor to suffer without any relief or

assistance from physical defects and disease. So far, there is growth in

positive provision for the right to live. But the very necessity for

such extensive remedial measures shows serious defects farther back. It

raises the question of social responsibility for the causes of such

wholesale poverty and widespread misery. Taken in conjunction with the

idleness and display of the congested rich, it raises the question how

far we are advanced beyond barbarism in making organic provision for an

effective, as distinct from formal, right to life and movement. It is

hard to say whether the heavier indictment lies in the fact that so many

shirk their share of the necessary social labor and toil, or in the fact

that so many who are willing to work are unable to do so, without

meeting recurrent crises of unemployment, and except under conditions of

hours, hygiene, compensation, and home conditions which reduce to a low

level the positive rights of life. The social order protects the

property of those who have it; but, although historic conditions have

put the control of the machinery of production in the hands of a

comparatively few persons, society takes little heed to see that great

masses of men get even that little property which is requisite to secure

assured, permanent, and properly stimulating conditions of life. Until

there is secured to and imposed upon all members of society the right

and the duty of work in socially serviceable occupations, with due

return in social goods, rights to life and free movement will hardly

advance much beyond their present largely nominal state.

=II. Rights to Mental Activity.=--These rights of course are closely

bound up with rights to physical well-being and activity. The latter

would have no meaning were it not that they subserve purposes and

affections; while the life of mind is torpid or remote, dull or

abstract, save as it gets impact in physical conditions and directs

them. Those who hold that the limitations of physical conditions have no

_moral_ signification, and that their improvement brings at most an

increase of more or less materialistic comfort, not a moral advance,

fail to note that the development of concrete purposes and desires is

dependent upon so-called outward conditions. These conditions affect the

execution of purposes and wants; and this influence reacts to determine

the further arrest or growth of needs and resolutions. The sharp and

unjustifiable antithesis of spiritual and material in the current

conception of moral action leads many well-intentioned people to be

callous and indifferent to the moral issues involved in physical and

economic progress. Long hours of excessive physical labor, joined with

unwholesome conditions of residence and work, restrict the growth of

mental activity, while idleness and excess of physical possession and

control pervert mind, as surely as these causes modify the outer and

overt acts.

=Freedom of Thought and Affection.=--The fundamental forms of the right

to mental life are liberty of judgment and sympathy. The struggle for

spiritual liberty has been as prolonged and arduous as that for physical

freedom. Distrust of intelligence and of love as factors in concrete

individuals has been strong even in those who have proclaimed most

vigorously their devotion to them as abstract principles. Disbelief in

the integrity of mind, assertion that the divine principles of thought

and love are perverted and corrupt in the individual, have kept

spiritual authority and prestige in the hands of the few, just as other

causes have made material possessions the monopoly of a small class. The

resulting restriction of knowledge and of the tools of inquiry have kept

the masses where their blindness and dullness might be employed as

further evidence of their natural unfitness for personal illumination by

the light of truth and for free direction of the energy of moral

warmth.[201] Gradually, however, free speech, freedom of communication

and intercourse, of public assemblies, liberty of the press and

circulation of ideas, freedom of religious and intellectual conviction

(commonly called freedom of conscience), of worship, and to some extent

the right to education, to spiritual nurture, have been achieved. In the

degree the individual has won these liberties, the social order has

obtained its chief safeguard against explosive change and intermittent

blind action and reaction, and has got hold of the method of graduated

and steady reconstruction. Looked at as a mere expedient, liberty of

thought and expression is the most successful device ever hit upon for

reconciling tranquillity with progress, so that peace is not sacrificed

to reform nor improvement to stagnant conservatism.[202]

=Right and Duty of Education.=--It is through education in its broadest

sense that the right of thought and sympathy become effective. The

final value of all institutions is their educational influence; they are

measured morally by the occasions they afford and the guidance they

supply for the exercise of foresight, judgment, seriousness of

consideration, and depth of regard. The family, the school, the church,

art, especially (to-day) literature, nurture the affections and

imagination, while schools impart information and inculcate skill in

various forms of intellectual technique. In the last one hundred years,

the right of each individual to spiritual self-development and

self-possession, and the interest of society as a whole in seeing that

each of its members has an opportunity for education, have been

recognized in publicly maintained schools with their ladder from

kindergarten through the college to the engineering and professional

school. Men and women have had put at their disposal the materials and

tools of judgment; have had opened to them the wide avenues of science,

history, and art that lead into the larger world's culture. To some

extent negative exemption from arbitrary restriction upon belief and

thought has been developed into positive capacities of intelligence and

sentiment.

=Restrictions from Inadequate Economic Conditions.=--Freedom of thought

in a developed constructive form is, however, next to impossible for the

masses of men so long as their economic conditions are precarious, and

their main problem is to keep the wolf from their doors. Lack of time,

hardening of susceptibility, blind preoccupation with the machinery of

highly specialized industries, the combined apathy and worry consequent

upon a life maintained just above the level of subsistence, are

unfavorable to intellectual and emotional culture. Intellectual

cowardice, due to apathy, laziness, and vague apprehension, takes the

place of despotism as a limitation upon freedom of thought and speech.

Uncertainty as to security of position, the welfare of a dependent

family, close men's mouths from expressing their honest convictions,

and blind their minds to clear perception of evil conditions. The

instrumentalities of culture--churches, newspapers, universities,

theatres--themselves have economic necessities which tend to make them

dependent upon those who can best supply their needs. The congestion of

poverty on one side and of "culture" on the other is so great that, in

the words of a distinguished economist, we are still questioning

"whether it is really impossible that all should start in the world with

a fair chance of leading a cultured life free from the pains of poverty

and the stagnating influences of a life of excessive mechanical

toil."[203] We provide free schools and pass compulsory education acts,

but actively and passively we encourage conditions which limit the mass

of children to the bare rudiments of spiritual nurture.

