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 24.

The Constitution of the State

349. Difference of ends usually implies difference of means. lt is unlikely that a structure best fitted for one purpose will be best fitted for another purpose.

If to preserve the lives of its units, and to maintain that freedom to pursue the objects of life which is ordinarily possessed by unconquered peoples, a society has to use its corporate action chiefly for dealing with environing societies; then its organization must be such as will bring into play the effectually combined forces of its units at specific times and places. It needs no proof that if its units are left to act without concert they will be forthwith subjugated; and it needs no proof that to produce concerted action, they must be under direction. Conformity to such direction must be insured by compulsion; the agency which compels must issue consistent orders; and to this end the orders must emanate from a single authority. Thacing up the genesis of the militant type (see Principles of Sociology, secs. 547—61) leads irresistibly to the conclusion that for efficient external action of a society against other societies, centralization is necessary; and that establishment of it becomes more decided the more habitual is such external action. Not only does the fighting body itself become subject to despotic rule, but also the community which supports it. The will of the aggregate, acting through the governing power it has evolved, overrides and almost suppresses the wills of its individual members. Such rights as they are allowed they hold only on sufferance.

Hence so long as militancy predominates, the constitution of the state must be one in which the ordinary citizen is subject either to an autocrat or to an oligarchy out of which an autocrat tends continually to arise. As we saw at the outset, such subjection, with its concomitant loss of freedom and contingent loss of life, has a quasi-ethical warrant when necessitated by defensive war. The partial suspension of rights is justifiable when the object is to prevent those complete obliterations and losses of them which result from death or subjugation. Ordinarily, however, the militant type of society is developed more by offensive wars than by defensive wars; and where this is the case, the accompanying constitution of the state has no ethical warrant. However desirable it may be that the superior races should conquer and replace the inferior races, and that hence during early stages aggressive wars subserve the interests of humanity; yet, as before said, the subserving of such interests after this manner must be classed with the subserving of life at large by the struggle for existence among inferior creatures–a species of action of which ethics takes no cognizance.

Here, that which we have to note is that when the surrounding conditions are such that a society is endangered bodily by other societies, its required coercive constitution is one which, far though it may be from the absolutely right, is yet relatively right–is the least wrong which circumstances allow.

350. When, ignoring intermediate forms, we pass from the militant type to the industrial type, considered as fully developed, we see that the required constitution of the state is quite different. To maintain the conditions under which life and its activities may be carried on, is in either case the end; but to maintain these conditions against external enemies, and to maintain them against internal enemies, are two widely unlike functions calling for widely unlike appliances. Observe the contrasts.

In the one case the danger is directly that of the community as a whole and indirectly that of individuals; while in the other case it is directly that of individuals and indirectly that of the community as a whole. In the one case the danger is large, concentrated, and in its first incidence local; while in the other case the dangers are multitudinous, small, and diffused. In the one case all members of the community are simultaneously threatened with injury; while in the other case the injury threatened or experienced is now of one person, now of another; and the citizen at one time aggressed upon is at another time an aggressor. And while the vast evil to be dealt with in the one case is, when warded off, no longer to be feared for some time at least; the evils to be dealt with in the other case, though small, are unceasing in their occurrence. Evidently, then, having functions so unlike, the political appliances employed should be unlike.

For preventing murders, thefts, and frauds, there does not need an army; and an army, were it used, could not deal with transgressions which are scattered everywhere. The required administration must be diffused as are the wrongdoings to be prevented or punished; and its action must be continuous instead of being occasional. But in the absence of large combined forces required for military purposes, there does not need that coercive rule by which alone combined forces can be wielded. Contrariwise, there needs a rule adapted for maintaining the rights of each citizen against others, and which is also regardful of those rights in its own dealings with citizens.

What is the appropriate constitution of the state? At first sight it seems that since every citizen (supposing him not to be himself an aggressor) is interested in the preservation of life and property, the fulfillment of contracts, and the enforcement of all minor rights, the constitution of the state should be one in which each citizen has an equal share of power with his fellows. It appears undeniable that if, in pursuance of the law of equal freedom, men are to have equal rights secured to them, they ought to have equal powers in appointing the agency which secures such rights.

In the last chapter but one it was shown that this is not a legitimate corollary; and various illustrations made it clear that the approved means did not achieve the desired end. Here we have to observe why they are not likely to achieve them.

