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 25.

The Duties of the State

355. Whether or not they accept the ethical principles set forth in the opening chapters of this part, most readers will agree with the practical applications of them made in subsequent chapters. Some, indeed, are so averse to deductive reasoning that they would gladly reject its results, even though they are verified by induction, could they do so. But the results in this case reached deductively, have one after another proved to be beliefs empirically established among civilized men at large, and, with increasing experience, have been more and more authoritatively formulated in law; so that rejection is scarcely practicable.

But here we are about to enter on topics concerning which there are divers opinions. To avoid raising prejudices against the conclusions reached, as being reached by a disapproved method, it will be best to proceed by a method which cannot be disapproved; and which, however insufficient taken by itself, all must admit to be good as far as it goes. Let us, then, commence inductively our inquiries concerning the duties of the state.

If the admired philosopher Hobbes, instead of deducing his theory of the state from a pure fiction, had prepared himself by ascertaining the facts as they are actually presented in groups of primitive men, or men in the first stages of social life, he never would have propounded it. Had he known something more of savages as they really exist, he would not have ascribed to them those ideas of social order and its benefits, which are the products of developed social life; and he would have learned that subordination to a ruling power is at the outset not in the least prompted by the motive he assigns. Instead of proceeding a priori as he did, let us proceed a posteriori–let us contemplate the evidence.

356. The first fact is that where there neither is, nor has been, any war there is no government. Already it has been pointed out that among the Esquimaux, in the absence of intertribal conflicts, there are scarcely any of those conflicts between members of the tribe which Hobbes assumes must necessarily arise among ungoverned men. If, as occasionally happens, one Esquimo is ill used by another, his remedy is an appeal to public opinion through a satirical song. The Fuegians, who gather in tribes of from twenty to eighty. have no chiefs; “nor did they seem to require one for the peace of their society” says Weddell. Of the Veddahs, again, we read that the small clans have divisions of the forest which “are always honorably recognized”; and the head man of each, who is simply the most influential person, according to Tennant, “exercises no sort of authority beyond distributing at a particular season the honey captured by the various members of the clan.”

The second fact is that when between tribes ordinarily peaceful there occur wars, leading warriors acquire predominant influence. In each case there arises some man distinguished from others by greater strength, courage, skill or sagacity; and who, consequently deferred to, becomes acknowledged leader. But at first, as shown us by the Tasmanians, the man who thus acquires predominance during war, loses it when peace is reestablished: there returns the state of equality and absence of government. As, however, the wars between tribes commonly become chronic, it usually happens that the man who acts as leader, now in one war and presently in another, gains permanent authority. The deference shown to him extends over the interval between the wars, as well as during the wars; and chieftainship is initiated. The Shoshones or Snakes of North America, which fall into three divisions, well illustrate these relationships of structure. The Mountain Snakes, scattered and wandering bands of men, who make no combined efforts to defend themselves against their hostile kindred, have no government. Among the War-are-aree-kas, or Fish-eaters, there is no trace of social organization, “except during salmon time”; when, resorting to the rivers in numbers, there arises temporarily “some person called a chief,” whose advice is accepted rather than obeyed. And then the Shirry-dikas, who hunt buffaloes and are better armed, show us more pronounced chieftainship; though authority still depends on “the personal vigor of the chief” and is readily transferred to another. Among the Comanches, who are relatively warlike, chiefs have more power; though the office is not hereditary. but results from “superior cunning, knowledge, or success in war.” And from these stages upwards we may trace the rise of definite chieftainship as a concomitant of chronic hostilities with other tribes.

The third fact is that where the enterprising leader in war subdues adjacent tribes, and, by successive conquests, forms a larger consolidated society, his supremacy becomes settled; and with increase of his power goes the imposing of his will in other than militant actions. When, by this process, nations are formed and chiefs grow into kings, governmental power, becoming absolute, becomes also coextensive with social life. Still it is to be observed that the king is above all things the leader in war. The records of the Egyptians and Assyrians, equally with the records of European nations, show that the ruler is primarily the head soldier.

And then, grouping several minor facts under the head of a fourth fact, we see that where, as in modern nations, the head of the state no longer commands his armies in battle, but deputes this function, he nevertheless is nominally a soldier–receives a military or naval education. Only in republics do there arise civil headships, and these are apt to lapse back into military ones. It needs only continued war to transform the government into its primitive type of a military dictatorship.

Thus induction puts beyond doubt the truth that government is initiated and developed by the defensive and offensive actions of a society against other societies. The primary function of the state, or of that agency in which the powers of the state are centralized, is the function of directing the combined actions of the incorporated individuals in war. The first duty of the ruling agency is national defense. What we may consider as measures to maintain intertribal justice, are more imperative, and come earlier, than measures to maintain justice among individuals.

