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CHAPTER IX: the basis of individualism - Wordsworth Donisthorpe, Individualism: A System of Politics 
Individualism: A System of Politics (London: Macmillan and Co., 1889).
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the basis of individualism
The chain of economic reasoning, of which the first few links were wrought a hundred years ago by Adam Smith, leads us irresistibly to two main conclusions from which there seems to be no appeal. The first of these is the law of wages, as formulated by Ricardo, and which in the hands of Ferdinand Lassalle becomes the '' iron law of wages “(a phrase of ominous connotation). The second is the doctrine of laissez-faire, as taught by Bastiat and the Manchester school—a doctrine which in practice involves the minimisation of State interference.”
Between these two issues there is theoretically no antagonism whatever; but it is more than difficult to realise the existence of a democracy based on the eternal serfdom of the great majority of the citizens—the so-called working classes. Hence it is necessary to subject both these doctrines to a searching re-examination. The immediate object of the present chapter is to dissect the arguments underlying the doctrine of absolute individualism as set forth by its ablest exponents, and notably by Mr. Herbert Spencer, who, in The Man r. the State, has gathered into a focus all that is to be found scattered throughout his works bearing on the subject. The principles of personal liberty therein enunciated have been carried to their extreme expression by certain of Mr. Spencer's disciples, notably Mr. Auberon Herbert, with a thoroughness and a temerity equalled only by that of the English successors of Lassalle and Marx in their exposition of the creed of socialism.
But Mr. Spencer himself does not descend to details, and in meeting him it is not sufficient to point to the results of applying his principles to the concrete; it is necessary to meet him on ground which he has himself chosen, and to test his own conclusions by his own methods.
Mr. Spencer begins with the dogmatic assertion that “the great political superstition of the past was the divine right of kings.” He continues: “The great political superstition of the present is the divine right of parliaments. The oil of anointing seems unawares to have dripped from the head of the one on to the heads of the many, and given sacredness to them also and to their decrees.“ Whatever interpretation our fathers may have placed on the earlier doctrine, otherwise expressed in the maxim "The king can do no wrong,” it is certain that there is no general acceptance of the later doctrine in the literal sense. Indeed Mr. Spencer himself admits this by redefining the political superstition in a form less open to misconstruction, as the belief that Government power is subject to no restraint.”
Now, in one sense this is not a superstition, but a solid truth. That the group—society regarded as an organism— can through the effective majority (not necessarily the greatest number) do whatever it chooses, so far as the resistance of the minority is concerned, is a stubborn fact, whether it attains its ends through the medium of a despotism or through that of a representative Parliament elected by universal or any other suffrage. In another sense it is not true; but then neither is it a superstition, for no one believes it. That the group cannot act incompatibly with its own welfare is of course untrue. So says Austin; the writings of Bentham imply it: so do those of Hobbes. No one disputes it to-day —not even the most extreme socialist.
The question at issue between Mr. Spencer and his opponents is simply this, Have minorities, in the snse of the weaker party, any rights which are valid against the community? The answer depends upon the definition of the term “rights.'' If we accept the practical and intelligible definition of Austin, the question stands thus, Are there any claims for the defence of which the minority can successfully appeal to the group or State against the superior force of the effective majority? Considering that the will of the group is known only through the act of the effective majority, the question resolves into an absurdity. And if the ” rights “of the minority means the power to appeal successfully to a higher tribunal than the group itself, the answer must again be in the negative, for to admit the existence of such superior authority is to deny the existence of the group itself as an independent State.”
But does Mr. Spencer mean to say that the opinion of the larger number should sometimes give way to that of the smaller—that even the effective majority should sometimes defer to the wishes of the weaker party, and that this not only conduces to the welfare of the group, but is constantly done? In that case no one denies the proposition. Every party compromise testifies to the fact. To say that there is a moral law or a code of indefinite moral laws by which groups regulate their conduct, is simply to say that the conduct of societies is not arbitrary, which is obvious. But to contend that the State, when it has once made up its mind rightly or wrongly to act in such or such a way, is subject to restraints, is to say that which has no meaning. The group-will, once made up, necessarily manifests itself in action, and it is no more subject to restraints from within than is the will of a single human being. So that the proposition which Mr. Spencer regards as the great superstition turns out to be a great undeniable truth, or an absurdity believed by none. In neither case can it be called a superstition.
What is the element of untruth contained in the theory of a social pact as the foundation and justification of government? It is not the mere fact that no such gathering and agreement ever took place, for even Rousseau only regarded it as a tacit contract: and writers of a very different school have based the duty of obedience to the law on the ground that all members of a community have tacitly and virtually agreed to be bound by the laws. This then is not the element of untruth contained in the hypothesis, or rather formula. It is that the formula does not represent the fact. The group-will is not the sum of the wills of the individuals composing it; the two are incommensurable. Supposing that we knew the wish of every man living at the imaginary date of the contrat social, we should be utterly unable to predict the will of the group. It is not even the resultant of the wills of the units, but the resultant of those and many other forces acting in many other directions. It is the neglect of this fact, or rather ignorance of it, which vitiates all the social philosophy of those who build upon the foundation of a real or hypothetical social compact. Hobbes, Rousseau, and Bentham, and after them Mr. Spencer, commit the error of confounding the group-will with the sum of the wills of the units—an error pardonable enough in the first three. The following startling passage furnishes the key to the chain of strange sophistry which goes to make up the essay entitled “The great Political Superstition,” and which is happily so unfamiliar to readers of Mr. Spencer's works. After admitting the indefensibility of the assumption that, in order to escape the evil of chronic conflict, the members of a community enter into a pact or covenant by which they all bind themselves to surrender their primitive freedom of action, and subordinate themselves to the will of a ruling power agreed upon—after deriding the hypothesis and its authors in language neither generous nor just, Mr. Spencer proceeds to present his own alternative hypothesis.
“Further consideration reveals a solution of the difficulty; for, if dismissing all thought of any hypothetical agreement to co-operate, heretofore made, we ask what would be the agreement into which citizens would now enter with practical unanimity, we get a sufficiently clear justification for the rule of the majority inside a certain sphere, but not outside that sphere.”
So that, after all, the outcome of Mr. Spencer's criticism of Hobbes and Austin results in the substitution of a hypothetical social compact made to-day for a hypothetical social compact made a long time ago. Of the two, that of Hobbes is preferable. His supposition is considerably more intelligible than Mr. Spencer's solution. That at an indefinitely remote period wild people, hitherto living in a state of anarchy, came together, hit upon the plan of co-operation, and there and then agreed to conform to the will of the effective majority, may not be a historical fact; but nevertheless it is a fact that somehow men formerly in a state of anarchy did come little by little to subordinate their wills to that of the effective majority, consciously or unconsciously; in other words, the supremacy of the State came to be recognised as a fact. What men come to do, they may be said in a sense to agree to do. And if Hobbes had expressed his pact in terms to the effect that men agreed to abide by the decision of the effective majority—the State-will —he would have been very near the mark. The social compact and the divine right of kings or of parliaments are after all merely two ways of expressing a stubborn fact—namely, the fact that right is transfigured might.
But Mr. Spencer's social compact is a sort of chronic plebiscitum. The justification for each new Act of Parliament is to be found by the process of wondering what would be the result if the people were polled. This is of course the “referendum.” Carried out in practice instead of imagination its effect is to make every citizen a legislator in spite of the admitted fact that “there can be no fitness for legislative functions without wide knowledge of those legislative experiences which the past has bequeathed.”
But perhaps Mr. Spencer would not go the length of taking a poll of the people in order to justify each new piece of proposed legislation. He would rather work the question out on paper: he would ask himself—not the people—whether they would “agree to co-operate for the teaching of religion? ” and he would answer himself with “a very emphatic Xo.” “In like manner, if” (to take an actual question of the day) “people were polled to ascertain whether, in respect of the beverages they drank, they would accept the decision of the greater number, certainly half, and probably more than half, would be unwilling.” Now this is just what local-optionists deny. It is just what many others want to know. Mr. Spencer settles it offhand by intuition. But why should the majority be unwilling to abide by the decision of the majority? Is it that the majority has no confidence in its own judgment or rectitude? The self-regard of majorities is usually considered unimpeachable. But the strangest feature in this intuition is its marvellous precision. “Certainly half” he says, ” and probably more than half," would be unwilling. Surely, if we may be certain of fifteen millions out of thirty, we might venture to be certain of fifteen millions and one. This recalls the scrupulousness of the American gentleman who solemnly swore to having brought down ninety-nine pigeons at a shot, but refused to imperil his immortal soul by setting the figure at a hundred.
“Manifestly then,” says Mr. Spencer, “had social co-operation to be commenced by ourselves, and had its purposes to be specified before consent to co-operate could be obtained, there would be large parts of human conduct in respect of which co-operation would be declined, and in respect of which, consequently, no authority by the majority over the minority could be rightfully exercised.”
This extraordinary passage and the superstructure built upon it are so unpractical, so unreal, and so visionary, that the conclusion can hardly be resisted that the whole essay containing it and developing it has been exhumed from a half-forgotten heap of the author's early writings, and published without re-examination. It must be obvious to Mr. Spencer and to everybody else that in the main those would agree to co-operate who believed their own views on the question at issue to be in a majority. Others would of course decline.