=Restriction of Educational Influences.=--Spiritual resources are

practically as much the possession of a special class, in spite of

educational advance, as are material resources. This fact reacts upon

the chief educative agencies--science, art, and religion. Knowledge in

its ideas, language, and appeals is forced into corners; it is

overspecialized, technical, and esoteric because of its isolation. Its

lack of intimate connection with social practice leads to an intense and

elaborate over-training which increases its own remoteness. Only when

science and philosophy are one with literature, the art of successful

communication and vivid intercourse, are they liberal in effect; and

this implies a society which is already intellectually and emotionally

nurtured and alive. Art itself, the embodiment of ideas in forms which

are socially contagious, becomes what it is so largely, a development of

technical skill, and a badge of class differences. Religious emotion,

the quickening of ideas and affections by recognition of their

inexhaustible signification, is segregated into special cults,

particular days, and peculiar exercises, and the common life is left

relatively hard and barren.

In short, the limitations upon freedom both of the physical conditions

and the mental values of life are at bottom expressions of one and the

same divorce of theory and practice,--which makes theory remote,

sterile, and technical, while practice remains narrow, harsh, and also

illiberal. Yet there is more cause for hope in that so much has been

accomplished, than for despondency because mental power and service are

still so limited and undeveloped. The intermixture and interaction of

classes and nations are very recent. Hence the opportunities for an

effective circulation of sympathetic ideas and of reasonable emotions

have only newly come into existence. Education as a public interest and

care, applicable to all individuals, is hardly more than a century old;

while a conception of the richness and complexity of the ways in which

it should touch any one individual is hardly half a century old. As

society takes its educative functions more seriously and comprehensively

into account, there is every promise of more rapid progress in the

future than in the past. For education is most effective when dealing

with the immature, those who have not yet acquired the hard and fixed

directing forms of adult life; while, in order to be effectively

employed, it must select and propagate that which is common and hence

typical in the social values that form its resources, leaving the

eccentric, the partial, and exclusive gradually to dwindle. Upon some

generous souls of the eighteenth century there dawned the idea that the

cause of the indefinite improvement of humanity and the cause of the

little child are inseparably bound together.

LITERATURE

Kant, _Philosophy of Law_, 1796 (trans. by Hastie, 1887); Fichte, _The

Science of Rights_, 1798 (trans. by Kroeger, 1869); Rousseau, _Social

Contract_, 1762 (trans. by Tozer, 1893); Bonar, _Philosophy and

Political Economy_, 1893; Stephen, _Science of Ethics_, ch. iii. (on

Social Motives); Caird, _Social Philosophy of Comte_, 1885; Sidgwick,

_Practical Ethics_, 1898, Essay on Public Morality; Sidgwick, _Elements

of Politics_, 1891, ch. iv. on Individualism, vi. on Contract, x. on

Socialistic Interferences, xiii. on Law and Morality; Maine, _Ancient

Law_, 1861, Pollock's ed., 1906, chs. iii. and iv. on law of nature and

equity; Stephen, _Essays in Political and Moral Philosophy_, 1888;

Rickaby, _Political and Moral Essays_, 1902; Hobhouse, _Morals in

Evolution_, Vol. II., ch. vii. (on the general relation of the social

and the moral). On the development of rights to life, limb, and freedom

of movement, see Westermarck, chs. xiv.-xxii., and Sumner, _Folkways_,

chs. vi., vii., and viii.; Hobhouse, Vol. I., ch. vii. (on slavery);

Spencer, _Ethics_, Vol. II., Part IV. For charity, see Loch on Charity

and Charities, _Encyclopaedia Britannica_; Uhlhorn, _Christian Charity in

the Ancient Church_; L'Allemand, _Histoire de la Charite_; Nicholl,

_History of the English Poor Law_, 2 vols., 1898.

FOOTNOTES:

[196] Vol. I., pp. 367-368, italics not in original.

[197] P. 262 of _Prolegomena to Ethics_; see chs. iii. and iv. of Book

III.

[198] Alexander, _Moral Order and Progress_, pp. 384-898.

[199] This does not of course exclude change and reform. It means that,

so far as a society is organized, these changes themselves occur in

regular and authorized ways.

[200] It is stated, upon good authority, that a street railway system in

a large American city declined to adopt an improved fender, which made

it practically impossible to kill persons, because the annual cost would

be $5,000 more than the existing expense for damages. This same system

declined to adopt improved brakes which would reduce accidents to life

and limb; and it was discovered that one of its directors was largely

interested in the manufacture of the old brakes.

[201] Said Emerson: "If a man is sick, is unable, is mean-spirited and

odious, it is because there is so much of his nature which is unlawfully

withholden from him."

[202] Recent suppression by the police in the larger American cities of

public meetings called to discuss unemployment or other matters deemed

by some dangerous to vested interests, shows that the value of free

speech as a "safety-valve" has not even yet been thoroughly learned. It

also shows how the victories of freedom in the past have to be fought

and won over again under new conditions, if they are to be kept alive.

[203] Marshall, _Principles of Economics_.

CHAPTER XXI

CIVIL SOCIETY AND THE POLITICAL STATE

We have been considering responsible freedom as it centers in and

affects individuals in their distinctive capacities. It implies a public

order which guarantees, defines, and enforces rights and obligations.

This public order has a twofold relation to rights and duties: (1) As

the social counterpart of their exercise by individuals, it constitutes

_Civil Society_. It represents those forms of associated life which are

orderly and authorized, because constituted by individuals in the

exercise of their rights, together with those special forms which

protect and insure them. Families, clubs, guilds, unions, corporations

come under the first head; courts and civil administrative bodies, like

public railway and insurance commissions, etc., come under the second.

(2) The public order also fixes the fundamental terms and conditions on

which at any given time rights are exercised and remedies secured; it is

organized for the purpose of defining the basic methods of exercising

the activities of its constituent elements, individual and corporate. In

this aspect it is the _State_.

Sec. 1. CIVIL RIGHTS AND OBLIGATIONS

Every act brings the agent who performs it into association with others,

whether he so intends or not. His act takes effect in an organized world

of action; in social arrangement and institutions. So far as such

combinations of individuals are recurrent or stable, their nature and

operations are definitely formulated and definitely enforceable.