357. While we are thus taught that the subordination of citizens to rulers has at first no such purpose as that which Hobbes fancied, we are also taught that for a long time the fulfillment of such purpose is not even attempted. Many simple societies exist permanently, and many complex societies have existed for long periods, without any measures being taken by the ruler to prevent aggressions of individuals on one another.

While the necessity for combined action against enemies of the tribe is obvious and peremptory, and prompts obedience to the leader, no obvious necessity exists for defending one member of the tribe against another: danger to tribal welfare is either not recognized or not thought great enough to call for interference. While there was no headship at all, and during times when headship existed only as long as war lasted, each member of the tribe maintained his own claims as well as he could: when injured, he did his best to injure the aggressor. This rude administration of justice, which we see among gregarious animals as well as among primitive hordes of men, having been a recognized custom before any political rule existed, long survived the establishment of political rule, as being a custom accepted from ancestry and sanctified by tradition. Hence in all early societies we find the lex talionis in force–now independently of the ruler, and now recognized by the ruler.

Beginning with the North American Indians we read of the Snakes, the Creeks, the Dacotahs, that private wrongs were avenged by the injured individuals or their families; that among the Comanches this system of retaliation was habitual, though councils sometimes interfered without success; and that among the Iroquois, with a comparatively well-developed government, the private righting of wrongs was permitted. So in South America, the Uaupes, the Patagonians, the Araucanians may be named as showing us degrees, more or less marked, of political subjection coexisting with primitive administration of justice by each man for himself, or by his family for him. In Africa, containing peoples in various stages of advance, we meet with various mixtures of systems. A Bechuanas king or chief makes little use of his power for punishment of any other crimes than those committed against himself or his servants. An injured man among the East Africans sometimes revenges himself and sometimes appeals to the chief. Some tribes of coast Negroes have judicial punishments, while in others murder is avenged by deceased's kindred; and there is a like variation in Abyssinia. Turning to Asiatics, we find that among the Arabs the prevalence of one or other of these modes of checking aggressions, depends on the state of the group as wandering or settled: where wandering, private retaliation and enforced restitution is the practice, but punishment by a ruler is usual in Arab towns. By the Bheels is shown a ratio between the chief's punitive action and that of the individual, which changes according to the chief's power; and by the Khonds, who pay little respect to authority, justice is enforced by private action. The custom of the Karens, too, is for each man to take the law into his own hands: the principle being that of equal damage.

That kindred states of things existed among the Aryan tribes which peopled Europe in early days, is a familiar fact. Private vengeance and public punishment were mingled in vanous proportions: the one decreasing and the other increasing along with progress to a higher state. Says Kemble: “The right of feud . . . lies at the root of all Teutonic legislation . . . each freeman is at liberty to defend himself, his family and his friends; to avenge all wrongs done to them.” Instead of being, as at first, his own judge respecting the extent of retaliation, the injured man presently came to have restraints put upon him by custom; and there grew up established rates of compensation for injuries, varying according to rank. When political authority gained strength, the first step was that of enforcing the customary fines, and, in default, permitting private rectification–“Let amends be made to the kindred, or let their war be borne.” During this transitional stage, which is traceable among some of the German tribes when first described, part of the compensation went to the man or family injured, while part went to the ruler. Under feudalism the system of private rectification of wrongs slowly yielded to the public rectification only as the central government gained power. The right of private war between nobles continued among ourselves down to the 12th and 13th centuries, and in France even later. So deeply rooted was it that in some cases, feudal lords thought it a disgrace to maintain their rights in any other ways than by force of arms. With all which we must join the long survival of judicial duels and of private duels.

The facts have to be contemplated under two other aspects. Not only is the primary function of government that of combining the actions of the incorporated individuals for war, while its secondary function of defending its component members against one another is step by step established; but this secondary function arises by differentiation from the primary one. Even in the earliest stages the private rectification of wrongs is in part the business of the individual wronged and in part the business of his family or relatives. The progress which brings development of the family organization, at the same time that it brings aggregation of clusters of families or clans into a society, develops the doctrine of family responsibility. That is to say, the private wars between family groups come to be of the same nature as the public wars between societies; and the enforcement of private justice is akin to the enforcement of intertribal justice. Hence arises the idea, which seems to us so strange, that if, when a member of one group has been murdered, a member of the group to which the murderer belongs is killed, it is indifferent whether the victim be the murderer or not. The group is injured to an equivalent extent, and that is the essential requirement.