Nor does the prospect brighten when we come to the converse question, For what ends would men agree to cooperate? To which the ready answer is, “None will deny that for resisting invasion the agreement would be practically unanimous.” Indeed ' Many will deny it most emphatically. Besides, supposing that only one person held aloof, would the rest be justified in coercing that one to co-operate? If so, on what principle ? Mr. Spencer himself excepts? the Quakers, whom, however, he dismisses with a compliment and annihilation. “Excepting the Quakers only, who having done highly useful work in their time, are now dying out, all would unite for defensive war—not however for offensive war.” This must be another of those intuitions which only a poll of the people can verify or disprove. It is at least as probable that a majority would vote the other way. Much would depend on the definition given to “invasion” and “defensive.” Nearly every civilised nation that has gone to war in the present century has believed itself to be acting on the defensive. Onlookers might be able to inform the belligerents in the Franco-German war of 1870 as to which of them was waging a defensive war, but both sides distinctly claimed that justification. More recently, M. Eerry justified the operations in Ton-king on the ground that the French were acting on the defensive! Again, as to rebellions, were the English on the defensive when they ineffectually endeavoured, to suppress the Boer rising? Were they on the defensive a century ago, when they successfully suppressed the Irish rising? Were the British the other day defending Egypt against the threatened invasion of the dervishes, or were the Soudanese fighting in defence of hearth and home ? Then again as to the term “invasion.” those modern Englishmen (or rather dwellers in England) who are smitten with the insular craze may define “invasion,” so far as they themselves are concerned, as the entry of a foreign force ri et armis upon the soil of England, Scotland, and Wales—and perhaps Ireland. Whether a German occupation of Heligoland, a Spanish seizure of Gibraltar, or an Italian attack on Malta would fall within the definition, only the late lamented Anti-Aggression League can say. It would be even more interesting to know whether a Russian advance upon India would fall within the category of invasions which Mr. Spencer would himself co-operate to repel, and at what point in the onward march the invasion might be said to begin. Putting aside the question of British frontiers, as exceptionally simple or exceptionally complicated, according as we take an insular or an imperial view of them, let us ask whether a French occupation of Alsace would be an invasion of Germany in the above sense '
But why should “invasion ” be construed as territorial invasion only? May not British interests and rights be invaded which are not territorial? Was not the tearing up of the Treaty of Paris by Russia in 1870 an invasion of England in the wider sense of the term? England, at great cost of blood and treasure, had obtained a certain negative right in the Black Sea—a certain safeguard against a definite danger. May not the German occupation of Angra Pepueña similarly be described as an invasion of British interests ? The district had for many years been treated as the property of Englishmen, and under the protection of England; it is contiguous to regions in which Englishmen almost alone are interested; and the conflict of jurisdiction in those regions is calculated to injure trade to the detriment of the English people. Is it an invasion?
Further, we are not told whether there would be any limit to the subordination of individuals to the State in those matters in which they, “with practical unanimity,” “almost unanimously,” “omitting criminals,''” excepting Quakers," agreed to co-operate. Take the agreement to co-operate for defensive war, and suppose that means something definite. Would the citizens thereby bind themselves to conform to the will of the majority in respect of measures directed to that end—all measures? Might not a citizen be willing to contribute money towards the expenses of the war without being willing to submit to conscription? Might he not accept conscription with power of substitution without being willing to serve? Or, assuming in the face of a growing party of sincere socialists that, “omitting criminals, all must wish to have person and property adequately protected,” is it equally certain that all would be willing to accept the decision of the majority in respect of the measures needful for that end? And what is “property ”? Mr. Spencer glides over this as a phantom ship might glide over sunken rocks. Surely people will not agree to protect property until they know what it is they are pledging themselves to protect. A thief steals a watch, and sells it to a bonâ-fide purchaser for its full value. Whose property is it that the State has to protect? A journeyman tailor agrees to make a quantity of army clothing out of cloth supplied to him by a cloth merchant, who before delivery fails for ten times the amount of his assets. Whose property is the clothing? Of course it is not difficult to say what would be a fair way of treating the claims of the different parties, or what is the existing law here and elsewhere; but the question is, Whose is the property? Whose is the property in a row of houses built by a lessee under a ninety-nine years' lease? Or in the case of “emphyteusis ” under the Roman law? Or in a chest of gold coins dug up by a labourer in a field occupied by one man, owned by another, mortgaged to a third, and sold to a fourth under the Settled Estates Act—and before completion of conveyance?
It is when we come to the land question that we find ourselves involved in the most inextricable maze. “In one other co-operation all are interested—use of the territory they inhabit.” What territory does any individual inhabit, or any determinate number of individuals? Or, if indeterminate, do the English people inhabit Ireland or India ? Do Londoners inhabit Yorkshire? In what sense is it true that one is more interested in one's neighbour's field than in his cattle? The one supplies corn, the other beef. “But,” it is urged, “we must have some security for the food of the people. If' landowners conspired to grow no corn, the people would starve, and such a state of things cannot be tolerated even as a bare possibility.” Likewise, if the owners of cattle conspired to destroy them, the people would have no beef. If capitalists conspired to smash up all machinery, rails, ships, tools, furnaces, and mills in the country, the nation would be ruined and the people destroyed. In short, if the race went mad, it would possibly commit suicide. Practically landowners, like capitalists in general, having interests coincident with those of the whole people, refrain as a class from exercising their rights to the detriment of society, and they are never likely to do so. "But we must have room to move about; in this respect land is sugnris; man is material, and space is essential to his existence, and if all space in sea and eartli and air is appropriated (cujus est solum, cjus est usque ad cœlum) those who own no space are in danger of being elbowed out of existence." Quite so: then would it not be as well to find out what kind of “use” it is which the public are vitally interested in, and whether it is correctly described as a “use ” at all? What kind of power the State does as a fact tend to reserve to itself, while recognising the proprietary rights of individuals, is ascertained more readily by a reference to the land laws and customs of all countries, than by a guess as to what a majority of the people in its wisdom would in this or any other country agree to do. In all civilised countries we find that as a fact the State dispossesses the proprietor whenever such dispossession is expedient in the general interest. We have railway concessions, new roads are made and new streets cut through congested districts, without any more concern for intervening proprietary claims than is involved in allowing full compensation—that is, such compensation as satisfies the national conscience. But what is Mr. Spencer's practical conclusion from the premises that all are interested in the use of the territory they inhabit? “The implication is,” says he, “that the will of the majority is valid respecting the modes in which, and conditions under which, parts of the surface or subsurface may be utilised, involving certain agreements made on behalf of the public with private persons and companies.” It would take too long in this place to analyse in nomological terms this remarkably opaque utterance. To some it might seem to have been drafted in order to fit in with whatever view of the land question should eventually turn out to be correct. Cithers might be pardoned for regarding it as a pillar of cloud for the purpose of veiling the transition from the writer's doctrine of land nationalisation, as set forth in Social Statics (and since repudiated), to the later doctrine of individualism as advocated in political Institutions. To me it appears as an arrangement of words neither having any particular meaning nor intended to have any.
At this point, in order to disarm criticism apparently, we are reminded that “details are not needful here.” “Why not? In other places Mr. Spencer is most painstaking himself, and most exacting in his demands upon others, as to attention to details”. “Nor is it needful,” he continues, “to discuss that border region lying between these classes of cases ”—that border region which, as Mill pointed out, is of all regions the most fruitful in supplying crucial tests and essential differences.
“It is sufficient,” we are told, to recognise the undeniable truth that there are numerous kinds of actions in respect of which men would not, if they were asked, agree with anything like unanimity to be bound by the will of the majority; while there are some kinds of actions in respect of which they would unanimously agree to be thus bound. Here then we find a definite warrant for enforcing the will of the majority within certain limits, and a definite warrant for denying the authority of its will beyond those limits.”
To which the reply is that, if it is sufficient for the philosopher to recognise the said “undeniable truth,” it is certainly not sufficient for the statesman, who wants to know not only that there are numerous kinds of such actions, but also what those kinds of actions are; and he will not (if he be wise) rest content with the ipse dint of any one who evolves the answer out of his own inner consciousness: and furthermore, he may not feel satisfied that the mere process of counting noses, even in imagination, will solve the question as to the morality of such actions.
From the position here taken up by Mr. Spencer it is but a short and easy step to “abstract rights.” After a brief and, as it will seem to most, in every way unsatisfactory analysis of the "untenable” opinion of Bentham and his disciples, we are led straight back to what modern jurists fondly hoped was the exploded doctrine of natural rights; ''for sundry groups of social phenomena unite to prove that this doctrine is well warranted, and the doctrine they set against it unwarranted. ”We are then told that various savage races are controlled by “long-acknowledged customs,” by “ancient usages,” by "primordial usages or tacit conventions," by “universally-recognised customs.” “So sacred are immemorial customs with the primitive man, that he never dreams of questioning their authority, and when government arises, its power is limited by them.” Now, premising that no one denies, or ever did deny, that State laws grew out of customs (they must have grown out of something), what are we to infer from this long string of social phenomena, many of which, being gleanings from travellers' tales, are open to doubt, while others are false on the face of them? Are we seriously asked to believe that the quaint and often ludicrous customs of savages are themselves the germs of the laws by which natural rights are sanctioned? Are we to understand that when Government arises, its power is limited by them in any other sense than that in which the will of a man is limited by his own desires and habits? If so, how?
The truth is, Mr. Spencer is confounding three distinct classes of so-called rights: the rights which he himself would sanction if he were the arbitrator; the rights which the claimant's fellow-citizens would individually recognise as morally just; and the rights which are as a matter of fact actually sanctioned by the law of the land. The first may be called “natural rights,” or rights as they ought to be in the opinion of their advocate; the second may be called moral rights, or rights as they would be under a code of laws deduced from the morals of the day; and the third may be called legal rights, or rights which are as a fact recognised by the State, and which are a natural development.