Partnerships, clubs, corporations, guilds, families are such stable

unions, with their definite spheres of action. Buying and selling,

teaching and learning, producing and consuming, are recurrent activities

whose legitimate methods get prescribed. These specific provinces and

methods of action are defined in Civil Rights. They express the

guaranteed and regular ways in which an individual, through action,

voluntarily enters into association or combination with others for the

sake of a common end. They differ from political rights and obligations

in that the latter concern modes of social organization which are so

fundamental that they are not left to the voluntary choice and purpose

of an individual. As a social being, he must have political

relationships, must be subject to law, pay taxes, etc.

=1. Contract Rights.=--Modes of association are so numerous and variable

that we can only select those aspects of civil rights which are morally

most significant. We shall discriminate them according as they have to

do (1) with the more temporary and casual combinations of individuals,

for limited and explicit purposes; and (2) with more permanent,

inclusive, and hence less definable ends; and (3) with the special

institutions which exist for guaranteeing individuals the enjoyment of

their rights and providing remedies if these are infringed upon. (1)

Contract rights. Rights of the first type are rights resulting from

express or implied agreements of certain agents to do or refrain from

doing specific acts, involving exchange of services or goods to the

mutual benefit of both parties in the transaction. Every bargain entered

into, every loaf of bread one buys or paper of pins one sells, involves

an implied and explicit contract. A genuinely free agreement or contract

means (i.) that each party to the transaction secures the benefit he

wants; (ii.) that the two parties are brought into cooperative or

mutually helpful relations; and that (iii.) the vast, vague, complex

business of conducting social life is broken up into a multitude of

specific acts to be performed and of specific goods to be delivered, at

definite times and definite places. Hence it is hardly surprising that

one school of social moralists has found in the conception of free

contract its social ideal. Every individual concerned assumes

obligations which it is to his interest to perform so that the

performance is voluntary, not coerced; while, at the same time, some

other person is engaged to serve him in some way. The limitations of the

contract idea will concern us later.

=2. The Permanent Voluntary Associations.=--Partnerships, limited

liability corporations, guilds, trades unions, churches, schools, clubs,

are more permanent and comprehensive associations, involving more

far-reaching rights and obligations. Societies organized for

conversation and sociability or conviviality, "corporations not for

profit," but for mutual enjoyment or for benevolent ends, come under the

same head. Most significant are the associations which, while entered

only voluntarily and having therefore a basis in contract, are for

generic ends. Thus they are permanent, and cover much more than can be

written in the contract. Marriage, in modern society, is entered into by

contract; but married life is not narrowed to the exchange of specific

services at specific times. It is a union for mutual economic and

spiritual goods which are coextensive with all the interests of the

parties. In its connection with the generation and rearing of children,

it is a fundamental means of guarding all social interests and of

directing their progress. Schools, colleges, churches, federations of

labor, organizations of employers, and of both together, represent other

forms of permanent voluntary organizations which may have the most

far-reaching influence both upon those directly concerned and upon

society at large.

=3. Right to Use of Courts.=--All civil rights get their final

application and test in the right to have conflicting rights defined

and infringed rights remedied by appeal to a public authority having

general and final jurisdiction. "The right to sue and be sued" may seem

too legal and external a matter to be worthy of much note in an ethical

treatise; but it represents the culmination of an age-long

experimentation with the problem of reconciling individual freedom and

public order. No civil right is effective unless it carries with it a

statement of a method of enforcement and, if necessary, of redress and

remedy. Otherwise it is a mere name. Moreover, conflicts of civil rights

are bound to occur even when there is good faith on the part of all

concerned, just because new situations arise. Unless there is a way of

defining the respective rights of each party in the new situation, each

will arbitrarily and yet in good faith insist upon asserting his rights

on the old basis: private war results. A new order is not achieved and

the one already attained is threatened or disrupted. The value of rights

to the use of courts resides, then, to a comparatively small degree, in

the specific cases of deliberate wrong which are settled. What is more

important is that men get instruction as to the proper scope and limits

of their activities, through the provision of an effective mechanism for

amicable settlement of disputes in those cases in which rights are vague

and ambiguous because the situations are novel.

=Classes of Wrongs and Remedies.=--Infringements upon rights, such as

murder, theft, arson, forgery, imply a character which is distinctly

anti-social in its bent. The wrong, although done to one, is an

expression of a disposition which is dangerous to all. Such a wrong is a

crime; it is a matter for the direct jurisdiction of public authority.

It is the business of all to cooperate in giving evidence, and it may

render one a criminal accomplice to conceal or suppress evidence, just

as it is "compounding a felony" for the wronged individual to settle the

wrong done him by arranging privately for compensation. The penalty in

such cases is generally personal; imprisonment or at least a heavy fine.

The violation may, however, be of the nature of a wrong or "tort,"

rather than of a crime; it may indicate a disposition indifferent to

social interests or neglectful of them rather than one actively hostile

to them. Such acts as libels, trespasses upon the land of another, are

illustrations. In such cases, the machinery of justice is put in motion

by the injured individual, not by the commonwealth. This does not mean

that society as a whole has no interest in the matter; but that under

certain circumstances encouraging individuals to look out for their own

rights and wrongs is socially more important than getting certain wrongs

remedied irrespective of whether men stand up for their own rights or

not. Then again, there are civil disputes which indicate neither a

criminal nor a harmful disposition, but rather uncertainty as to what

the law really is, leading to disputes about rights--interpretations of

a contract, express or implied. Here the interest of society is to

provide a method of settlement which will hinder the growth of ill will

and private retaliation; and which also will provide precedents and

principles that will lessen uncertainty and conflict in like cases in

the future.

Peace and tranquillity are not merely the absence of open friction and

disorder. They mean specific, easily-known, and generally recognized

principles which determine the province and limits of the legitimate

activity of every person. Publicity, standards, rules of procedure,

remedies acknowledged in common, are their essence. _Res publica_, the

common concern, remains vague and latent till defined by impartial,

disinterested social organs. Then it is expressed in regular and

guaranteed modes of activity. In the pregnant phrase of Aristotle, the

administration of justice is also its determination: that is, its

discovery and promulgation.

