M The Right of the State to Promote Morality
207. The right of the individual man as such to free life is constantly gaining on its negative side more general recognition. It is the basis of the growing scrupulosity in regard to punishments which are not reformatory, which put rights finally out of the reach of a criminal instead of qualifying him for their renewed exercise. But the only rational foundation for the ascription of this right is the ascription of capacity for free contribution to social good. We treat this capacity in the man whose crime has given proof of its having been overcome by anti-social tendencies, as yet giving him a title to a further chance of its development; on the other hand, we act as if it conferred no title on its possessors, before a crime has been committed, to be placed under conditions in which its realisation would be possible. Is this reasonable? Yet are not all modern states so acting? Are they not allowing their ostensible members to grow up under conditions which render the development of social capacity practically impossible? Was it not more reasonable, as in the ancient states, to deny the right to life in the human subject as such, than to admit it under conditions which prevent the realisation of the capacity that forms the ground of its admission? This brings us to the fourth of the questions that arose1 out of the assertion of the individual’s right to free life. What is the nature and extent of the individual’s claim to be enabled positively to realise that capacity for freely contributing to social good which is the foundation of his right to free life?
208. In dealing with this question, it is important to bear in mind that the capacity we are considering is essentially a free or (what is the same) a moral capacity. It is a capacity, not for action determined by relation to a certain end, but for action determined by a conception of the end to which it is relative. Only thus is it a foundation of rights. The action of an animal or plant may be made contributory to social good, but it is not therefore a foundation of rights on the part of an animal or plant, because they are not affected by the conception of the good to which they contribute. A right is a power of acting for his own ends,—for what he conceives to be his good,—secured to an individual by the community, on the supposition that its exercise contributes to the good of the community. But the exercise of such a power cannot be so contributory, unless the individual, in acting for his own ends, is at least affected by the conception of a good as common to himself with others. The condition of making the animal contributory to human good is that we do not leave him free to determine the exercise of his powers; that we determine them for him; that we use him merely as an instrument; and this means that we do not, because we cannot, endow him with rights. We cannot endow him with rights because there is no conception of a good common to him with us which we can treat as a motive to him to do to us as he would have us do to him. It is not indeed necessary to a capacity for rights, as it is to true moral goodness, that interest in a good conceived as common to himself with others should be a man’s dominant motive. It is enough if that which he presents to himself from time to time as his good, and which accordingly determines his action, is so far affected by consideration of the position in which he stands to others,—of the way in which this or that possible action of his would affect them, and of what he would have to expect from them in return,—as to result habitually, without force or fear of force, in action not incompatible with conditions necessary to the pursuit of a common good on the part of others. In other words, it is the presumption that a man in his general course of conduct will of his own motion have respect to the common good, which entitles him to rights at the hands of the community. The question of the moral value of the motive which may induce this respect—whether an unselfish interest in common good or the wish for personal pleasure and fear of personal pain—does not come into the account at all. An agent, indeed, who could only be induced by fear of death or bodily harm to behave conformably to the requirements of the community, would not be a subject of rights, because this influence could never be brought to bear on him so constantly, if he were free to regulate his own life, as to secure the public safety. But a man’s desire for pleasure to himself and aversion from pain to himself, though dissociated from any desire for a higher object, for any object that is desired because good for others, may constitute a capacity for rights, if his imagination of pleasure and pain is so far affected by sympathy with the feeling of others about him as to make him, independently of force or fear of punishment, observant of established rights. In such a case the fear of punishment may be needed to neutralise anti-social impulses under circumstances of special temptation, but by itself it could never be a sufficiently uniform motive to qualify a man, in the absence of more spontaneously social feelings, for the life of a free citizen. The qualification for such a life is a spontaneous habit of acting with reference to a common good, whether that habit be founded on an imagination of pleasures and pains or on a conception of what ought to be. In either case the habit implies at least an understanding that there is such a thing as a common good, and a regulation of egoistic hopes and fears, if not an inducing of more ‘disinterested’ motives, in consequence of that understanding.
209. The capacity for rights, then, being a capacity for spontaneous action regulated by a conception of a common good, either so regulated through an interest which flows directly from that conception, or through hopes and fears which are affected by it through more complex channels of habit and association, is a capacity which cannot be generated—which on the contrary is neutralised—by any influences that interfere with the spontaneous action of social interests. Now any direct enforcement of the outward conduct, which ought to flow from social interests, by means of threatened penalties—and a law requiring such conduct necessarily implies penalties for disobedience to it—does interfere with the spontaneous action of those interests, and consequently checks the growth of the capacity which is the condition of the beneficial exercise of rights. For this reason the effectual action of the state, i.e. the community as acting through law, for the promotion of habits of true citizenship, seems necessarily to be confined to the removal of obstacles. Under this head, however, there may and should be included much that most states have hitherto neglected, and much that at first sight may have the appearance of an enforcement of moral duties, e.g. the requirement that parents have their children taught the elementary arts. To educate one’s children is no doubt a moral duty, and it is not one of those duties, like that of paying debts, of which the neglect directly interferes with the rights of someone else. It might seem, therefore, to be a duty with which positive law should have nothing to do, any more than with the duty of striving after a noble life. On the other hand, the neglect of it does tend to prevent the growth of the capacity for beneficially exercising rights on the part of those whose education is neglected, and it is on this account, not as a purely moral duty on the part of a parent, but as the prevention of a hindrance to the capacity for rights on the part of children, that education should be enforced by the state. It may be objected, indeed, that in enforcing it we are departing in regard to the parents from the principle above laid down; that we are interfering with the spontaneous action of social interests, though we are doing so with a view to promoting this spontaneous action in another generation. But the answer to this objection is, that a law of compulsory education, if the preferences, ecclesiastical or otherwise, of those parents who show any practical sense of their responsibility are duly respected, is from the beginning only felt as compulsion by those in whom, so far as this social function is concerned, there is no spontaneity to be interfered with; and that in the second generation, though the law with its penal sanctions still continues, it is not felt as a law, as an enforcement of action by penalties, at all.
210. On the same principle the freedom of contract ought probably to be more restricted in certain directions than is at present the case. The freedom to do as they like on the part of one set of men may involve the ultimate disqualification of many others, or of a succeeding generation, for the exercise of rights. This applies most obviously to such kinds of contract or traffic as affect the health and housing of the people, the growth of population relatively to the means of subsistence, and the accumulation or distribution of landed property. In the hurry of removing these restraints on free dealing between man and man, which have arisen partly perhaps from some confused idea of maintaining morality, but much more from the power of class-interests, we have been apt to take too narrow a view of the range of persons—not one generation merely, but succeeding generations—whose freedom ought to be taken into account, and of the conditions necessary to their freedom (‘freedom’ here meaning their qualification for the exercise of rights). Hence the massing of population without regard to conditions of health; unrestrained traffic in deleterious commodities; unlimited upgrowth of the class of hired labourers in particular industries which circumstances have suddenly stimulated, without any provision against the danger of an impoverished proletariate in following generations. Meanwhile, under pretence of allowing freedom of bequest and settlement, a system has grown up which prevents the landlords of each generation from being free either in the government of their families or in the disposal of their land, and aggravates the tendency to crowd into towns, as well as the difficulties of providing healthy house-room, by keeping land in a few hands. It would be out of place here to consider in detail the remedies for these evils, or to discuss the question how far it is well to trust to the initiative of the state or of individuals in dealing with them. It is enough to point out the directions in which the state may remove obstacles to the realisation of the capacity for beneficial exercise of rights, without defeating its own object by vitiating the spontaneous character of that capacity.
Notes
1 [Above, sec. 156. RLN]
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