The other noticeable aspect of the facts is that this rude enforcing of justice by private wars, is changed into public administration of justice, not because of the ruler's solicitude to maintain equitable relations, but much more because of his solicitude to prevent that weakening of his society which internal dissensions must produce. Be he primitive chief, or be he captain of banditti, a leader must check fights among his followers; and what is by these shown on a small scale was shown on a larger scale when, in feudal times, kings forbade private wars between nobles during the times when international wars were going on. Manifestly a king's desire to maintain a social order which conduces to fighting efficiency. prompts the practice of arbitrating between antagonist followers; and manifestly appeals made to him by the injured, recognizing as they do his authority. and responded to for this reason, tend more and more to establish his judicial and legislative powers.

Once established, this secondary function of the state goes on developing; and becomes a function next in importance to the function of protecting against external enemies. The truth to be specially emphasized here, is that while other kinds of governmental action diminish, this kind of governmental action increases. Militant activities may become gradually less, and political agency may retire from various regulative actions previously exercised over citizens. But with the progress of civilization, the administration of justice continues to extend and to become more efficient.

358. And now, having reached these conclusions inductively, let us see whether corresponding conclusions cannot be reached deductively. Let us see whether from the natures of men as socially conditioned, it is not inferable that these two state duties are the essential ones.

At the outset it was shown that the prosperity of a species is achieved by conformity to two opposite principles, appropriate to the young and to the adult respectively: benefits being inversely proportioned to worth in the one case and directly proportioned to worth in the other. Confining our attention to the last of these principles, which now alone concerns us, it is clear that maintenance of those conditions under which each one's efforts bring their rewards is, in the case of a society, liable to be traversed by external foes and by internal foes. The implication is that for the prosperity of a species, or in this case of a society, these conditions must be maintained by a due exercise of force; and for the exercise of such force the corporate action of the society is demanded–imperatively in the one case and with something approaching to imperativeness in the other. To such exercise of force, citizens at large (excluding criminals) have good reasons to assent. Observe their motives.

Such contingent loss of life and partial loss of liberty as are entailed on soldiers, and such deductions from their earnings as other citizens have to contribute to support soldiers, are felt by each to be justified as instrumental to the supreme end of enabling him to carry on his activities and to retain the reward for them–sacrifice of a part to ensure the remainder. Hence he tacitly authorizes the required state coercion.

Though the need for corporate guardianship against internal foes is less urgently felt, yet from the pursuit of his ends by each there arises a resultant desire for such guardianship. As in every community the relatively strong are few, and the relatively weak are many, it happens that in the majority of cases purely private rectification of wrongs is impracticable. If beyond the aid of family and friends, often inadequate, there can be obtained the aid of some one more powerful, it is worth buying–at first by a bribe, and presently by tribute. Eventually, all find it answers best to pay for security rather than suffer aggressions.

Thus these primary and secondary duties of the state are implied by those fundamental needs which associated men experience. They severally desire to live, to carry on their activities, and reap the benefits of them. All have motives to maintain against external enemies the conditions under which these ends may be achieved, and all, save aggressors of one or other kind, have motives to maintain these conditions against internal enemies. Hence at once the duty of the state and the authority of the state.

359. If these duties devolve upon the state, then the state is under obligation to take such measures as are needful for efficiently discharging them.

That defensive appliances sufficient to meet imminent dangers must be provided, every one admits. Even where no attack by foreign foes seems likely, there should be maintained adequate forces to repel invasion; since total unpreparedness may invite attack. Though in this part of the world, and in our days, descents made without excuse by plundering hordes may not have to be guarded against; yet the readiness shown by peoples called civilized to hurl large armies upon one another with but small provocation, makes it manifest that even the most advanced nations cannot prudently trust their neighbors. What amount of military power is needful for safeguarding, of course depends on circumstances, and is a matter of judgment in each case.

But while the need for maintaining such an organization as is requisite for duly discharging the first duty of the state is fully recognized, the need for maintaining such an organization as is requisite for duly discharging its second duty is far from fully recognized. As we have seen above, the defense of citizens one against another, not at first a business of the government, has been undertaken by it but gradually; and even in the most civilized societies its discharge of this business is still but partial, and the propriety of full discharge of it is denied. I do not of course mean that the responsibility of the state for guarding citizens against offenders classed as criminal, is not admitted and fulfilled; but I mean that the state neither admits, nor is supposed by citizens to have, any responsibility for guarding them against offenders classed as civil. Though, if one who receives a rude push invokes the agents of the state, they will take up his case and punish the assailant; yet if he is defrauded of an estate they turn deaf ears to his complaint, and leave him either to bear the loss, or run the risk of further and perhaps greater loss in carrying on a suit and possibly appeals.