Sec. 2. DEVELOPMENT OF CIVIL RIGHTS

=Contrast of Primitive with Present Justice.=--The significance of the

accomplishments and the defects of the present administration of law may

be brought out by a sketch of its contrast with primitive methods. In

savage and barbarian society, on account of the solidarity of the

kin-group, any member of the group is likely to be attacked for the

offense of any other (see p. 28). He may not have participated in the

act, or have had complicity in planning it. His guilt is that the same

blood runs in his veins.[204] The punitive attack, moreover, is made

directly and promiscuously by the injured man and by his

blood-relatives; it is made in the heat of passion or in the vengeance

of stealth as custom may decree. Says Hearn, the state "did not

interfere in the private quarrels of its citizens. Every man took care

of his own property and his own household, and every hand guarded its

own head. If any injury were done to any person, he retaliated, or made

reprisals, or otherwise sought redress, as custom prescribed."[205] The

reprisal may itself have called for another, and the blood-feud was on.

In any case, the state of affairs was one literally, not metaphorically,

described as "private war."

=Changes Now Effected.=--This state of affairs has been superseded by

one in which a third, a public and impartial authority (1) takes

cognizance of offenses against another individual as offenses against

the commonwealth; (2) apprehends the supposed offender; (3) determines

and applies an objective standard of judgment, the same for all, the

law; (4) tries the supposed offender according to rules of procedure,

including rules of evidence or proof, which are also publicly

promulgated; and (5) takes upon itself the punishment of the offender,

if found guilty. The history of this change, important and interesting

as it is, does not belong here. We are concerned here only with the

relation of public authority, public law, and public activity to the

development of the freedom of the individual on one side and of his

responsibility on the other.[206] We shall point out in a number of

particulars that the evolution of freedom and responsibility in

individuals has coincided with the evolution of a public and impartial

authority.

=1. Good and Evil as Quasi-Physical.=--There are two alternatives in the

judgment of good and evil. (1) They may be regarded as having _moral_

significance, that is, as having a voluntary basis and origin. (2) Or

they may be considered as substantial properties of things, as a sort of

essence diffused through them, or as a kind of force resident in them,

in virtue of which persons and things are noxious or helpful, malevolent

or kindly. Savage tribes, for instance, cannot conceive either sickness

or death as natural evils; they are attributed to the malicious magic of

an enemy. Similarly the evil which follows from the acts of a man is

treated as a sign of some metaphysical tendency inherent in him. Some

men bring bad luck upon everything and everybody they have anything to

do with. A curse is on their doings. No distinction is made between

such evils and those which flow from intention and character. The notion

of the moral or voluntary nature of good and evil hardly obtains. The

quasi-physical view, bordering upon the magical, prevails. The result is

that evil is thought of as a contagious matter, transmitted from

generation to generation, from class or person to class or person; and

as something to be got rid of, if at all, by devices which are equally

physical. Natural evils, plagues, defeats, earthquakes, etc., _are

treated as quasi-moral, while moral evils are treated as more than half

physical_. Sins are infectious diseases, and natural diseases are

malicious interferences of a human or divine enemy. Morals are

materialized, and nature is moralized or demoralized.[207]

Now it is hardly necessary to point out the effect of such conceptions

in restricting the freedom and responsibility of the individual person.

Man is hemmed in as to thought and action on all sides by all kinds of

mysterious forces working in unforeseeable ways. This is true enough in

his best estate. When to this limitation is added a direction of energy

into magical channels, away from those controllable sources of evil

which reside in human disposition, the amount of effective freedom

possible is slight. This same misplacing of liability holds men

accountable for acts they have not committed, because some magic

tendency for evil is imputed to them. Famine, pestilence, defeat in war

are evils to be remedied by sacrifice of goods or persons or by

ritualistic ceremonies; while the remediable causes of harm in human

ignorance and negligence go without attention.

=2. Accident and Intention.=--Under such circumstances, little

distinction can be made between the good and evil which an individual

_meant_ to do and that which he _happened_ to do. The working

presumption of society, up to a comparatively late stage of its history,

was that every harmful consequence is an evidence of evil disposition in

those who were in any way concerned. This limitation of freedom was

accompanied by a counterpart limitation of responsibility. Where no harm

actually resulted, there was thought to be no harmful intent. Animals

and even inanimate objects which do injury are baleful things and come

under disapprobation and penalty. Even in civilized Athens there was a

survival of the practice of holding inanimate things liable. If a tree

fell on a man and killed him, the tree was to be brought to trial, and

after condemnation cast beyond the civic borders, i.e., outlawed.[208]

Anyhow, the owner of an offending article was almost always penalized.

Westermarck,[209] with reference to the guilt of animals, cites an

instance, dated in 1457, "when a sow and her six young ones were tried

on a charge of their having murdered and partly eaten a child; the sow,

being found guilty, was condemned to death, the young pigs were

acquitted on account of their youth and the bad example of their

mother." When sticks, stones, and animals are held accountable for evil

results, there is little chance of discriminating intent and accident or

misadventure in the case of personal agents. "The devil himself knoweth

not the intent, the 'thought' of man" was the mediaeval maxim; all that

can be certain is that harm has come and the one who caused it must

suffer; or else no overt harm has come and no one is to blame.[210] Harm

has been done and any one concerned, even remotely, in the injurious

situation, is _ex officio_ guilty; it will not do to take chances. The

remoteness of an implication which may involve liability is seen in the

condition of English law in the thirteenth century: "At your request I

accompany you when you are about your own affairs: my enemies fall upon

and kill me: you must pay for my death. You take me to see a wild-beast

show, or that interesting spectacle a madman: beast or madman kills me;

you must pay. You hang up your sword; some one else knocks it down so

that it cuts me; you must pay."[211] Only gradually did intent clearly

evolve as the central element in an act, and thus lead to the idea of a

voluntary or free act.