It is perfectly true that, as the leaders of the German school of jurists assert, the State laws which are actually carried out are not in all cases and in all respects identical with the State laws as they are expressed, whether embodied in a code or in a heterogeneous heap of statutes, or in authorised or received commentaries on the law. The invariable sequences which actually tend to hold good at any given time in any country, may be called the statical laws or internal group-morals of that particular State at that stage of its development. The laws as expressed are necessarily but imperfect and often distorted reflections of these true laws, the distortion being due not only to imperfect expression and inadequacy of language but more especially to the false generalisation of legislators or law-makers of one sort or another. Now, it is approximately the former class, the statical laws, which the German school style “Naturrecht.” There is another sense in which the term may be used, and that is, to denote the law as it tends to be but for disturbing causes; or, assuming those disturbing causes to be more or less evanescent, the laws as they tend to become. In neither of these senses is there any resemblance to the natural rights championed by Mr. Spencer, who is of course aware that although “recht ” may be translated by “droit ” or “jus,” it cannot be translated into English by the term “right” or “rights” or any other single word; and furthermore, that although “recht ” and “droit ” are fairly synonymous, “Naturrecht,” on the other hand, cannot be rendered into French as “droit natural.” Air. Spencer's “natural rights ” are the “droit naturel ” of Rousseau, the “jus naturale ” of Ulpian, the “inalienable right of every man born into the world ” of Mr. Henry George; but not the “Naturrecht” of Savigny. So that the appeal to the “root-idea of German jurisprudence ” (which is, above all, historical in method) to shore up the justly discredited card-castle of “natural rights,” is, to say the least of it, unfortunate.
Mr. Spencer does not usually allow himself to be a slave to words, but his singular criticism of Hobbes's explanation of the origin of justice seems to show that for once he has fallen into this condition. “The definition of injustice,” says Hobbes, “is none other than the not performing of covenants ” (including the tacit compact entered into by the members of a society, upon which Government, according to him, is based): “therefore, before the names of just and unjust can have place, there must be some coercive power to compel men equally to the performance of their covenants.”
Hence it is clear that by “injustice” Hobbes meant to denote the breach of legal duties. Ignoring this definition, Mr. Spencer substitutes his own, and naively remarks that among his own friends he could name half a dozen over whom the requirements of justice would be as imperative in the absence of a coercive power as in its presence. Possibly! The majority of Mr. Spencer's friends will hardly feel flattered by the limitation. But the question is, Could Mr. Spencer find half a dozen friends so law-abiding that they would obey the law even against their conscience without the terror of some punishment?
The truth is, Mr. Spencer is himself under the blinding influence of a great superstition—a superstition he has outlived in other departments of thought. He still believes in abstract justice, as something anterior to society or even to man—something immutable and absolute. He still holds, as he held in 1851, that the elimination of the mentally and morally inferior is in accordance with “the decrees of a large far-seeing benevolence.” He has since emancipated himself from the anthropomorphic belief involved, and declines to be held “committed to such teleological implications” as the passage cited contains; but, to use his own illustration, just as “Carlyle, who, in his student days, giving up, as he thought, the creed of his fathers, rejected its shell only, keeping the contents,” so his own mind is still under the sway of the metaphysical abstraction Justice. The laws, to have any validity (whatever that means), must conform to this test. He regards the laws solely as a means to an end. rather than as the products of evolution, the resultant of diverse forces acting in various direct—ions through countless ages. His standpoint in viewing State laws is precisely that of Dr. Paley viewing the marvellous adaptations of organic forms U, their surroundings. A giraffe with a short neck, argued Paley, would assuredly perish of starvation; hence his long neck is evidence of the far-seeing benevolence of his Creator. Honesty is the best policy, argues Mr. Spencer; the just tend to survive and the unjust to perish; hence the sufficient cause of good laws in Justice. Is it not remarkable that Hubbes, writing more than two centuries ago, should have examined nomological phenomena in a more positive spirit than the great philosopher of the nineteenth century? Hobbes argued, there are certain classes of actions which tend to conduce to the well-being of society. Experience has tauglu us what in the concrete these are; they are detailed in the expressed laws. We find by induction they may be classified under certain heads in accordance with certain practical middle principles; there is no general principle under which they can all be subsumed; but their common trait appears to be conformity. with the group-welfare. Let us denote them by the term. just. The connotation of the term we cannot tell. This is not the language of Hobbes's day, but it describes with fairness the method he adopted. He then inquired what it could be which counteracted the antagonistic efforts of individuals actuated not by group-welfare but by self-welfare: and he saw that it was none other than the power of the State. He did not attempt to resolve that force into its elements in terms of individual force; there it was as a fact. That was sufficient. He might have asked himself how far the State force represented the will of the greater number of men, Women, and children in the society; whether the will of a strong man went for more than that of a weak man; of a rich than of a poor man; of a clever than of a weak-minded man; whether the wills of half a dozen children contributed as much to the State will as the will of one man or two women. But he was neither curious nor dogmatic on these points. The fact was there, and he accepted it as a datum. In his day he found that the channel through which this State force operated was that of monarchical government, and he lived to see the so-called republic develop into a monarchy in all but the name, and later still to see the old monarchy restored. It is absolutely misleading to say that “Hobbes argued in the interests of absolute monarchy;” such an assertion is as unjust and as unfounded as would be the more plausible one that Mr. Spencer argues in the interests of the Liberal party. Hobbes was, and Mr. Spencer is, far above arguing in any interests. Hobbes was unquestionably the pro-fouudest thinker of his age—the age of Shakespeare and Bacon; and many Englishmen who cherish his name will bitterly reseiit this imputation. We have already referred to Mr. Spencer's sneer at Carlyle. Here is what he has to say of the founder of the English school of jurisprudence, probably the acutest logician of the century: “Austin was originally in the army, and it has been truly remarked that the permanent traces left may be seen in his Province of Jurisprudence. When undeterred by the exasperating pedantries—the endless distinctions and definitions and repetitions-which serve but to hide his essential doctrines, we ascertain what these are, it becomes manifest that he assimilates civil authority to rnilitary authority.” It is difficult to deal patiently with this passage. It is useful as showing up in a strong light the fundamental error which underlies and vitiates the whole of Mr. Spencer's political doctrines; an error he unconsciously adopted from his precursor Comte. That Austin was once in the army we know, but beyond this statement of fact, this criticism of the great jurist is as untrue as it is ungenerous. Those who attended Austin's lectures testify that, so far from having anything of the drill-sergeant about him, he was exceptionally modest and conversational in his method of teaching; he would listen attentively to all doubts, and ask the opinions of his hearers on points where he felt himself weak. But if we are to look for the traces of his army discipline in his conclusions, it is only necessary to repeat that it is Mr. Spencer himself who, after Comte, mistakes for a difference in kind what Austin clearly saw to be merely a difference in degree; the difference, namely, between the “military and industrial régimes.” As to exasperating pedantries, Austin himself attributes his own peculiarities of diction to a scrupulous anxiety to express each idea by a suitable word, and to use invariably that word to express the idea. His aim was to be not an elegant but a precise writer. From the expression “endless ” distinctions, it may be inferred that the complainant has never got to the end of them; those who have, only regret that poor Austin did not possess the health and strength to add to them, containing as they do some of the finest masterpieces of logical analysis. The repetitions which are a blemish on the published editions of his works are, as Mr. Spencer might have ascertained, the necessary result of delivering several lectures on the same subject to different audiences in different places; and the able editors of his lectures and posthumous papers have probably acted wisely in publishing them as they stand. For it is seldom that science can be caught, so to speak, in a state of growth in a great mind, as it is presented to us in Austin's wrestling writings. "While, as for the definitions that glitter like crystals throughout his works, and which so vex the soul of his critic, it is enough to say that an accurate acquaintance with even one of them (the wonderful definition of property) would have saved the author of The Man v. the State pages of useless writing, the whole of the fifteenth chapter of Political Institutions, and hours and days of anxious thought. There is nothing in the whole range of juristic literature comparable with Austin's final definition of property and the chain of masterly analysis which leads up to it. Mr. Spencer writes in complete ignorance of it.
Austin and all his works having been thus contemptuously thrust aside, the search is continued for a justification of the supremacy assumed by the sovereign body, or, as it has been styled, the effective majority. “The true question is, Whence the sovereignty? What is the assignable warrant for this unqualified supremacy assumed by one, or by a small number, or by a large number over the rest? ” Does any one really believe that any community is or ever was subject to the arbitrary caprice of one or of any determinate number of its members? Does Mr. Spencer believe that this country is governed in accordance with the will of a numerical majority, or that any such government is even conceivable? Is it not clear that the forms of individual force which go to make up the group-force are of very various kinds? Possibly brute force or muscular force contributes the least to the result. Force in the form of wealth, intellectual force, moral force, and many other and derivative and combined forms, pour into the common stream, all operating in countless directions, like the sensations and ideas and emotions in the mind of a man, and the resultant of these and other forces is the group-will. To ask for. any higher warrant for the authority of the group over its units, is to rake up in a fresh place the threadbare controversy about freewill. “How comes it,” asks the befogged controversialist, “that a man often refrains from doing what he wills to do? that something within him at the last moment whispers ' Don't do it,' with the effect of dissuading him? ” Mr. Spencer would answer him, “My dear sir, go home and learn the meaning of the words you use.” He certainly would not set about to think why the body does not move in the direction of least resistance, or why the lesser force should overcome the greater; or if not, by what peculiar virtue or authority, or warrant, or justification, the greater overcomes the less. And yet when the subject of the inquiry is not the organism a human being, but the organism a society, he searches everywhere for “an assignable warrant,” and bitterly complains that Austin while admitting that a government is actuated by group-morality furnishes none. “What we have to seek is some higher warrant for the subordination of the minority to the majority than that arising from inability to resist physical coercion.” “We have to find, not a physical justification, but a moral justification for the supposed absolute power of the majority.” But what is meant by the majority? Does any one suppose that the numerical majority, as such, either exercises absolute power, or ought to exercise it? All that Hobbes and Austin contend is, that what the group wills it does, and that those members of the community who happen to be in line with the group-act may be called the effective majority. No one pretends that any determinate person, or number of persons, ever did have or could have the making of the group-will.