351. Of truths concerning human conduct none is more certain than that men will, on the average, be swayed by their interests, or rather by their apparent interests. Government is itself necessitated by the general tendency to do this; and every act of Parliament makes provisions to exclude its injurious effects. How universally operative and how universally recognized such tendency is, every will, every lease, every contract proves.

The working of this or that form of government is inevitably determined by this tendency. Of those who form parts of the political agency, and of those who directly or indirectly appoint them, it must be true, as of all others, that they will be swayed by their apparent interests. The laws of every country furnish proofs without end. And history having thus conclusively shown that those who have predominant power will use it to their own advantage, there has been drawn the inference that only by endowing all with power can the advantage of all be secured. But the fallacy is becoming obvious.

A generation ago, while agitations for the wider diffusion of political power were active, orators and journalists daily denounced the “class-legislation” of the aristocracy. But there was no recognition of the truth that if, instead of the class at that time paramount, another class were made paramount, there would result a new class legislation in place of the old. That it has resulted every day proves. If it is true that a generation ago landowners and capitalists so adjusted public arrangements as to ease themselves and to press unduly upon others, it is no less true that now artisans and laborers, through representatives who are obliged to do their bidding, are fast remolding our social system in ways which achieve their own gain through others' loss. Year after year more public agencies are established to give what seem gratis benefits, at the expense of those who pay taxes, local and general; and the mass of the people, receiving the benefits and relieved from the cost of maintaining the public agencies, advocate the multiplication of them.

It is not true, then, that the possession of political power by all ensures justice to all. Contrariwise, experience makes obvious that which should have been obvious without experience, that with a universal distribution of votes the larger class will inevitably profit at the expense of the smaller class. Those higher earnings which more efficient actions bring to the superior, will not be all allowed to remain with them, but part will be drafted off in some indirect way to eke out the lower earnings of the less diligent or the less capable; and in so far as this is done, the law of equal freedom must be broken. Evidently the constitution of the state appropriate to that industrial type of society in which equity is fully realized, must be one in which there is not a representation of individuals but a representation of interests. For the health of the social organism and the welfare of its members, a balance of functions is requisite; and this balance cannot be maintained by giving to each function a power proportionate to the number of functionaries. The relative importance of the different functions is not measured by the number of units occupied in discharging them; and hence the general welfare will not be achieved by giving to the various parts of the body politic, powers proportionate to their sizes.

352. Whether hereafter there will arise a form of society in which equal political powers may be given to individuals, without giving to classes powers which they will misuse, is an unanswerable question. It may be that the industrial type, perhaps by the development of cooperative organizations, which theoretically. though not at present practically, obliterate the distinction between employer and employed, may produce social arrangements under which antagonistic class interests either will not exist, or will be so far mitigated as not seriously to complicate matters. And it may be that in times to come men's regard for others' interests will so far check undue pursuit of their own interests, that no appreciable class legislation will result from the equal distribution of political powers. But the truth we have to recognize is that with such humanity as now exists, and must for a long time exist, the possession of what are called equal political rights will not ensure the maintenance of equal rights properly so-called.

Moreover, that constitution of the state which relative ethics justifies must, for another reason, diverge widely from that justified by absolute ethics. The forms of government appropriate to existing civilized societies must be transitional forms. As implied throughout the argument, the constitution of a state devoted to militancy must be fundamentally unlike the constitution of a state devoted to industrialism; and during the stages of progress from the one to the other, mixed forms of constitution have to be passed through–variable forms which are adjusted now to the one set of requirements, now to the other, as contingencies determine. For, as I have shown elsewhere (Principles of Sociology, secs. 547-75), if we exclude those nonprogressive types of mankind which have evolved social organizations that are no longer changeable, and contemplate the more plastic types still evolving, individually and socially we see that increase in either kind of social action begins soon to produce change of structure.

We must therefore conclude that there is a quasi-ethical warrant for these mixed constitutions of the state which are appropriate to these mixed requirements. To maintain the conditions under which individual life and its activities may be carried on, being the supreme end; and maintenance of these conditions being endangered, now by masses of external enemies and now by single internal enemies; it results that there is a quasi-ethical justification for such political constitution as is best adapted to meet both kinds of dangers at any particular time; and there must be tolerated such unfitness for the one end as is necessitated by fitness for the other.