That the limitation upon the side of responsibility was equally great is

obvious. If a man is held liable for what he did not and could not

foresee or desire, there is no ground for his _holding himself_

responsible for anticipating the consequences of his acts, and forming

his plans according as he foresees. This comes out clearly in the

obverse of what has just been said. If no harm results from a willful

attempt to do evil, the individual is not blamed. He goes scot free. "An

attempt to commit a crime is no crime."[212]

=3. Character and Circumstances.=--Even in law, to say nothing of

personal moral judgments, we now almost as a matter of course take into

account, in judging an agent's intent, both circumstances, and character

as inferred from past behavior. We extend our view of consequences,

taking into account in judging the moral quality of a particular deed,

consequences its doer is _habitually_ found to effect. We blame the

individual less for a deed if we find it contrary to his habitual

course. We blame him more, if we find he has a character given to that

sort of thing. We take into account, in short, the permanent attitude

and disposition of the agent. We also discriminate the conditions and

consequences of a deed much more carefully. Self-defense, protection of

others or of property, come in as "extenuating circumstances"; the

degree of provocation, the presence of immediate impulsive fear or

anger, as distinct from a definitely formed, long-cherished idea, are

considered. The questions of first or of repeated offense, of prior

criminality or good behavior, enter in. Questions of heredity, of early

environment, of early education and opportunity are being brought to-day

into account.

We are still very backward in this respect, both in personal and in

public morals; in private judgment and in legal procedure and penalty.

Only recently have we, for example, begun to treat juvenile delinquents

in special ways; and the effort to carry appropriate methods further

meets with strong opposition and the even stronger inertia of

indifference. It is regarded by many good people as lowering the bars of

responsibility to consider early training and opportunity, just as in

its day it was so regarded to plead absence of intent in cases where

evil had actually resulted. It is not "safe" to let any one off from the

rigor of the law. The serious barrier, now as earlier, is upon the

scientific or intellectual side. There was a time when it did not seem

feasible to pass upon intent; it was hidden, known only to God. But we

have now devised ways, adequate in principle, though faulty in detail,

to judge immediate intent; similarly, with the growth of anthropology,

psychology, statistics, and the resources of publicity in social

science, we shall in time find it possible to consider the effects of

heredity, early environment, and training upon character and so upon

intent. We shall then regard present methods of judging intent to be

almost as barbarous as we now consider the earlier disregard of accident

and provocation. Above all we shall learn that increased, not relaxed

responsibility, comes with every increase of discrimination of causes

lying in character and conditions.[213]

=4. Intellectual Incapacity and Thoughtlessness.=--With increasing

recognition of character as the crucial element in voluntary action, we

now take into account such matters as age, idiocy, and insanity as

factors of judgment. But this also has been a slow growth. If we take

the one question of insanity, for example, in 1724 exculpation for harm

resulting from a madman's acts required that the person excused "be a

man that is totally deprived of his understanding and memory, and doth

not know what he is doing, no more than an infant, than a brute, or a

wild beast." At the beginning of the nineteenth century, the excuse was

no longer that of being such a raving lunatic as is here implied; but of

knowing right and wrong from each other _in the abstract_. By a

celebrated case in 1843, the rule was changed, in English law, to

knowledge of the difference between right and wrong in the particular

case. Further advance waits upon progress of science which will make it

more possible to judge the specific mental condition of the person

acting; and thus do away with the abuses of the present system which

tend, on the one hand, to encourage the pleading of insanity where none

may exist; and, on the other hand (by a rigid application of a technical

rule), to condemn persons really irresponsible.[214] Popular judgment

still inclines to impute clear and definite intention on the basis of

results; and to ignore conditions of intellectual confusion and

bewilderment, and justifies itself in its course on the ground that such

is the only "safe" course.[215]

=Responsibility for Thoughtlessness.=--But the release from

responsibility for deeds in which the doer is intellectually

incapacitated, is met on the other side by holding individuals of normal

mental constitution responsible for some consequences which were not

thought of at all. We even hold men accountable for _not_ thinking to do

certain acts. The former are acts of heedlessness or carelessness, as

when a mason on top of a building throws rubbish on to a street below

which injures some one, without any thought on his part of this result,

much less any deliberate desire to effect it. The latter are acts of

negligence, as when, say, an engineer fails to note a certain signal. In

such cases even when no harm results, we now hold the agent morally

culpable. Similarly we blame children for _not_ thinking of the

consequences of their acts; we blame them for _not_ thinking to do

certain things at a certain time--to come home when told, and so on.

This is not merely a matter of judgment by others. The more

conscientious a person is, the more occasions he finds to judge

_himself_ with respect to results which _happened because he did not

think or deliberate or foresee at all_--provided he has reason to

believe he would have thought of the harmful results if he had been of a

different character. Because we were absorbed in something else we did

not think, and while, in the abstract, this something else may have

been all right, in the concrete it may be proof of an unworthy

character. The very fact that we permitted ourselves to become so

absorbed that the thought of an engagement, or of an opportunity to help

some friend whom we knew to be in need, did not occur to us, is evidence

of a selfish, i.e., inconsiderate, character.

The case seems paradoxical and is crucial. Others hold us responsible

because we _were_ irresponsible in action and _in order_ that we may

_become_ responsible. We blame ourselves precisely because we discover

that an unconscious preference for a private or exclusive good led us to

be careless of the good of others. The effect (if the regret is genuine,

not simulated) is to develop a habit of greater thoughtfulness in the

future. Less and less do men accept for others or for themselves

ignorance as an excuse for bad consequences, when the ignorance itself

flows from character. Our chief moral business is to become acquainted

with consequences. Our moral character surely does not depend in this

case, then, upon the fact that we had alternatives clearly in mind and

chose the worse; the difficulty is that we had only one alternative in

mind and did not _consciously_ choose at all. Our freedom lies in the

_capacity_ to alter our mode of action, through having our ignorance

enlightened by being held for the neglected consequences when brought to

accountability by others, or by holding ourselves accountable in

subsequent reflection. Cases of careless acts and of acts omitted

through negligence are thus crucial for any theory of freedom and

responsibility. Either we are all wrong in blaming ourselves or others

in such cases, because there is no free or voluntary element in them; or

else there is responsibility when deliberate comparison of alternatives

and conscious preference are absent. There is responsibility for the

absence of deliberation. Nature does not forbear to attach consequences

to acts because of the ignorance of the one who does the deed. The evil

results that follow in the wake of a thoughtless act are precisely the

reminders that make one take thought the next time. Similarly, to be

held liable by others or to take ourselves to task for forgetfulness,

inconsiderateness, and negligence, is the way in which to build up

conscientious foresight and deliberate choice. The increased complexity

and danger of modern industrial activity, the menace of electric power,

of high explosives, of railway trains and trolley cars, of powerful

machines, have done much to quicken recognition that negligence may be

criminal, and to reawaken the conviction of Greek thought that

thoughtless ignorance, where knowledge is possible, is the worst of

evils. The increased interdependence of men, through travel and

transportation, collective methods of production, and crowding of

population in cities, has widened the area of the harm likely to result

from inconsiderate action, and has strengthened the belief that adequate

thoughtfulness is possible only where there is sympathetic interest in

others.