If Mr. Spencer will recast his question, and ask, “What is the test of the goodness or badness of group-acts? ” we can cordially join in the quest. Bentham's answer was simple: “The greatest happiness of the greatest number;” but it was not true, and it was not definite. The greatest number of whom? Of living persons ?. or of the countless millions to come? If of the former, it is far from certain that a socialistic redistribution of wealth, accompanied by wholesale infanticide, would not be the readiest path. If of the latter (assuming that the two interests may be antagonistic), then we have to ask, “Why should the living sacrifice themselves for the sake of the unborn? ” Sympathy with the unborn ”. A frail motor! Though Mr. Spencer evidently has faith in it. “If,” says he, “we adopt the meliorist view” (not the optimist), “that life is on the way to become such that it will yield more pleasure than pain, then those actions by which life is maintained are justified.” Not at all: no act is morally justified which does not conduce to the ultimate welfare of the agent. This is what Mr. Sidgwick would call Egoistic Hedonism, but it is also common sense. Evidently Bentham's answer is unsatisfactory in theory and utterly unworkable in practice. To expect the legislator to measure the million and one effects of a proposed law with his “hedonometer,” to say nothing of the remote effects, is preposterous. "What, then, is the test of which we are in search? To any one who has once grasped the conception of the group as an organism-as a whole not to be expressed in terms of its component parts, any more than a man can be expressed in terms of the cells of which he is composed—the answer is clear enough: the welfare of the group. This is the warrant, this the justification.
When we seek for the motive of a law, we must not look for it in the minds of individuals conforming to that law. The motive is to be found in the group-mind. This is delicate ground. Group-psychology cannot be studied subjectively. The group-will can only be known objectively, by its acts. Hence we are not called upon to ascertain what the group may think of contemplated actions and their results; we must assume that it approves those actions of which the results conduce to the group-welfare. We have no other course; but it is sufficient. Our conclusions in individual ethics are for the most part similarly based on observation of the results of conduct.
We are not even bound to show that all the units of the group are benefited by the operation of the law: nor that the majority of the individuals are benefited; nor that any of the individuals are benefited. It is true there are powerful forces tending to bring about coincidence between the will of states and the wills of their component units, but this may be regarded for the present purpose as accidental. Certainly there are laws, good laws, operating in civilised communities, of which the advantages to the citizens are undiscernible, if not altogether non-existent. Nor is it necessary even to prove that future generations will be benefited by the observance of the law in question, although it is difficult to show the gain to the race without at the same time showing that at all events. some members of it share the gain individually. It is enough if we distinguish between the essential and the accidental.
It is for us, after having observed the invariable sequence (the law), to verify it by showing its bearing on the group-welfare. That is the only proof open to us beyond the mere induction. And without deductive proof, inductions in so complex a science as sociology are extremely untrustworthy. Hence no science of law can be firmly based which does not furnish this verification. And it is disregard of this branch of the science which is a blemish on the work of the historical school of jurisprudence.
But we must not fall into the mistake of confounding the explanation of a law with the explanation of its origin. The cause of the origin of a nomological law and the cause of its persistence are two different things. Illustrations of this distinction in the department of biological study will readily recur to the mind. No moth every consciously tried to mimic a butterfly, and yet such is the result of conforming to their own little desires that whole species of moths have so completely imitated certain species of butterflies that even the practised eye of the naturalist can hardly distinguish between them. And—what is more important from the moths' point of view-neither can the birds.
“We have then to look for the origin of justice (using the term, after Hobbes, as connoting that which is common to the enduring laws) in the conduct of individual men or animals which are not yet members of an organic group or state. Its germ or germs must be sought for in the anarchic stage of development. At the risk of repetition this should be clearly understood; the group-welfare is not the origin of the laws, but it is the cause of their survival-of their present existence. The strong man who first deferred to the wish of a weak man was not actuated by solicitude for the wellbeing of his race. But it was the compatibility of such acts with the wellbeiug of his race which preserved and rendered organic the habit of such acts. Tribes practising such acts predominated by elbowing other tribes out of existence, and by perpetuating a race of men actuated as a rule by like promptings, whatever they may have been. What those feelings were—why one of superior strength should form a habit of yielding in certain classes of cases to one who could not otherwise prevail against him, is the question we have now to answer.
The result of our inquiry will prove somewhat startling. Justice has two distinct origins. Nay, they are not only distinct, but even antagonistic. Justice then has two connotations. In one sense, justice enjoins a certain line of conduct; in another sense, justice enjoins an opposite line of conduct under precisely similar conditions. No wonder there has always been great confusion in this domain of thought. But let us set to work and trace the notion back to its double source.
Those who have watched the behaviour of dogs will have observed that a strong dog will seldom attempt to deprive a weak dog of a bone. Though stronger, he hesitates to attack the dog in possession. A fortiori, a little dog will not dare to attack a big dog in possession, though he will put on all his best military airs before yielding up his own bone. In this instance there are two minds to dissect. There is the mental attitude of the little dog, and there is the mental attitude of the big dog. Action is the end of will, or, in other words, the resultant of motives. The strongest motive actuating the little dog is the idea of enjoying the bone in the very near future. This future is so near, and the associations engendered by the smell and feel of the bone so intensify this idea, that it borders on realisation, and we have what is called an intense expectation. Hence, so far as the idea of gnawing a bone is capable of stimulating to action, we have it in its strongest form. And what is the mental attitude of the strongest dog? First, he also pictures to himself the pleasure of gnawing the bone which he sees before him; but the idea is far less intense than that of the possessor; he neither feels nor smells the bone, and the contemplated time of enjoyment is more remote. Moreover, experience has taught him (or instinct, the experience of his forefathers) that the little dog will most probably make a fight of it, in which case even though victory be with the strong, it will not be unalloyed with pain and trouble. In short, his expectation will be nothing like so intense as that of the possessor. It is unnecessary to go farther into the psychology of the position: it is enough to show that a custom will tend to develop of respecting possession. But it will be based upon fear, and, among the lower animals, eventually inherited habit, rather than upon any sense of possessory right.
Here is no recognition of the expediency of proportioning satisfaction to effort, but a recognition of the inexpediency of gratifying a desire at an expense in pain or risk which more than counterbalances the probable gain. The resulting habit is called the spirit of compromise. A boy with an apple in his hand has a better chance of eating it than a man a hundred yards off. The latter must give chase; he must then struggle for the apple, and may, even though successful, get a blow or a kick, and moreover, the apple may be eaten or thrown away before he can get it. The boy's right, his well-warranted expectation of enjoyment, is recognised without any extraneous interference. Again, here is a weary hunter sitting alongside a stag he has captured. One who is fresh, and perhaps stronger, comes up, impelled by hunger. Here are the elements of a fierce conflict. Both expect pleasure and both expect pain as the result of the fight. Now, both parties argue thus: A little with peace is better than the chance of much with the certainty of bruised limbs and the possibility of getting nothing. Why not share the prize in some proportion? The question, What proportion? is not settled by any reference to the efforts of the hunter, but by a rough calculation as to the least amount of blackmail which will induce the stronger man to keep the peace. Compromise is the germ of justice.
It is obvious that, on the average, force is greatly economised by compromise. This force, which, on the average, is wasted to no purpose on internal conflicts, might be turned to better account by the group for purposes of external defence or aggression. And moreover, on the average, individuals would not lose by the arrangement. The State would therefore be impelled by self-interest to recognise all such compromises; the State whose members practised the rule would tend to survive; and the habit would be hardened into what we call instinct in the “lower animals,” and conscience in man.
But justice has another and a very different origin. This also is to be found in the patriarchal stage of social development. We need not go farther back in our search than the stage in which already there is recognition of offspring, and what is called parental love. Nor need we analyse that sentiment. Parental love is a fact which nomology accepts as a datum.
A parent, without perhaps being able to assign a better reason for it than sympathy, will not permit an elder child always to take advantage of his superior strength in his dealings with a younger. An arbitrary State interference takes place. And here is the second germ of justice. Why it is not just, parents do not trouble to inquire, but for some reason or other, based on sympathy with weakness, the possessor of superior muscular force is arbitrarily debarred from reaping the natural advantages of that superiority. Here is no question of forecasting the probable result of a trial of strength, no compromise based on average economy. On the contrary, there is no doubt of the victory of the stronger if uninterfered with; and, moreover, the adjustment is not a voluntary one, but compulsory. It is imposed from without.
When the “gens” takes the place of the family as the political unit, the head of the house is no longer swayed by quite such immediate sympathy with the weaker members. In the meantime, his decisions have come to be based on principles of a more general character. Again, as these compound groups are recompounded, and the gens gives place to the tribe, personal sympathies are still further weakened, and judicial decisions are based on still wider generalisations—all of them, be it remembered, the outcome of experience, and not severally deduced from any high moral principle of abstract justice. When at last we reach the stage in which we see nations, each containing many tribes, all welded together into an organic state with its corpus juris cirilis, the ruler can have but little, if any, personal knowledge of the citizens, and he (or those to whom the judicial function is delegated) must be guided in his decisions by rules of high generality which are popularly believed to be based on what is termed justice; though what that is, not even the shrewdest of ancient or modern jurists has been able to tell us. What is connoted we do not know; but we are now in a position to define “just,” in this its second sense, as denoting those group interferences between individual citizens, which aim at more or less equalising the conditions of the competition. Here is no question of ascertaining by a rough forecast what the result of conflict would be, and arranging the matter accordingly, without recourse to force. Nor is the arrangement a voluntary one, based on the good sense of the two parties concerned—their reason, conscience, or inherited habit. It is an external interference by third parties for reasons based on sympathy with inferiority. This is accomplished by prohibiting the exercise of certain faculties (as a general prohibition) which, in a state of anarchy (or nature, as some wrongly call it), would give a decided advantage to one of the contending parties. Thus, on the plea of justice, forms of superior force came to be one by one eliminated. Stealth was, as a matter of history, long tolerated by the State when violence was deprecated. Later on, when stealth ceased to be allowed, low cunning was admired and permitted free play, just as nowadays sharp practice is winked at by many who would recoil from fraud; while even among those who are accounted high-minded among us, it is regarded as a laudable exercise of intellectual superiority to buy cheap from one who is ignorant of the true value of an article, and to sell dear to another who is also ignorant of it. Similarly the State permits what all honest men regard as blameworthy, while it ruthlessly puts its foot down on what appears hardly more culpable. Where the line will eventually be drawn it is impossible to say. The Roman law allowed one who had sold a thing far below its true value to come upon the purchaser for an account: we do not. Which is just?