353. The title of the chapter covers a further question, which must not be passed over–the use of political power by women. Already we have concluded that in militant societies, and partially militant societies, the possession of the franchise by women is not strictly equitable: they cannot justly have equal powers unless they have equal responsibilities. But here, supposing that with the cessation of militancy this obstacle should disappear, we have to ask whether, in that case, the giving of votes to women would be expedient. l say expedient, because, as we have seen, it is not a question of right in the direct and simple sense. The question is whether rights, properly so-called, are likely to be better maintained if women have votes than if they have not. There are some reasons for concluding that maintenance of them would be less satisfactory rather than more satisfactory.

The comparative impulsiveness of women is a trait which would make increase of their influence an injurious factor in legislation. Human beings at large, as at present constituted, are far too much swayed by special emotions, temporarily excited, and not held in check by the aggregate of other emotions; and women are carried away by the feelings of the moment still more than men are. This characteristic is at variance with that judicial mindedness which should guide the making of laws. Freedom from passions excited by temporary causes or particular objects, is an obvious prerequisite to good legislation. This prerequisite is at present but imperfectly fulfilled, and it would be more imperfectly fulfilled were the franchise extended to women.

This moral difference is accompanied by a kindred intellectual difference. Very few men, and still fewer women, form opinions in which the general and the abstract have a due place. The particular and the concrete are alone operative in their thoughts. Nine legislators out of ten, and ninety-nine voters out of a hundred, when discussing this or that measure, think only of the immediate results to be achieved–do not think at all of the indirect results, or of the effect which the precedent will have, or of the influence on men's characters. Had women votes, this absorption of consciousness in the proximate and personal to the exclusion of the remote and impersonal, would be still greater; and the immense mischiefs at present produced would be augmented.

At the outset it was shown that there is a radical opposition between the ethics of the family and the ethics of the state, and that introduction of either into the sphere of the other is injurious–fatal, indeed, if extensive and continuous. Character is that which eventually determines conduct: the intelligence joined with it simply serving as a minister, procuring satisfactions for those feelings which make up the character. At present, both men and women are led by their feelings to vitiate the ethics of the state by introducing the ethics of the family. But it is especially in the nature of women, as a con-comitant of their maternal functions, to yield benefits not in proportion to deserts but in proportion to the absence of deserts–to give most where capacity is least. The love of the helpless, which may serve as a general description of the parental instinct, stronger in women than in men, and swaying their conduct outside the family as well as inside more than it sways the conduct of men, must in a still greater degree than in men prompt public actions that are unduly regardful of the inferior as compared with the superior. The present tendency of both sexes is to contemplate citizens as having claims in proportion to their needs–their needs being habitually proportionate to their demerits; and this tendency, stronger in women than in men, must, if it operates politically, cause a more general fostering of the worse at the expense of the better. Instead of that maintenance of rights which, as we have seen, is but a systematic enforcement of the principle that each shall receive the good and evil results of his own conduct, there would come greater and more numerous breaches of them than at present. Still more than now would the good which the superior have earned be forcibly taken away from them to help the inferior; and still more than now would evils which the inferior have brought upon themselves be shouldered on to the superior.

Another trait of nature by which women are distinguished, arises by adjustment, not to the maternal relation but to the marital relation. While their feelings have become molded into special fitness for dealing with offspring, they have also become adjusted to an appropriate choice of husbands–so far at least as conditions have allowed them to choose. Power, bodily or mental, or both, is, and ever has been, that masculine trait which most attracts women; and by doing so furthers multiplication to the stronger. Varieties in which this instinctive preference was least marked must, other things equal, have ever tended to disappear before other varieties. Hence in women a worship of power under all its forms; and hence a relative conservatism. Authority. no matter how embodied–politically, ecclesiastically. or socially–sways women still more than it sways men. Evidence of this is furnished by societies of all grades. Sanctified by the injunctions of ancestry, customs are adhered to by women more than by men, even where instinctive feelings might have been expected to produce an opposite effect; as instance the adhesion by the women among the Juangs to something less than Eve's dress after the men had taken to loincloths. Religious fanaticism, which is the expression of extreme subordination to a power conceived as supernatural, has always been carried further by women than by men. The difference was remarked among the Greeks; observers have noticed it in Japan; instances are supplied by the Hindoos; and it is at present manifest throughout Europe. This sentiment, then, which power and the trappings of power under all forms excite, must, if votes were given to women, strengthen all authorities, political and ecclesiastical. Possibly it may be thought that under present conditions a conservative influence of this kind would be beneficial; and did there not exist the trait above described, this might be so. But cooperating with the preference for generosity over justice, this power worship in women, if allowed fuller expression, would increase the ability of public agencies to override individual rights in the pursuit of what were thought beneficent ends.