Not by lawyers only, but by most other people this condition of things is defended; and the proposition that it is the duty of the state to administer justice without cost, in civil as well as in criminal cases, is ridiculed: as, indeed, every more equitable arrangement is ridiculed before successful establishment of it proves its propriety. It is argued that did the state arbitrate between men gratis, the courts would be so choked with cases as to defeat the end by delay: to say nothing of the immense expense entailed on the country. But this objection proceeds upon the vicious assumption that while one thing is changed other things remain the same. It is supposed that if justice were certain and could be had without cost, the number of trespasses would be as great as now when it is uncertain and expensive! The truth is that the immense majority of civil offenses are consequent on the inefficient administration of justice–would never have been committed had the penalties been certain.

But when we come to contemplate it, it is a marvelous proposition, this which the objection implies, that multitudinous citizens should be left to bear their civil wrongs in silence or risk ruin in trying to get them rectified; and all because the state, to which they have paid great sums in taxes, cannot be at the trouble and expense of defending them! The public evil of discharging this function would be so great, that it is better for countless citizens to suffer the evils of impoverishment and many of them of bankruptcy! Meanwhile, through the officers of its local agents, the state is careful to see that their stink traps are in order!

360. One further duty of the state, indirectly included in the last but distinguishable from it, must be set down, and its consequences specified. 1 refer to its duty in respect of the inhabited territory.

For employments of the surface other than those already established, and tacitly authorized by the community through its government, there require state authorizations. As trustee for the nation the government has to decide whether a proposed undertaking–road, canal, railway, dock &c.–which will so change some tract as to make it permanently useless for ordinary purposes, promises to be of such public utility as to warrant the alienation; and has to fix the terms for its warrant: terms which, while they deal fairly with those who stake their capital in the enterprise, and while they protect the rights of the existing community, also keep in view the interests of future generations, who will hereafter be supreme owners of the territory. For the achievement of these several ends, the equitable arrangement would seem to be, not a permanent alienation of the required tract; nor an unscrupulous breaking of the contract by the state at will, as now; but an alienation for a specified period, with the understanding that the conditions may, at the termination of that period, be revised.

In discharge of its duties as trustee, the ruling body has to exercise a further control–allied but different. If not itself, then by its local deputies, it has to forbid or allow the breaking up of streets, roads, and other public spaces for the establishment or repair of water, gas, telegraph, and kindred appliances. Such supervisions are required for protecting each and all members of the community against the aggressions of particular members or groups of members.

That like considerations call for oversight by the state of rivers, lakes, or other inland waters, as also of the adjacent sea, is sufficiently clear. On the uses made of these and their contents, there may rightly be put such restraints as the interests of the supreme owner, the community, demand.

361. And now what are these duties of the state considered under their most general aspect? What has a society in its corporate capacity to do for its members in their individual capacities? The answer may be given in several ways.

The prosperity of a species is best subserved when among adults each experiences the good and evil results of his own nature and consequent conduct. In a gregarious species fulfillment of this need implies that the individuals shall not so interfere with one another as to prevent the receipt by each of the benefits which his actions naturally bring to him, or transfer to others the evils which his actions naturally bring. This, which is the ultimate law of species life as qualified by social conditions, it is the business of the social aggregate, or incorporated body of citizens, to maintain.

This essential requirement has to be maintained by all for each, because each cannot effectually maintain it for himself. He cannot by himself repel external invaders; and on the average, his resistance to internal invaders, if made by himself or with the aid of a few, is either inefficient, or dangerous, or costly, or wasteful of time, or all of these. To which add that universal self-defense implies chronic antagonisms, either preventing or greatly impeding cooperation and the facilitations to life which it brings. Hence, in distinguishing between things to be done by corporate action and things to be done by individual action, it is clear that, whether or not it does anything else, corporate action may rightly be used to prevent interferences with individual action beyond such as the social state itself necessitates.

Each citizen wants to live, and to live as fully as his surroundings permit. This being the desire of all, it results that all, exercising joint control, are interested in seeing that while each does not suffer from breach of the relation between acts and ends in his own person, he shall not break those relations in the persons of others. The incorporated mass of citizens has to maintain the conditions under which each may gain the fullest life compatible with the fullest lives of fellow citizens.

Whether the state has other duties is a question which remains now to be discussed. Between these essential functions and all other functions there is a division which, though it cannot in all cases be drawn with precision, is yet broadly marked. To maintain intact the conditions under which life may be carried on is a business fundamentally distinct from the business of interfering with the carrying on of the life itself, either by helping the individual or directing him, or restraining him. We will first inquire whether equity permits the state to undertake this further business; and we will then inquire whether considerations of policy coincide with considerations of equity.