The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to Volume Ii
• Preface to Part Iv (when First Issued Separately)
• Part IV.: The Ethics of Social Life: Justice
• Chapter 1.: Animal Ethics
• Chapter 2.: Subhuman Justice
• Chapter 3.: Human Justice
• Chapter 4.: The Sentiment of Justice
• Chapter 5.: The Idea of Justice
• Chapter 6.: The Formula of Justice
• Chapter 7.: The Authority of This Formula
• Chapter 8.: Its Corollaries
• Chapter 9.: The Right to Physical Integrity
• Chapter 10.: The Rights to Free Motion and Locomotion
• Chapter 11.: The Rights to the Uses of Natural Media
• Chapter 12.: The Right of Property
• Chapter 13.: The Right of Incorporeal Property
• Chapter 14.: The Rights of Gift and Bequest
• Chapter 15.: The Rights of Free Exchange and Free Contract
• Chapter 16.: The Right to Free Industry
• Chapter 17.: The Rights of Free Belief and Worship
• Chapter 18.: The Rights of Free Speech and Publication
• Chapter 19.: A Retrospect With an Addition
• Chapter 20.: The Rights of Women
• Chapter 21.: The Rights of Children
• Chapter 22.: Political Rights–so-called
• Chapter 23.: The Nature of the State
• Chapter 24.: The Constitution of the State
• Chapter 25.: The Duties of the State
• Chapter 26.: The Limits of State Duties
• Chapter 27.: The Limits of State Duties–continued
• Chapter 28.: The Limits of State Duties–continued
• Chapter 29.: The Limits of State Duties–concluded
• Part V.: The Ethics of Social Life: Negative Beneficence
• Chapter 1.: Kinds of Altruism
• Chapter 2.: Restraints On Free Competition
• Chapter 3.: Restraints On Free Contract
• Chapter 4.: Restraints On Undeserved Payments
• Chapter 5.: Restraints On Displays of Ability
• Chapter 6.: Restraints On Blame
• Chapter 7.: Restraints On Praise
• Chapter 8.: The Ultimate Sanctions
• Part VI.: The Ethics of Social Life: Positive Beneficence
• Chapter 1.: Marital Beneficence
• Chapter 2.: Parental Beneficence
• Chapter 3.: Filial Beneficence
• Chapter 4.: Aiding the Sick and the Injured
• Chapter 5.: Succor to the Ill-used and the Endangered
• Chapter 6.: Pecuniary Aid to Relatives and Friends
• Chapter 7.: Relief of the Poor
• Chapter 8.: Social Beneficence
• Chapter 9.: Political Beneficence
• Chapter 10.: Beneficence At Large
• Appendices
• Appendix A.: the Kantian Idea of Rights
• Appendix B.: the Land Question
• Appendix C.: The Moral Motive
• Appendix D.: Conscience In Animals
• Appendix E.: Replies to Criticisms
• References

CHAPTER 9.

The Right to Physical Integrity

284. For using a title that is so apparently pedantic, my defense must be that no other adequately expresses everything to be included in the chapter. The physical integrity which has to be claimed for each, may at the one extreme be destroyed by violence, and at the other extreme interfered with by the nausea which a neighboring nuisance causes.

It is a self-evident corollary from the law of equal freedom that, leaving other restraints out of consideration, each man's actions must be so restrained as not directly to inflict bodily injury, great or small, on any other. In the first place, actions carried beyond this limit imply the exercise on one side of greater freedom than is exercised on the other, unless it be by retaliation; and we have seen that, as rightly understood, the law does not countenance aggression and counteraggression. In the second place, considered as the statement of a condition by conforming to which the greatest sum of happiness is to be obtained, the law forbids any act which inflicts physical pain or derangement.

285. Only for form's sake is it needful to specify under this general head, the right to life and the consequent interdict on murder. This, which in civilized communities is regarded as the blackest of crimes, may be considered as unconsciously, if not consciously, thus regarded because it is the greatest possible breach of the law of equal freedom; for by murder another's power to act is not merely interfered with but destroyed. While, however, it is not needful to insist on this first deduction from the law of equal freedom, that life is sacred, it will be instructive to observe the successive steps towards recognition of its sacredness.

Noting as an extreme case that of the Fijians, among whom murder is, or was, thought honorable, we may pass to the many cases furnished by savage tribes who kill their old, diseased, and useless members. Various of the early European peoples, too, did the like. Grimm tells us that among the Wends “the children killed their aged parents, blood and other relatives, also those who no longer were fit for war or work, and then cooked and ate them, or buried them alive.” “The Herulians, also, killed their aged and sick. . . . Later traces of the custom of killing the aged and sick are found in North Germany.”