=5. The Conflict of Form and Substance.=--The technical forms of

procedure concerned in establishing and remedying rights were, for long

ages, more important than the substantial ends by which alone the forms

may be justified. Any effort for a remedy was nullified if the minutiae

of complicated formulae (largely magical or ritualistic in their origin)

were deviated from. Almost any obligation might be escaped by some quirk

or turn in some slight phrase or motion, without which no agreement was

binding, so sacramental was the importance of the very words. In early

days the rigidity of these semi-ritualistic performances doubtless

served to check arbitrary and reckless acts, and to impress the sense of

the value of a standard.[216] But they survived as "rudimentary organs"

long after they had done their work in this respect; and after they had

been eliminated from legal procedure they survived as habits of judging

conduct.

=Survivals of Spirit of Individualistic Litigation.=--The fact that the

procedure of justice originated as methods of supplying impartial

umpires for conflicts waged between individuals, has had serious

consequences. It has had indeed the desirable consequence of quickening

men to the perception of their rights and to their obligation as social

members to maintain them intact. But it has also had the undesirable

result of limiting the function of the public interest to the somewhat

negative one of securing fair play between contentious individuals. The

battle is not now fought out with fists or spears or oaths or ordeals:

but it is largely a battle of wits and of technical resources between

the opposite parties and their lawyers, with the State acting the part

of a benevolently neutral umpire. The ignorant, the poor, the foreign,

and the _merely_ honest are almost inevitably at a discount in this

battle.[217] And, in any case, the technical aspect of justice, that is,

the question of proper forms gets out of true perspective. The

"legally-minded" man is likely to be one with whom technical precedents

and rules are more important than the goods to be achieved and the evils

to be avoided. With increase of publicity and scientific methods of

determining and interpreting facts, and with a public and professional

criticism which is impartial and wise, we may anticipate that the

supremacy of the general good will be increasingly recognized in cases

of litigation, and that the courts, as organs of public justice, will

take a more active and substantial part in the management of all legal

controversies.[218]

=Legal and Moral.=--But, at the best, definitions of rights and of

remedial procedures only (1) lay down general, not individual

conditions, and (2), so far as they are strict, register precedent and

custom rather than anticipate the novel and variable. They can state

what shall not be done. Except in special cases, they cannot state what

shall be done, much less the spirit and disposition in which it shall be

done. In their formulations, they present a sort of minimum limit of

morality not to be overstepped by those inclined to ill. They throw

little light on the positive capacities and responsibilities of those

who are socially minded. They have a moral purpose: they free energy

from the friction attendant upon vague, obscure, and uncertain

situations, by enlightening men as to what they may do and how they may

do it. But the exaggeration of form at the expense of the substantial

end and good, leads to misplaced emphasis and false perspective. The

rules are treated as ends; they are employed not to get insight into

consequences, but as justifying, apart from consequences, certain acts.

The would-be conscientious agent is led into considering goodness as a

matter of obeying rules, not of fulfilling ends. The average individual

conceives he has satisfied the requirements of morality when he has

conformed to the average level of legal definition and prescription.

Egoistic, self-seeking men regard their actions as sanctioned if they

have _not_ broken the laws; and decide this question by success in

evading penalties. The intelligence that should go to employing the

spirit of laws to enlighten behavior is spent in ingenious inventions

for observing their letter. The "respectable" citizen of this type is

one of the unsocialized forces that social reformers find among their

most serious obstacles.

This identification of morality with the legal and jural leads to a

reaction which is equally injurious: the complete separation of the

legal and the moral, the former conceived as merely "outer," concerned

entirely with acts, not at all with motive and character. The effect of

this divorce is perhaps more serious upon the moral than upon the legal.

The separation makes morals sentimental and whimsical, or else

transcendental and esoteric. It leads to neglect of the social and

institutional realities which form a world of action as surely as

natural objects and energies form a physical world, and ends in the

popular conception of morals as just a matter of "goodness" (the

goody-goodiness) of individuals. One of the most fundamental of moral

duties is that of making the legal order a more adequate expression of

the common good.

=Special Problems.=--Civil Society thus imposes upon its members not

only specific obligations, but it also imposes upon all who enjoy its

benefits the supreme obligation of seeing that the civic order is itself

intelligently just in its methods of procedure. The peculiar moral

problems which men have to face as members of civil society change, of

course, from time to time with change of conditions; among the more

urgent of present problems, we may mention:

=1. Reform of Criminal Procedure.=--The negative side of morality is

never so important as the positive, because the pathological cannot be

as important as the physiological of which it is a disturbance and

perversion. But no fair survey of our methods, either of locating

criminality or of punishing it, can fail to note that they contain far

too many survivals of barbarism. Compared with primitive times we have

indeed won a precious conquest. Even as late as 1813, a proposal to

change the penalty for stealing five shillings from death to

transportation to a remote colony, was defeated in England.[219] But we

are likely in flattering ourselves upon the progress made to overlook

that which it remains to make. Our trials are technical rather than

human: they assume that just about so much persistent criminality must

persist in any case. They endeavor, in rather routine and perfunctory

ways, to label this and that person as criminal in such and such

degrees, or, by technical devices and resources, to acquit. In many

American states, distrust of government, inherited from days of

tyrannical monarchy or oligarchy, protects the accused in all sorts of

ways. For fear the government will unjustly infringe upon the liberty of

the individual, the latter is not only--as is just--regarded as innocent

till proved guilty; but is provided with every possible technical

advantage in rules of evidence, postponements and appeals, advantages

backed up, in many cities, by association with political bosses which

gives him a corrupt "pull."