I wish to lay special stress on the double origin of what is popularly regarded as justice. One is socialism: the other is individualism. The one is based originally on parental sympathy, which slowly expands from the family to humanity; the other is based on selfish compromise, and tends finally to absorb the whole field of law. Altruism tends to become wholly voluntary and law to become wholly based on average individual advantage and implied voluntary contract. Thus scientific anarchy is shown to be the end towards which society is moving. That is to say, we are approaching a state in which law, based on the rights of the selfish, will be tempered not by paternal despotism and compulsory charity (a contradiction in terms), but by true voluntary altruism.
At the same time the individualist is bound to recognise the organic nature of social groups, and to remember that to artificially and arbitrarily impose a more advanced form on an organism not yet ripe for it is not to hasten but to retard its development. To uproot the poor-law system, to abolish the system of State police, to leave prosecution for murder to the initiative of the murdered man's friends, or the Union to which he voluntarily affiliated himself, to leave the defence of territory to those who cared to defend it—such an extension of the principle at the present time in any existing country would be about as prudent and scientific a course as to impose free institutions, a representative system, and trial by jury on the Fijians. A wise gardener does not open a rosebud with an oyster knife. Hence I must not be understood as advocating the immediate practical application of principles which apply to future civilisations. I prefer to regard them as tendencies, and therefore as finger-posts to direct us on the line of least resistance. The ideal in all things is that towards which we may ever strive but which we may never reach.
It now remains for us to decide whether by the term “rights ” we mean moral rights or legal rights. The definition is optional. Usage justifies either. But having chosen, let us beware of employing the word in one sense in the major premiss, and in the other sense in the minor premiss, or the conclusion. Austin chose to define rights as legal rights; he was quite justified in doing this; and having done it, he never swerved to the right hand nor to the left. Mr. Spencer chooses to put the other interpretation on the term as used by Austin, and thus makes him appear to say that which is ridiculous. Austin knew perfectly well that usage precedes law, but he also knew that rights could not precede government in the sense in which he employed the terms, which is obvious.
It is clear from argument based on economy of force that the State would tend in many classes of cases to sanction pre-existing moral rights; but the “justification ” or “warrant” for this course would be not the moral rights themselves, but the gain to the group. Hundreds of instances will readily occur to the mind wherein the State has, so to speak, ridden roughshod over moral rights, and wisely so too. Lazarus at the gate of the rich man had a moral right (in the opinion of the narrator's countrymen) to some part of the other's wealth; but the State did not sanction that claim, and it is currently admitted that it would be inexpedient for any state to sanction such a claim. Here we have a moral right which does not tend to grow into a legal right. It is unnecessary to ascertain the basis of the moral right; it is enough to show that if law is to be based, as Mr. Spencer thinks, on “ natural rights,” by which he seems to mean some kind of moral rights, then we shall have group-morality (law) which is not based on group-welfare, which is absurd.
Let us turn to the evolution of law. What is a law in the nomological sense? It is the statement of an invariable sequence of which the antecedent is the act of an individual citizen or individual citizens, and the consequent is the act of the group or state. No amount of enacting or legislating makes a law; it is the carrying out of the enactment, or an invariable tendency to carry it out, in the absence of disturbing causes, such as ignorance, false evidence, escape of wrongdoer, etc., which justifies the statement and verifies the law. Of course there are many so-called State laws (statutes, etc.) which are not as a fact carried out in practice. Some are obsolete, others unworkable, and others uncongenial to the conscience of the age. All such are but distorted reflections or mendacious mis-statements of the true law (Naturrecht), which as a fact obtains. Such so-called State laws, statutes, decrees, edicts, etc., must continue to be called laws out of deference to popular usage; but the true laws in the scientific sense—statical laws—are the statements of invariable sequences, by whomsoever promulged. It is the province of the legislator to discover these laws; and more-to divine by a study of history and his own time the changes which are in course of being worked out; to discover by some process not only the law as it is, but the law as it tends to become. The laws of the change and development of statical laws may in Comtist phraseology be termed dynamical nomological laws. And the first question for the nomologist to decide is, as to the method to be adopted in the search. Transcendental jurists, it is needless to observe, adopt the method which, oddly enough, Mr. Spencer has followed and defended. The laws as they ought to be, must, they say, be deduced, like the propositions of Euclid, from one or a few fundamental principles, of which the chief is fiat justitiα.
The empirical school of jurists, on the other hand, contend that there are no known truths of the highest generality, and that each law must be tested on its merits by its fitness to conduce to the wellbeing of the people, or some of them. And they proceed to find this out in each case by observation, experiment, or calculation—an heroic task, which does more credit to their patience than to their appreciation of the vastness of the subject. All seem alike to overlook the suitability of the method adopted in the other inductive sciences—that of making inductions from the minor social rules which have stood the test of time; of casting the conclusion into the form of a more general rule; of extracting, when possible, that which is common to this rule, and other general rules arrived at by a similar process, and so of arriving at a rule of higher generality. As in other departments of science, the inquirer is then in possession of many laws of various degrees of generality, which he must verify by applying them to new or uuconsidered or hypothetical cases. This process of exhaustive subsumption will either strengthen the probability of his original conclusion, or show up the weak point in it; in which latter case he will be in a position to qualify it in accordance with his widened experience. The third part of the process which is conveniently carried on concurrently with the others, is that of making deductions from the general laws reached by induction. As in other branches of inquiry, some of the greatest and most valuable truths will be brought to light by this process; but it need hardly be said that the value of a deduction depends not only on the correctness of the logic, but on the truth of the premiss. Hence it is that most of the deductions hitherto contributed to ethics and jurisprudence, being deductions not from generalisations based on the actual sequences observed in the actions of men and of groups of men, but on meaningless dogmas as to Duty, Justice, Virtue, Right, and the like, have little or no value whatsoever.
The historical source of law has already been indicated, and it is evident that State laws are not, and never have been, deductions from the highest moral truths, or supposed truths. They took their rise from the generalisations which were of necessity made when questions became too numerous and too complicated to be decided, each, from beginning to end, on its merits. Precedents were cited; the ratio decidcndi was extracted, correctly or erroneously, and the result was a State law.
In making these generalisations, either consciously or unconsciously, the law-makers or judges of old naturally made imperfect inductions, just as our lawyers do now. They seized upon some accidental feature common to a number of cases which seemed similar, instead of upon the essential feature. This accidental feature they took as the basis of the new generalisation or State law. To take a modern instance of this fallacy. Of thousands of partnership cases tried in this country, community of profit and loss seems to be a common feature. Hence lawyers of high repute (see Lindley on “Partnership”) have seized upon this trait as the distinctive mark of partnership; thus confounding the accidental with the essential, and entailing great injustice and hardship. The essential element in partnership is not community of profit and loss, but reciprocal guaranty. It may be said that nearly all bad State laws which are not the result of erroneous beliefs are due to false generalisations. Nearly all the confusions, the complications, and the injustice of the English laws relating to liens, to mortgages, to debts of priority, to consideration, to bankruptcy, etc. etc., are due to blundering generalisations. Lien, for example, has never yet been correctly defined in any legal authority, simple and beautiful as the connotation is. Consequently, many true liens are unrecognised by law, whilst others are sanctioned which have no proper existence, to the great injury of the actual owner. Like remarks apply to such elementary legal conceptions as debt and security. In many cases the false generalisation is too wide; it covers cases which bear only a superficial resemblance; but in others it frequently fails to cover cases to which the correct ratio decidendi applies.
Some State laws are repealed, or cease to be operative; others persist through centuries of social development. What is the reason for the survival of some laws and the extinction of others? Tribes whose laws conduce to the wellbeing of the race necessarily outlive and thrust out of existence those tribes whose laws, however apparently reasonable or just, do not conduce to the group - welfare. This becomes more obvious when we reflect that in some times and places laws are operative and conducive to group-welfare which in other countries or in other ages would clearly lead to disintegration. No one pretends that monogamy, for example, would be a desirable institution in a poultry-yard. Few would condemn polygamy among nomad tribes in a thinly-populated area. Is there a hint as to its immorality or inexpediency in the Old Testament? Again, infanticide was legally practised by Greeks and Romans, and to—day it is recognised in China. Even stealing is said to have been lawful in Sparta; and duelling is allowed and encouraged in several European countries to-day. We have only to refer to Montesquieu for numerous instances of laws and customs in vogue among peoples separated from us by space and time, which, if introduced into nineteenth-century England, would probably ruin the country. We shall easily satisfy ourselves that the fitness of a law is not to be tested by any reference to a supposed standard of justice or virtue, but by its effect on the eventual welfare of the race adopting it. If it is not conducive to the group-welfare one of two things will happen: either the law will be dropped, or the group will perish. Thus the just and the unjust laws (regarded from any arbitrary standpoint) will survive together where they are conducive to the welfare of the group; they will perish together where they are not conducive. And so it befalls that many good laws are not just, if judged by the common sense of a so-called just man. (For that justice has a connotation, though undiscovered, there can be little doubt; and that, in the absence of a true definition, there is no better clue to the connotation of the term than the instinctive feeling of the multitude in applying it to the concrete, is also tenable.) Indeed since the widest-ranging laws are but generalisations from laws of less generality, and since every step of the process opens the door to fallacies which may become ingrained in the law, it follows that in a highly civilised and complex society hardly any of the laws, whether written or unwritten, can be regarded as just. The most that can be shown in their favour is that any alternative laws which might be proposed would probably result in even greater injustice-in a larger number of cases of hardship than the existing laws; which in many cases is not saying much. But such is the force of habit that we seem to see justice in a law of undoubted expediency in which there is not a tittle, in any sense of the term, which has ever been suggested. This habit blinds us to the immense differentiation which has taken place in morals and laws. He who would deduce laws as they ought to be (i.e. as they tend to be) from morals, must be capable of calculating the present position of the geological strata from a knowledge of the antecedent physical conditions of the globe.