Apart from this deliberate destruction of incapable members of the tribe, which very generally had the excuse that it was needful for preservation of the capable, there has habitually existed, in primitive social groups, no public recognition of murder as a crime. Of the Homeric Greeks Grote writes that the murderer had to dread only “the personal vengeance of the kinsmen and friends.” These might compound for the offense by a stipulated payment. All that the chiefs did in such cases was to see that the bargains were fulfilled. In later times throughout Europe, the same ideas, sentiments, and practices prevailed. It was not so much the loss of his life by the man slain which constituted the evil, as the injury done to his family or clan: this was the wrong which had to be avenged or compounded for. Hence it was a matter of comparative indifference whether the actual murderer was killed in return, or whether some guiltless member of the murderer's kindred. And this, too, was probably a part cause for the gradation in the compensations to be made for murders according to the rank of the murdered–compensations which, after being in earlier stages matters of private agreement, came presently to be established by law. And to how small an extent the conception of the sacredness of life had grown up, is seen in the fact that the slave had no wergeld or bot: his lord could slay him if he pleased, and if slain by some one else his value as a chattel only could be demanded.

An unobtrusive step towards recognition of murder as something more than a private offense, took place when part of the money paid in compensation went to the king: the idea being, in considerable measure, still the same; since destruction of a subject was destruction of a portion of the king's power over subjects, and did, in effect, diminish the strength of his society for fighting purposes. But the continuance of the different fines adjusted to different ranks, shows how little the intrinsic criminality of murder was recognized; and this is further shown by the distinction which benefit of clergy made. Up to the time of the Plantagenets a murderer “who knew how to read escaped from nearly all punishment.”

Merely noting that a great step was made under the Commonwealth, when “benefit of clergy was to be abolished absolutely”; when, “by a separate Act, wager of battle was abolished”; and when “the same Act punished dueling with extraordinary severity” (legislation which recognized the intrinsic guilt of murder) we may come at once to modern times. No class distinction can now be pleaded in mitigation, and no condonation under any form is possible.

The course of this progress presents three significant facts. Maintenance of life is in the earliest stages an entirely private affair, as among brutes; and to the taking of it there is attached scarcely more idea of wrong than among brutes. With growing social aggregation and organization, the taking of life comes to be more and more regarded as a wrong done, first to the family or the clan, and then to the society; and it is punished rather as a sin against society than as a sin against the individual. But eventually, while there is retained the conception of its criminality as a breach of the law needful for social order, there becomes predominant the conception of its criminality as an immeasurable and irremediable wrong done to the murdered man. This consciousness of the intrinsic guilt of the act, implies a consciousness of the intrinsic claim of the individual to life: the right to life has acquired the leading place in thought.

286. The connection between such degree of bodily injury as causes death, and such degree of bodily injury as causes more or less incapacity for carrying on life, has all along been too obvious to escape recognition. Hence, with that tacit assertion of the right to physical integrity which is implied by the punishment of murder, there has gone such further tacit assertion of it as is implied by punishments for inflicting mutilations, wounds, &c. Naturally. too, there has been a certain parallelism between the successive stages in the two cases; beginning with that between life for life and “an eye for an eye.

When, after the early stage in which retaliation was entirely a private affair, there was reached the stage in which it came to be an affair concerning the family or clan, we see that as the clan avenged itself by taking from an offending clan a life to balance the life it had lost, so by insisting on a substituted, if not an actual, equivalent, it sought to avenge an injury which was not fatal. This is shown by the fact that after the system of money damages had grown up, the price, not only for a life but for a limb, was to be paid by the family or house of the wrongdoer to the family or house of the wronged. A further fact implies this same conception. With the Germanic tribes and the early English, along with compensations for homicide, varying according to rank, there went “as large a scheme of compensations for minor injuries,” also according to rank. The implication in both cases is that the damage to the family or clan was dominant in thought, rather than the damage to the individual. The like held in ancient Russia.

As fast as the social life of smaller groups or clans, merged into the social life of larger groups or nations, the idea of injury to the nation began to replace that of injury to the clan; and at first part, and eventually the whole, of the fine or amercement payable by one who had committed an assault, went to the state; and this usage still survives. Though in cases of personal violence the current consciousness is now mainly occupied by sympathy with the injured man, and reprobation of the offender for having inflicted pain and accompanying mischief, yet the state appropriates the condonation money. and leaves the sufferer to bear the evil as best he may.