On the other hand, there is as yet no general recognition of the

possibility of an unbiased scientific investigation into all the

antecedents (hereditary and environmental) of evildoers; an

investigation which would connect the wrong done with the _character of

the individual_ committing it, and not merely with one of a number of

technical degrees of crime, laid down in the statute books in the

abstract, without reference to particular characters and circumstances.

Thus while the evildoer has in one direction altogether too much of a

chance to evade justice, he has in another direction a chance at only

technical, rather than at moral, justice--justice as an individual human

being. It is not possible to discuss here various methods which have

been proposed for remedying these defects. But it is clearly the

business of the more thoughtful members of society to consider the evils

seriously and to interest themselves actively in their reform. We need,

above all, a change in two respects: (a) recognition of the

possibilities of new methods of judgment which the sciences of

physiology, psychology, and sociology have brought about; and (b)

surrender of that feudal conception according to which men are divided,

as it were essentially, into two classes: one the criminal and the other

the meritorious. We need to consider the ways in which the pressure and

the opportunities of environment and education, of poverty and

comfortable living, of extraneous suggestion and stimulation, make the

differences between one man and another; and to recognize how

fundamentally one human nature is at bottom. Juvenile courts, probation

officers, detention officers, mark the beginnings of what is possible,

but only the beginnings. For the most part crime is still treated

sordidly and by routine, except when, being sensational, it is the

occasion for a great battle of wits between keen prosecuting attorney

and clever "criminal lawyer," with the world through the newspapers

watching the display.

=2. Reform of Punishment.=--Emerson's bitter words are still too

applicable. "Our distrust is very expensive. The money we spend for

courts and prisons is very ill laid out. We make, by distrust, the thief

and burglar and incendiary, and by our court and jail we keep him

so."[220] Reformatories, whose purpose is change of disposition, not

mere penalization, have been founded; but there are still many more

prisons than reformatories. And, if it be argued that most criminals are

so hardened in evil-doing that reformatories are of no use, the answer

is twofold. We do not know, because we have never systematically and

intelligently tried to find out; and, even if it were so, nothing is

more illogical than to turn the unreformed criminal, at the end of a

certain number of months or years, loose to prey again upon society.

Either reform or else permanent segregation is the logical alternative.

Indeterminate sentences, release on probation, discrimination of classes

of offenders, separation of the first and more or less accidental and

immature offender from the old and experienced hand, special matrons for

women offenders, introduction of education and industrial training into

penitentiaries, the finding of employment for those released--all mark

improvements. They are, however, as yet inchoate. Intelligent members of

society need to recognize their own responsibility for the promotion of

such reforms and for the discovery of new ones.

=3. Increase of Administrative Efficiency.=--In the last one hundred

years, society has rapidly grown in internal complexity. Commercial

changes have brought about an intense concentration of population in

cities; have promoted migratory travel and intercourse, with destruction

of local ties; have developed world markets and collective but

impersonal (corporate) production and distribution. Many new problems

have been created, while at the same time many of the old agencies for

maintaining order have been weakened or destroyed, especially such as

were adapted to small groups with fixed habits. A great strain has thus

been put upon the instrumentalities of justice. Pioneer conditions

retarded in America the development of the problems incident upon

industrial reconstruction. The possibility of moving on, of taking up

new land, finding unutilized resources of forest and mine, the

development of new professions, the growth of population with new needs

to be met, stimulated and rewarded individual enterprise. Under such

circumstances there could be no general demand for public agencies of

inspection, supervision, and publicity. But the pioneer days of America

are practically ended. American cities and states find themselves

confronted with the same problems of public health, poverty and

unemployment, congested population, traffic and transportation,

charitable relief, tramps and vagabondage, and so forth, that have

troubled older countries.

We face these problems, moreover, with traditions which are averse to

"bureaucratic" administration and public "interference." Public

regulation is regarded as a "paternalistic" survival, quite unsuited to

a free and independent people. It would be foolish, indeed, to overlook

or deny the great gains that have come from our American individualistic

convictions: the quickening of private generosity, the growth of a

generalized sense of _noblesse oblige_--of what every successful

individual owes to his community; of personal initiative, self-reliance,

and versatile "faculty"; of interest in all the voluntary agencies which

by education and otherwise develop the individuality of every one; and

of a demand for equality of opportunity, a fair chance, and a square

deal for all. But it is certain that the country has reached a state of

development, in which these individual achievements and possibilities

require new civic and political agencies if they are to be maintained as

realities. Individualism means inequity, harshness, and retrogression to

barbarism (no matter under what veneer of display and luxury), unless it

is a _generalized_ individualism: an individualism which takes into

account the real good and effective--not merely formal--freedom of

_every_ social member.

Hence the demand for civic organs--city, state, and federal,--of expert

inquiry, inspection, and supervision with respect to a large number of

interests which are too widespread and too intricate to be well cared

for by private or voluntary initiative. The well-to-do in great cities

may segregate themselves in the more healthful quarters; they may rely

upon their automobiles for local transportation; they may secure pure

milk and unadulterated foods from personal resources; they may, by their

combined "pull," secure good schools, policing, lighting, and well-paved

streets for their own localities. But the great masses are dependent

upon public agencies for proper air, light, sanitary conditions of work

and residence, cheap and effective transportation, pure food, decent

educative and recreative facilities in schools, libraries, museums,

parks.

The problems which fall to the lot of the proper organs of

administrative inspection and supervision are essentially _scientific_

problems, questions for expert intelligence conjoined with wide

sympathy. In the true sense of the word political, they are political

questions: that is, they relate to the welfare of society as an

organized community of attainment and endeavor. In the cant sense of the

term political, the sense of conventional party-issues and party-lines,

they have no more to do with politics than have the multiplication table

and the laws of hygiene. Yet they are at present almost hopelessly

entangled with irrelevant "political" issues, and are almost hopelessly

under the heel of party-politicians whose least knowledge is of the

scientific questions involved, just as their least interest is for the

human issues at stake. So far "civil service reform" has been mainly

negative: a purging away of some of the grosser causes which have

influenced appointments to office. But now there is needed a

constructive reform of civil administration which will develop the

agencies of inquiry, oversight, and publicity required by modern

conditions; and which will necessitate the selection of public servants

of scientifically equipped powers.

Sec. 3. POLITICAL RIGHTS AND OBLIGATIONS

No hard and fast line can be drawn between civil society and the State.