From a very early stage we find the moral and the legal rights in collision. For instance, how came it that when the weaker child tried to take possession of a thing which the elder and stronger was using, the parent refrained from equalising the conditions? Brute force was allowed to predominate. Here the sympathy with intensity of expectation overpowered the sympathy with physical weakness. And so at the present day proprietary right prevails over sympathy with the hardships and disadvantageous position of the poor. It is in accordance with the group-welfare. It is only when man enters upon the scene that sympathy with intense disappointment alter intense expectation and antipathy for the cause of the disappointment are manifested. From the moment when the family as a whole, through the patriarch, interferes on behalf of the holder or possessor of a thing and against the would-be despoiler, from that moment we have the recognition of possessory right.
Let us follow up the development of this recognised right. We have seen how it would come about that one who had gathered a cocoa-nut would be left in undisputed enjoyment, or that otherwise the State would interfere to ensure that result. Now suppose he had captured a stag, and could not eat the whole of it at one meal. Four courses would be open to him: he could carry about with him as much of the carcase as he could lift, and relinquish the rest; or he could sit down alongside of it until he was again hungry; or he might hand over to a friend as much as he could not eat; or lastly, he could inform all and sundry that the carcase was his own, that he claimed it, that he could, if he chose, remain with it and so get his claim respected, and that to compel him to do so would be a restriction on his liberty. Probably this fourth course would be the last to be adopted, but it would necessarily come into use, for the simple reason that it would be a saving of the common time—an economy of group-force. And not until the recognition of this right over a thing not in actual possession came to be assured, could the right of property in its fullest sense be said to have reached maturity. From the third course, which would be based on the possessory right of intensity of expectation, would of course spring the right of gift, transfer, or alienation.
The right to things within the grip or within the power of immediate resumption has widened into a right to things not within the grip; this presently and necessarily extends to prescriptive ownership. The claim to ownership, once put forward without dispute, lasts indefinitely. Then the right of gift develops irresistibly into a right to transfer, from donor to donee, a thing out of reach by word of mouth. And since it takes time to obtain possession of a thing at a distance, it clearly comes to pass that a future gift is regarded as valid. Meanwhile mutual gifts or exchanges have become frequent, and gifts in exchange for future services have developed into conditional future gifts, or rather conditional promises to give. It is clear that from this would arise in the most natural manner the recognition of gift contingent on the death of the donor, or, in other words, of testamentary bequest; which is the key-stone of the present system of civilisation— property in perpetuity. Temporary rights over things held by others would tend to come into existence without blurring or weakening the proprietary or permanent right of the true owner; and thus the State would come to sanction the rights of hirers and lenders. It is quite needless in this place to trace the gradual growth from the original germ—possessory right—of the innumerable forms of rights over things now sanctioned by the modern State.
Thus from absolute liberty, common to man and the lower animals, tempered by sympathies and antipathies in harmony with group-welfare, spring first possession by tacit understanding, then right of possession sanctioned by patriarchal power, which is the incipient State; this extends to recognised possession of things not within the grip or immediate resumption. (Xo hard-and-fast line can be drawn between these stages of possessory right.) Then come prescriptive ownership, together with uses to alien property, sub-uses of several degrees; condominium, which tends to split up into property in the narrow sense, and lien (not even yet fully differentiated); and finally, property in ideas and other more complex proprietary rights.
To sum up. If “rights ” is a term with two meanings, “justice,” which is used to connote that unknown principle common to all rights, must also have two meanings. Justice may be that which is common to all moral rights, or that which is common to all legal rights; and if it is the one it cannot be the other. It is not a case of the greater including the less; the two principles are disparate. Most moderns employ the term in its ethical sense. Hobbes, as we have seen, employed the term in its nomological sense, just as Austin employed the term rights; and (so far as Mr. Spencer's criticism is concerned) with the same result, namely, that of laying himself open to misrepresentation by one who does not take the trouble to ascertain beforehand in what sense the term is used. Common usage hardly justifies Hobbes's use of the word, which, at all events nowadays, is used to express a moral abstraction; and it will be well to confine it to this purpose. To contend that the true laws (those actually carried out as an invariable rule) cannot be unjust, would be paradoxical to modern ears. That they cannot be illegal is a safer proposition, and a truism withal.
We have seen that there was a time when justice was nonexistent, and by what process of evolution it was eventually brought about that certain classes of actions came to be regarded as just and others as unjust. Nothing now remains to be done but by a survey of just actions (as generally admitted at any time and place) to extract the essential common peculiarity, and the result is the connotation of justice. The definition will never be reached by laboured arguments on the model of a geometrical theorem, as may be seen from an examination of Mr. Sidgwick's able analysis of the conception in his Methods of Ethics—a work of great negative value, but absolutely barren of positive results. With ethics, as a so-called practical science—as a science of that which ought to be, in contradistinction from that which is—we have nothing to do; neither, similarly, with jurisprudence as vulgarly defined. It is in all probability the visionary and unpractical conclusions reached by jurists which have rendered that branch of inquiry so unpopular with lawyers-that is to say, with those who may be supposed to be more than other people practically acquainted with the problems contemplated. It is not jurisprudence as hitherto treated which is the necessary preliminary to the fruitful study of politics, but rather what may be termed nomology, or the inductive science of law. Before proceeding farther, it may be as well to restate what has so far been stated only by implication as to the nature and method of this science.
Nomology then is the scientific study of certain of the relations subsisting between the organised group and the units or individuals of which it is composed; or, in other words, of those sequences of which the consequent is a willed act of the group following upon an antecedent act or situation of one or some of its units. This definition of the subject is no doubt technical, and at first sight not very intelligible; but it is accurate, and strictly in harmony with the definitions of other branches of science. For the scientific study of things (which term rightly includes relations) means an inquiry into their origin, growth, development past and future, and decay; and it is well, before making use of colloquial or slipshod language, to be sure that it truly represents a clear and precise idea. At the same time, a translation of the technical into homely English is also desirable in order to avoid pedantry of diction throughout, and to dispense with circumlocution. Vulgar parlance, in fine, often serves as a short formula, and combines brevity with apparent simplicity—an appearance due, however, rather to use than to logical exactness. In plain language then, nomology treats of those acts of the State which are voluntary and which are caused by the contemplation of situations or doings of individual members of it. And indeed we may without much danger cut out the term “situation,” for by far the greater proportion of State acts are performed in response to the acts of individuals; while those due to the contemplation of their unchanged situation are at all times few, and in the case of developed societies almost entirely absent. Thus in this country at the present day the State punishes no man on account of his position, as, for instance, because he is deformed, or dark complexioned, or unfit for military service, or even leprous or otherwise loathsome. Nor does the State reward or compensate men otherwise than for a change in their position, except in case of extreme poverty, and even the poor-laws may be said to be rather a safety-valve against rebellion than a tribute to pity. Be that as it may, it is certain that the enormous majority of State acts follow upon a change: that change is brought about either by so-called natural causes (accident), or by the act of a member or members of the State. Thus, on the one hand, your house may be struck by lightning, or you may be kicked by a horse; or, on the other hand, your watch may be taken by a thief, or your ribs broken by a garotter. In the first of these cases the deplorable change in your situation will not induce the active sympathy of the State; but in the latter cases, where the change is due to the act of another person, then the State is moved to action. So that we may eliminate, as the causes of State action, not only unchanging situations, but also changes caused by accident or nature (in which terms are included all causes other than the acts of fellow-members of the State). Again, those acts of members of a state which are virtuous and worthy of approbation do not in a highly-developed society entail any regular recognition by the State, such as a reward. Where rewards for virtue or for public service are made, it is not according to law or regular rule, but according to the feeling of the moment. So that we may also eliminate such acts of the citizen as do not so arouse the anger or antipathy of the State as to entail State action. And this leaves us with no cause worth much consideration but the hateful acts of members of the community.
These group-acts being voluntary and following on the contemplation of the acts of members, it is clear that such contemplation must arouse feelings of pleasure and pain sufficient to serve as motives. When produced by regarding the sufferings or pleasures of others, these feelings are called sympathy or antipathy according as they are like or unlike the feelings regarded. Thus we may sympathise with one who is either in pain or in pleasure; so similarly we may antipathise (so to speak) with one in either situation. It is absolutely essential to conceive of the group or state as acting in accordance with the motives of sympathy and antipathy; such acts taking the form of charity, compensation, or reward, in the one case, and of spoliation, compulsory restitution, or punishment, in the other. It will be objected that this arrangement leaves no room for the whole important class of legal rights. And this is in fact so. But it will be remembered that we are at present considering the antecedents or causes of State acts, and not the effects of such acts (which may of course be regarded as included in such acts), and it will become apparent that a legal right, as such, cannot rouse the State to action. How should it? A legal right has by implication been defined as a liberty or power which owes its existence to the recognition and guaranty of the State. So long as that right exists, the power is or may be exercised: but when the power ceases to be exercised or exercisable, that right is ispo facto dead. There no longer is any such power, whether guaranteed by the State or not. Therefore a legal right cannot serve as a cause of State action.
But the change in the situation may arouse the sympathy of the State; and if that change has been caused by the act of a citizen, then such act may arouse the antipathy of the State. Or both sentiments may be aroused simultaneously. Thus the wrong may be an antecedent of State action; and the change in the situation of the injured party may likewise so serve. And, as has already been hinted, it is only, or almost only, when the misfortune is regarded as connected with the reprehensible conduct of another, that the State as a fact does take action, and then probably as much for the sake of hurting the wrong-doer as of benefiting the sufferer.