But in modern days we see growth of a higher conception, in the awarding of compensations for injuries which have resulted from negligence. The claim of the citizen against a fellow citizen, not only for bodily damage voluntarily inflicted on him but for bodily damage caused by careless actions or inactions, dates back some centuries at least. Much more extensive applications of the principle have of late years been made; such as those which render a railway company liable for injuries caused by imperfection of its appliances or inattention of its officials, and private employers for those entailed on workmen by defective apparatus, by lack of safeguards, or by operations involving risk. These developments of law imply higher appreciations of the claims of the individual to physical integrity; and the fact that the person or company responsible for the mischief done, is called upon to pay damages to the sufferer and not to the state, is one of the proofs that the claim of the individual to physical integrity, now occupies in the general consciousness a greater space than the thought of social detriment done by disregard of such claim.

Nor must we omit to note, in proof of the same thing, that what we may call the sacredness of the person, has in our days been further insisted on by laws which regard as assaults, not only such acts of violence as cause slight injuries, but such as are constituted by intentional pushes or other forcible interferences with another's body, or even by threatening uses of the hands without actual contact; and laws which also make a kiss, taken without consent, a punishable offense.

287. One more trespass against physical integrity, not in early times thought of as such, but held to be such in our times, is that which consists in the communication of disease.

This is a kind of trespass which, though grave, and though partly recognized in law, occupies neither in law nor in the general conscience so distinct a place as it should do: probably because of the indefiniteness and uncertainty of the mischievous results. Here is a father who fetches home his boy suffering from an epidemic disease, regardless of the fact that the railway carriage in which they travel may not improbably infect others; and here is a mother who asks the doctor whether her children have sufficiently recovered from scarlet fever to go to school, and proposes to send them notwithstanding the intimation that they may very possibly convey the disease to their school fellows. Such acts are indeed, punishable; but they so commonly pass without detection, and the evils likely to be inflicted are so faintly conceived, that they are scarcely thought of as offenses; though they really ought to be regarded as something like crimes–if not actual crimes, then potential crimes.

For let us remember that there is now recognized by law and by public conscience, the truth that not only actual physical mischiefs to others but also potential physical mischiefs to others, are flagitious. We have reached a stage in which the body of each person is so far regarded as a territory inviolable by any other person, that we rank as offenses all acts which are likely to bring about violation of it.

288. Thus it is undeniable that what we see to be the primary corollary from the formula of justice, has been, in the course of social evolution and the accompanying evolution of man's mental nature, gradually establishing itself. Prolonged converse with the conditions under which alone social life can be harmoniously carried on, has slowly molded sentiments, ideas, and laws, into conformity with this primary ethical truth deducible from those conditions.6

That which it here concerns us specially to note, is that murder, manslaughter, mutilation, assault, and all trespasses against physical integrity down to the most trivial, have not become transgressions in virtue of laws forbidding them, nor in virtue of interdicts having a supposed supernatural origin; but they have become transgressions as being breaches of certain naturally originated restraints.

It remains only to say that while, in a system of absolute ethics, the corollary here drawn from the formula of justice is unqualified, in a system of relative ethics it has to be qualified by the necessities of social self-preservation. Already we have seen that the primary law that each individual shall receive and suffer the benefits and evils of his own nature, following from conduct carried on with due regard to socially imposed limits, must, where the group is endangered by external enemies, be modified by the secondary law, which requires that there shall be such sacrifice of individuals as is required to preserve, for the aggregate of individuals, the ability thus to act and to receive the results of actions. Hence, for purposes of defensive war, there is justified such contingent loss of physical integrity as effectual defense of the society requires: supposing, always, that effectual defense is possible. For it would seem to be an implication that where the invading force is overwhelming, such sacrifice of individuals is not justified.

We see here, indeed, as we shall see throughout all subsequent chapters, that the requirements of absolute ethics can be wholly conformed to only in a state of permanent peace; and that so long as the world continues to be occupied by peoples given to political burglary, the requirements of relative ethics only, can be fulfilled.

[[6]]A barrister who has devoted much attention to the evolution of law, has obliged me by checking the statements which preceding and succeeding chapters contain respecting laws, past and present. To the above paragraph he has appended the following note: The late Clitheroe abduction case which establishes that a man may not forcibly detain his own wife, is an interesting example of this doctrine. In this case the right of married women to physical liberty has only just been established by a Court of Appeal; and that against the opinion of two very able judges of 1st instance, who thought that the old law was otherwise. The punishment by justices of School-board teachers, for the use of the rod on the boys, is another example of this growing feeling, which molds the law while assuming only to administer it.