By the State, however, we denote those conditions of social organization

and regulation which are most fundamental and most general:--conditions

which are summed up in and expressed through the general will as

manifested in legislation and its execution. As a civil right is

technically focused in the right to use the courts, "to sue and be

sued," that is in the right to have other claims adjudicated and

enforced by a public, impartial authority, so a political right is

technically summed up in the power to vote--either to vote directly upon

laws or to vote for those who make and carry out laws. To have the right

in a legislative assembly to speak for or against a certain measure; to

be able to say "yea" or "nay" upon a roll-call; to be able to put into a

ballot-box a piece of paper with a number of names written thereon, are

not acts which of themselves possess the inherent value of many of the

most ordinary transactions of daily life. But the representative and

potential significance of political rights exceeds that of any other

class of rights. Suffrage stands for direct and active participation in

the regulation of the terms upon which associated life shall be

sustained, and the pursuit of the good carried on. Political freedom and

responsibility _express an individual's power and obligation to make

effective all his other capacities by fixing the social conditions of

their exercise_.

=Growth of Democracy.=--The evolution of democratically regulated

States, as distinct from those ordered in the interests of a small

group, or of a special class, is the social counterpart of the

development of a comprehensive and common good. Externally viewed,

democracy is a piece of machinery, to be maintained or thrown away, like

any other piece of machinery, on the basis of its economy and efficiency

of working. Morally, it is the effective embodiment of the moral ideal

of a good which consists in the development of all the social capacities

of every individual member of society.

=Present Problems: 1. Distrust of Government.=--Present moral problems

connected with political affairs have to do with safeguarding the

democratic ideal against the influences which are always at work to

undermine it, and with building up for it a more complete and extensive

embodiment. The historic antecedent of our own governmental system was

the exercise of a monopoly by a privileged class.[221] It became a

democratic institution partly because the King, in order to secure the

monopoly, had to concede and guarantee to the masses of the people

certain rights as against the oligarchical interests which might rival

his powers; and partly because the centralization of power, with the

arbitrary despotism it created, called out protests which finally

achieved the main popular liberties: safety of life and property from

arbitrary forfeiture, arrest, or seizure by the sovereign; the rights of

free assembly, petition, a free press, and of representation in the

law-making body.

Upon its face, the struggle for individual liberty was a struggle

against the overbearing menace of despotic rulers. This fact has

survived in an attitude towards government which cripples its usefulness

as an agency of the general will. Government, even in the most

democratic countries, is still thought of as an external "ruler,"

operating from above, rather than as an organ by which people associated

in pursuit of common ends can most effectively cooperate for the

realization of their own aims. Distrust of government was one of the

chief traits of the situation in which the American nation was born. It

is embodied not only in popular tradition, and party creeds, but in our

organic laws, which contain many provisions expressly calculated to

prevent the corporate social body from effecting its ends freely and

easily through governmental agencies.[222]

There can be no doubt that the movement to restrict the functions of

government, the _laissez-faire_ movement, was in its time an important

step in human freedom, because so much of governmental action was

despotic in intention and stupid in execution. But it is also a mistake

to continue to think of a government which is only the people associated

for the assuring of their own ends as if it were the same sort of thing

as a government which represented the will of an irresponsible class.

The advance of means of publicity, and of natural and social science,

provides not only protection against ignorant and unwise public action,

but also constructive instrumentalities of intelligent administrative

activities. One of the chief moral problems of the present day is, then,

that of making governmental machinery such a prompt and flexible organ

for expressing the _common_ interest and purpose as will do away with

that distrust of government which properly must endure so long as

"government" is something imposed from above and exercised from without.

=2. Indifference to Public Concerns.=--The multiplication of private

interests is a measure of social progress: it marks the multiplication

of the sources and ingredients of happiness. But it also invites neglect

of the fundamental general concerns which, seeming very remote, get

pushed out of sight by the pressure of the nearer and more vivid

personal interests. The great majority of men have their thoughts and

feelings well occupied with their family and business affairs; with

their clubs for recreation, their church associations, and so on.

"Politics" becomes the trade of a class which is especially expert in

the manipulation of their fellows and skilled in the "acceleration" of

public opinion. "Politics" then gets a bad name, and the aloofness from

public matters of those best fitted, theoretically, to participate in

them is further promoted. The saying of Plato, twenty-five hundred years

ago, that the penalty good men pay for not being interested in

government is that they are then ruled by men worse than themselves, is

verified in most of our American cities.

=3. Corruption.=--This indifference of the many, which throws the

management of political affairs into the hands of a few, leads

inevitably to corruption. At the best, government is administered by

human beings possessed of ordinary human frailties and partialities;

and, at the best, therefore, its ideal function of serving impartially

the common good must be compromised in its execution. But the control of

the inner machinery of governmental power by a few who can work in

irresponsible secrecy because of the indifference and even contempt of

the many, incites to deliberate perversion of public functions into

private advantages. As embezzlement is appropriation of trust funds to

private ends, so corruption, "graft," is prostitution of public

resources, whether of power or of money, to personal or class interests.

That a "public office is a public trust" is at once an axiom of

political ethics and a principle most difficult to realize.

In our own day, a special field has been opened within which corruption

may flourish, in the development of public utility companies. Railways,

city transportation systems, telegraph and telephone systems, the

distribution of water and light, require public franchises, for they

either employ public highways or they call upon the State to exercise

its power of eminent domain. These enterprises can be carried on

efficiently and economically only as they are either monopolies, or

quasi-monopolies. All modern life, however, is completely bound up with

and dependent upon facilities of communication, intercourse, and

distribution. Power to control the various public-service corporations

carries with it, therefore, power to control and to tax all industries,

power to build up and cast down communities, companies, and individuals,

to an extent which might well have been envied by royal houses of the

past. It becomes then a very special object for great corporations to

control the agencies of legislation and administration; and it becomes a

very special object for party leaders and bosses to get control of

party machinery in order to act as brokers in franchises and in special

favors--sometimes directly for money, sometimes for the perpetuation and

extension of their own power and influence, sometimes for the success,

through influential support and contribution to party funds, of the

national party with which they are identified.