It is impossible in this brief sketch to enter upon the keenly-debated question of the nature of the difference between crime and injury, involving, as it does, the definition of crime. It may therefore be pardonable to express dogmatically the view that crimes are those acts of individual citizens which arouse the antipathy of the State for the wrong-doer sufficiently to bring about a State act of the nature of punishment; while a civil injury is an act which, without necessarily arousing any State antipathy for the agent, arouses State sympathy with another citizen who is hurt by it. The resulting group-act has for its end. not the punishment of the doer, but the rehabilitation of the sufferer; though for reasons connected with group competition, the restitution or compensation or reparation resulting from the State act does, as a rule, also operate as a punishment on the doer of the injury. For example, if one who carelessly breaks a shop-window is made to pay for a new one, it is not because his act is regarded by the State with positive antipathy, hut because sympathy with the owner of the window is sufficient to entail State action on his behalf. At the same time, it is clearly a painful thing (virtually a punishment) for the injurer to be compelled to pay.
A fundamental division in the study of the law is that which is based on this difference between crime and injury. And one of the first dynamical laws which the study of nomology will bring to light, is that which relates to the gradual absorption of the law of crimes into the law of civil injuries.
Seeing that both classes of laws tend to restrain rather than to impel, it is clear that the law as a whole may be regarded as restraint on liberty. In order to understand liberty, we must first understand law. Liberty is the complement of law. “When we know the angle, we know its complement.”
And now let us reconsider the whole question from the opposite point of view. What is liberty? We are told that in a state of nature we are all free; there is too much liberty. Take the case of the wolf and the lamb. Here we have a “state of nature ”—a state of absolute liberty. The wolf is at liberty to devour the lamb; and similarly, the lamb is at liberty to devour the wolf—if it can. The poor Indian, bound to a tree to be shot at by his neighbours, is living in a state of perfect liberty—equal liberty; for he was free to tie his neighbours to the tree and take shots at them. A state of full liberty then, is one in which the strong are free to rob the weak, and the weak are free to rob the strong. Clearly this is an unenviable state of things for the weak. The strong may call it liberty, but the weak call it anarchy. The two are identical. Then why all this outcry for liberty, and never a word for anarchy? We all know that in order to escape from the evils of liberty, men banded themselves together in groups not consciously or suddenly, but by a slow process of evolution which can be explained; and virtually agreed to suppress by united action certain forms of force. In short, the actions of individuals were brought more or less under the control of the group—Society, the State. Once created and set in motion, this club or state tended from various causes to encroach more and more on the freedom of the individuals composing it, until the restraints, the exactions, and the meddlings of the governing body at last brought about a reaction in favour of a partial return to anarchy—liberty. Certain matters and things were removed from the domain of State control, and men were no worse, but all the better for the change. The State, for various reasons connected with the structure of the ruling body, brought itself into disrepute; and each deliverance from its arbitrary interference was hailed as a clear gain to the liberties of the people. In some cases the change was for the better. In others it was again found necessary to revert to the system of State control. The reason why certain matters can safely be left to the free action of individuals, whereas others can not, may be shown in detail: but no general statement has yet been framed by which we can see at a glance beforehand whether a particular matter should be controlled by the State, or may safely be left to the unfettered action of the units. Civil liberty then may be accurately defined as the greatest possible freedom of the individual from State interference, compatible with the well-being of the social organism.
But to set up this definition as a practical rule of action is vain. It is like telling one who asks for moral guidance to keep to the path of virtue. What he wants to know is, which is the path of virtue. Similarly, the practical statesman wants to know which are the matters wherein the State must here and now exercise some kind of control in order to secure the stability of society, and which are the matters to be safely left to individual caprice.
Is it not unphilosophical, without the strongest reason, to contend that what at one time led to the elevation of mankind, namely the substitution of organised social control for antagonistic and competitive individual free efforts, at another time leads to its deterioration? —that what was once a factor in social integration, is now a factor in social disintegration? And yet this is the position taken up by the worshippers of liberty pure and simple, like Mr. Spencer and Mr. Auberon Herbert. Government is the cement which binds the units together into a complex whole. Moreover, the study of history shows us unmistakably that the increasing tendency has been and is in the direction of rendering the Government stronger and stronger in proportion to the individual forces opposed to it. Crime is followed by punishment more speedily and more certainly than it was of old. It is not the weakening but the strengthening of the State to which we must look for the amelioration of society—the subordination of the will of each to the welfare of all. And this is called socialism. Yet we do not find that even the most pronounced socialists aim at supplanting freedom of thought by the religion of the majority, or of any ruling body; nor do they aim at reviving any of the ancient laws by which the dress and food of the various classes of persons were prescribed by Government. Just as the extremest individualist would shrink from destroying Government altogether, and repealing the whole of the criminal law, so would the extremest socialist shrink from subordinating the will of the units in all matters to State control. Hence we are again driven to the conclusion that “a line must be drawn somewhere.” And the question still is, Where? Mr. Auberon Herbert draws it at the elimination of brute force, or what he calls “direct compulsion.” But on his own showing he is driven to some strange shifts in order to show how certain actions, which he and all men agree should be forbidden and punished by the State, are but forms of brute force. If one pours noxious vapours into the air, he is “constraining the faculties of those who are obliged to breathe the poisoned air against their own consent.” If one falsely libels his neighbour, he has “taken his own actions from him, and substituted other actions for them;” and so on. It is fair to say that Mr. Herbert has misgivings as to the soundness of these explanations. What is “direct compulsion” as distinct from indirect? Two monkeys in an apple-tree are apt to fall out-especially if the apples are few. Two hungry hyænas in presence of a fat carcase are apt to fight. Sheep on a barren hill-side, on the other hand, eat away as hard as they can, and starve each other to death, indirectly, as it were. They do not seem to have arrived at a perception of the elementary truth, that the simplest way to get the better of a rival is to “remove” him. Perhaps the Garnivora find themselves better armed for the fray; and besides, if successful, they are immediately rewarded with a ready-made repast. Sheep do not care for mutton. But there is another reason for their peaceful behaviour. If the weaker, or more cowardly, or more peaceable of the two hyænas, glaring at the dead turkey, could see a few lean birds lying about all round, perhaps he would leave his bigger rival in undisputed possession of the turkey. But he does not, and he is very hungry. He must fight, or starve a little longer. Now, when a strong sheep finds a weaker one browsing luxuriously on a well-covered hillock, he quietly hustles him out of the way and takes his place, while the weaker brother retires to some neighbouring spot where the herbage is short and brown. Why the stronger do not pommel the weaker out of existence once for all, is a question of sheep sociology which is not the subject of the present inquiry.
“What should he pointed out is, that savage man in the hunting stage did rise, and does rise, to the far-seeing standpoint of the tiger, and consciously or unconsciously, discerns the expedience, as an economy of force, of fighting and killing his rivals at once, rather than putting himself to the trouble of continually outstripping them in the chase day after day and year after year. One of these modes is direct, the other is indirect. In what way is the one more justifiable than the other? At all events they do fight and eliminate one another to an extent unsurpassed even by the Carnivora, so that, as a fact, few if any of them die of starvation after the manner of their more peaceable descendants. But presently again, without any very clear consciousness of what they are aiming at, they begin to discover that although it is in the main a good thing to decimate their fellow-men, it is just as well to tolerate the competition of a few of them, with a view to co-operation against more distant rivals. There can be little doubt that the germ of co-operation is to be found in the instincts of gregarious animals. Here the instinct of competition comes into conflict with the instinct of co-operation, and thus at this early stage a line has to be drawn in practice, if not in theory, between the one province and the other. During the course of social development, when co-operation becomes conscious, organised, and compulsory, we have the State. Some classes of actions pass in and out of the domain of State control many times in the course of history, and it is only after centuries of experiment that the consensus of society finally settles down (perhaps for no clearly assignable reason) in favour of leaving them permanently in one province or the other. Thus, what may be called the group-opinion in this country seems now to be settling down in favour of allowing the expression of religious and scientific beliefs to be left free from State interference. In the matter of the marriage relation, the group-opinion seems for the present pretty well settled in the opposite way. Now this group-opinion is tolerably clear and steady long before the advent of majorities to direct control of legislation, and it must therefore have a basis, a raison d'étre, though not necessarily a consciously recognised one. And that basis is surely the well-being of the group as a whole. So that, although we may not be able to tell beforehand whether any particular class of actions should or should not be brought within the domain of State control at any particular stage of social development, we can say that, whatever the group-will may be on the subject, it is actuated, consciously or unconsciously, by a striving after the welfare of that particular society as a whole. The group may be mistaken, just as an individual may err in honestly doing what he believes to be best for himself in the long run; but it is surely better and safer to trust to the group-instinct, and to have faith in the forward tendency of society, though its gait be a little zigzag, than to put it into a strait-jacket whenever its action does not seem to fit in with some preconceived theory of group-morals.
But though liberty thus turns out to be a word without any positive meaning, it is clear that certain forms of liberty are good and other forms are bad. And the distinction between them at any stage of development is between the individual liberty which is compatible with the group-welfare, and that which is not. Names are of little consequence; but the latter may be called license, and the former civil liberty. It may fairly be doubted whether there has ever been a restraint put upon individuals by even the most despotic of governments, which may not at one time or another have been a necessary and beneficent concomitant of social evolution. The power of life and death exercised by the old Roman paterfamilias over his children and slaves was probably at one time an unmixed good. And the like power of the King of the Ashantees is or was probably conducive to the group-welfare.
Is there then no discoverable rule for our practical guidance? Is there no observable tendency, no law of social development, upon which we can build up a practical working maxim of legislation? I believe there is; but it is not embodied in the formula “No Government.”
The first requisite for social integration was a strong central" power which should effectually suppress all forms of individual activity calculated to injure the group as a whole. Tribes which developed this form of organisation waxed strong, while tribes which consisted of undisciplined and disorderly numbers were crushed out in the struggle for existence. Thus the tendency to ceutralise was brought about necessarily, and to a certain extent unconsciously, just as the gregarious habits of sheep and deer have been developed without that clear prevision for group-defence which the habits seem to imply.