Whether in time to come, when the existing political complications caused by our transitional state have disappeared, such evils would result, is another question. It is quite possible that the possession of votes by women would then be beneficial.

But the immediate enfranchisement of women is urged on the ground that without it they cannot obtain legal recognition of their equitable claims. Experience does not countenance this plea. During the last thirty years various disabilities of women have been removed with but little resistance from men. Comparing the behavior of men to men with the behavior of men to women, it is manifest that in modern times the sentiment of justice has been more operative in determining the last than in determining the first. Ill-treated classes of men have had to struggle far longer before they obtained from the classes who ill treated them, the concessions they demanded, than women as a class have had to struggle before obtaining from men as a class, the various freedoms they asked. They have obtained these without political power; and there is no reason to doubt that such further injustice as they complain of–chiefly in respect of the custody of children–may be similarly removed without making the gigantic constitutional change which some of them seek.

That this probability amounts, indeed, to certainty. will be manifest if we look at the expectations in their simplest form. When it is openly contended that women must have the suffrage because otherwise they cannot get from men their just claims, it is practically contended that men will concede the suffrage knowing that with it they concede these claims, but will not concede the claims by themselves. A, the suffrage, involves the establishment of B, the claims; and the proposition is that though men will surrender A plus B, they will not surrender B by itself!

354. Under the head of the constitution of the state, something must be said concerning the distribution of state burdens as well as the distribution of state power. Clearly there is as much reason for insisting on equitable sharing in the costs of government as for equitable sharing in the direction of government.

In the abstract the question does not appear to present any great difficulty. The amounts individually paid should be proportionate to the benefits individually received. So far as these are alike, the burdens borne should be alike; and so far as they are unlike, the burdens borne should be unlike. Hence arises a distinction between the public expenditure for protection of persons and the public expenditure for protection of property. As life and personal safety are, speaking generally, held equally valuable by all men, the implication appears to be that such public expenditure as is entailed by care of these should fall equally on all. On the other hand, as the amounts of property possessed at the one extreme by the wage earner and at the other extreme by the millionaire differ immensely, the implication is that the amounts contributed to the costs of maintaining property rights should vary immensely–should be proportionate to the amount of property owned, and vary to some extent according to its kind. In respect to the costs of internal protection an approximately just distribution seems indicated by these considerations; but in respect of external protection a just distribution is more difficult to conceive. Invasion endangers both property and person. The citizen may be robbed, or he may be injured in body, or he may lose more or less freedom. A just distribution depends on the relative values put by each on these; and no expression of such values, either special or general, seems possible. Hence we must say that while militancy, or partial militancy. continues, nothing more than a rude approximation to a just incidence of public burdens can be made.

One conclusion, however, is clear. State burdens, however proportioned among citizens, should be borne by all. Every one who receives the benefits which government gives should pay some share of the costs of government, and should directly and not indirectly pay it.

This last requirement is all-important. The aim of the politician commonly is to raise public funds in such ways as shall leave the citizen partly or wholly unconscious of the deductions made from his income. Customs duties and excise duties are not unfrequently advocated for the reason that through them it is possible to draw from a people a larger revenue than could be drawn were the amount contributed by each demanded from him by the tax gatherer. But this system, being one which takes furtively sums which it would be difficult to get openly, achieves an end which should not be achieved. The resistance to taxation, thus evaded, is a wholesome resistance; and, if not evaded, would put a proper check on public expenditure. Had each citizen to pay in a visible and tangible form his proportion of taxes, the sum would be so large that all would insist on economy in the performance of necessary functions and would resist the assumption of unnecessary functions; whereas at present, offered as each citizen is certain benefits for which he is unconscious of paying, he is tempted to approve of extravagance; and is prompted to take the course, unknowingly if not knowingly dishonest, of obtaining benefits at other men's expense.

During the days when extensions of the franchise were in agitation, a maxim perpetually repeated was–“Taxation without representation is robbery.” Experience has since made it clear that, on the other hand, representation without taxation entails robbery.