And just as in getting copper out of the earth we get with it many other things which are worse than useless, so in obtaining control of certain of the actions of its component members, the group got control of many other classes of actions which could not at the time be easily distinguished or disentangled. Having got our copper-ore and its surrounding rubbish to the surface, succeeding operations consist of disengaging the useless from the useful. Some of the substances, like sulphur, are very persistent, but in time the metal shines forth pure and bright. So it is with political institutions. The whole history of civilisation is one long series of operations for the disentangling of the metal from the dross. That which is good and necessary in the law—State prevention or elimination of certain classes of actions, such as murder and assault, stealing and breach of contract, nuisance and indecence, etc. etc.— becomes more and more marked, stronger and more popular. Good citizens do not chafe under it—it even ceases to be regarded as a restraint upon liberty; while that which is bad and unnecessary is from time to time expelled from the body of the law, or, as the saying is, the people wrest from their rulers one liberty after another. To take a recent instance: it is only a generation ago that the English people wrested from the Government the liberty to buy what they wanted in the cheapest markets. To-day they are struggling to throw off the last remaining fetters in the matter of full religious liberty.
This then is the observed fact, that as civilisation advances the State tends to throw off one claim after another to interfere with the free action of its members, while at the same time it becomes stronger, more regular, speedier, and more certain in performing the functions that remain to it. Where it interferes it interferes thoroughly.
At the present time the tendency is one of throwing off certain forms of State control. Therefore when we see an agitation got up for the purpose of adding to the duties of the State, we may reasonably conclude primâ facic that it is an agitation in the wrong direction. This is one practical rule. And when we see the State interfering in matters having little in common with what is becoming more and more clearly marked out as its normal province, and much in common with what has long ago been relegated to the domain of private enterprise, we are again logically justified in presuming that such matters ought to be removed from the domain of State control. Upon those who maintain a contrary opinion must rest the onus probandi, the burden of showing why these matters should be under control, while those are left to individual freedom. This then is the ground upon which individualists can take their stand. If they aim at more they are in danger of drifting into circular arguments about rights and liberty, and the like metaphysical and casuistical shallows, where their adversaries will have them at advantage.
But if this is the position to be taken up by those individual thinkers whose study of sociology has led them to perceive that the tendency is in the direction of the widest liberty compatible with social stability, while others have reached the opposite conclusion, namely, that the State is a great machine for doing things better than individual enterprise -what is to be the attitude of the bulk of non- thinkers towards these two parties? It is hardly to be expected that each labourer, before recording his vote for a parliamentary candidate, will make himself acquainted with the principles of sociology, nor is it likely that he will arrive by intuition at a more correct view of political questions than those who, even after some study, have embraced the doctrine of socialism. Even if he entrust his political conscience and his vote to a better-educated man than himself, is there any reason to hope that he will choose an individualist as his mentor rather than a State socialist? Not the least. What then is the form of government which both parties should concur in regarding as best calculated to lead in the end to that political system which they respectively regard as the best system? Probably every one believes in the one-man form of government, provided he himself is the one man. If individualists could get hold of the tiller, assuming always that they are on the right tack and in advance of the age, no doubt they would realise the ideal of good government more quickly than by trusting to the resultant of conflicting forces in a democratic society. But putting that on one side as out of the question, can they refuse to lend their support to a system of civil equality, a system towards which we are gradually approximating? In the conflict of opposing efforts that which is fittest will survive. To deny this is to despair of the race. If we have not faith in the ultimate emergence of our struggling fellow-countrymen from darkness into light, then we are trying to bring about by artificial means what will not come by nature. Those who lack faith in the destiny of the race must do what they can to keep afloat, so long as may be, by a process of patching and tinkering, and of a judicious drawing upon the group-capital for the requirements of the present generation. But those who have that faith must learn to look without dread on the temporary aberrations of the people. They must bear in mind that throughout history it has marched steadily forward, not indeed without turnings and backslidings, but still, in the long run, forward on the path of civilisation; and that there is ingrained in the very nature of civilised man an inherited love of fairness, and an instinctive belief in the wisdom of proportioning satisfaction to intelligent effort, which will not easily be eradicated. It is this belief which underlies respect for property, and not any sublimated à -priori “warrant” whatsoever. Thus every man who has faith in the race must ascertain by observation the tendencies in the structural development of the State, and instead of struggling against those tendencies—instead of stemming the advancing tide with his mop-he must welcome such reforms as history points to in the confident expectation that any temporary concomitant ills will be more than counterbalanced by future gains. If his own ideal conclusions on matters political, scientific, or æsthetic are correct, they will be realised by trusting to the unimpeded advance of the democracy. If they are wrong, he will rejoice to think that his efforts will be cancelled by those of better men. Be he individualist or socialist he will loyally accept the verdict of the people.
Personal liberty is the final outcome of social evolution, and not the cause. The wider the area, the greater the number and diversity of conflicting interests, the nigher will be the advent of individualism. As each class and each individual tights for his own hand, he will find that the lowest price at which he can obtain his own greatest freedom is the granting of equal liberty to others in certain departments of activity which experience, and experience alone, can demarcate.
Whether we regard the question from a positive or a negative point of view—as the science of law or the science of liberty—we shall find that, in order to be of any value, our work must take the form of an inductive science; and it must deal with the facts of social organisation, and not with high-sounding sentiments, however sublimely conceived—with the “Naturrecht ” of the school of Savigny, not with the “droit naturel ” of the school of Eousseau. Until this is conceded, we can have no stable foundation on which to base a sound and progressive individualism.
Since liberty is the complement of law, it is impossible to understand liberty without understanding law. If the actions of individuals were so controlled and subordinated to the group as to leave no liberty whatever, we should have a state of absolute socialism. This is actually the case with the individual cells or groups of cells which together constitute the human body. The cells have, so to speak, “lost their identity.” The welfare of the human being, or other highly-developed animal, is alone the end consciously aimed at and unconsciously approached, without reference to the separate interests of the cells of which he is made up. This is absolute socialism, and we must therefore beware of reasoning too much concerning social matters by analogy. If, on the other hand, the welfare of the group as a whole is absolutely ignored, and there is no combined or organised action to interfere with the separate interests of the individuals composing it, then we have absolute anarchy. This is precisely the case with many races of wild animals, especially the Caruivora. The welfare of the race as a group or whole is ignored, and the units alone are considered. Thus we may take a tiger as representing in his person absolute socialism and absolute anarchy—socialism in his internal relations, anarchy in his external relations. If we take tiger-kind as the whole, and tigers as the units of which it is made up, we see that there is an anarchic relation between the whole and the parts. If we take a tiger as the whole and the cells (which in the remote past were individuals having separate feelings and interests) as the units of which it is made up, we see that there is a socialistic relation between the whole and the parts.
The whole history of civilisation is the history of a struggle to establish a relation between society and its units, between the whole and its parts, which is neither absolute socialism nor absolute anarchy; but a state in which, by action and reaction of each upon each, such an adaptation shall take place, that the welfare of the whole and that of the units shall eventually become coincident and not antagonistic. Such is the problem of civilisation, of the development of the hyper-organism; integration without impairing the individuality of the component units. The final result to which we shall ever approximate, but never attain, will be perfect civil liberty, or the greatest liberty which is compatible with the utmost wellbeing of society as a whole; and perfect law, or such subordination of the individual will to that of society as may be compatible with the utmost wellbeing of the individual.
The outcome of these reflections seems to be, that just as from parental sympathy springs State interference, which when developed casts off every shred of sympathy and antipathy, even to the extent of awarding to Shy lock his pound of flesh, so from special interference, through a long process of generalisation and friction, springs law, which in its final development is as incommensurable in terms of justice as is an oak-tree in terms of gravitation and molecular repulsion. Growing out of justice, as the living, thinking animal grows (or grew) out of inorganic matter, it cannot be resolved by man into its component elements. And the process is going on around us to-day.
While then we may say that the law is a fairly coherent body of rules prohibiting the exercise of certain kinds of force (superior faculties) in certain classes of cases, it is not possible to say offhand, or to discover on paper, what those kinds of force are, or what are the classes of cases in which their exercise is prohibited. This can only be done by a careful and exhaustive examination of the laws themselves, by subjecting them to a searching analysis, by a scientific instead of a popular and superficial classification of their matter, and in short by a process of rigid reduction.
Thus are we brought to a position the very opposite of that taken up by those who would test every law by the standard of justice. We have reached the standpoint of Ben-tham, who cared nothing for vapourings about justice, but who would test every law by its effects on the welfare of society. (It is true he substituted the welfare of the greatest number for the welfare of the group; but this is immaterial here.) We are in the same boat with those who, rejecting the appeal to abstract virtue as a test of the goodness or fitness of their actions, substitute the ultimate welfare of the individual. A practical test is as far from view as when we started. Hence the persistence with which the need should be insisted on for the thorough study of law in the concrete, and the discovery, not the manufacture, of the true statical laws which are actually operative in societies; of their tendency, and of the dynamical laws of their change and development. It is by the discovery of these laws that we shall find ourselves in possession of true and useful practical guides through the labyrinth of legislation and politics. We shall arrive at rules which are neither so simple as that enjoining an equal deal at cards, nor so vague and inapplicable as that which requires us to follow the effects of an action, down through its million ramifications, to the utmost ends of time.
The art of politics is the application of the science of nomology to the concrete; just as engineering is the application to human wants of the science of mechanics, and as navigation is one of the arts based on the science of astronomy. Until we have mastered the science we shall make but little progress with the corresponding art. Till Adam Smith laid the foundations of modern economics the fiscal policy of the Government was a game of perpetual see-saw between rival crotcheteers. All was rule of thumb. So is it to-day with the great question of liberty and law. Yesterday we were all free-traders and advocates of “let be”: to-day we are on the highroad to socialism; to-morrow the Fates only know where we shall be. The only cure for this policy of drift is a patient and intelligent study of nomology, whereby middle principles of practical application will be brought to light, and the absurd fallacies of social doctrinaires put to flight for ever.