[4] [Greek πόλις (polis) = city-state, πολίτης (polites) = citizen, ἄρχειν καὶ ἄρχεσθαι (archein kai archesthai) = to rule and to be ruled Tr]
6. On the other hand, it would seem that we cannot significantly speak of freedom except with reference to individual persons; that only in them can freedom be realised; that therefore the realisation of freedom in the state can only mean the attainment of freedom by individuals through influences which the state (in the wide sense spoken of) supplies,—'freedom' here, as before, meaning not the mere self-determination which renders us responsible, but determination by reason, 'autonomy of the will'; and that under the best conditions of any society that has ever been such realisation of freedom is most imperfect. To an Athenian slave, who might be used to gratify a master's lust, it would have been a mockery to speak of the state as a realisation of freedom; and perhaps it would not be much less so to speak of it as such to an untaught and under-fed denizen of a London yard with gin-shops on the right hand and on the left. What Hegel says of the state in this respect seems as hard to square with facts as what St. Paul says of the Christian whom the manifestation of Christ has transferred from bondage into 'the glorious liberty of the sons of God.' In both cases the difference between the ideal and the actual seems to be ignored, and tendencies seem to be spoken of as if they were accomplished facts. It is noticeable that by uncritical readers of St. Paul the account of himself as under the law (inRomansvii.), with the 'law of sin in his members warring against the law of his reason,' is taken as applicable to the regenerate Christian, though evidently St. Paul meant it as a description of the state from which the Gospel, the 'manifestation of the Son of God in the likeness of sinful flesh,' set him free. They are driven to this interpretation because, though they can understand St. Paul's account of his deliverance as an account of a deliverance achieved for them but not in them, or as an assurance of what is to be, they cannot adjust it to the actual experience of the Christian life. In the same way Hegel's account of freedom as realised in the state does not seem to correspond to the facts of society as it is, or even as, under the unalterable conditions of human nature, it ever could be; though undoubtedly there is a work of moral liberation, which society, through its various agencies, is constantly carrying on for the individual.
7. Meanwhile it must be borne in mind that in all these different views as to the manner and degree in which freedom is to be attained, 'freedom' does not mean that the man or will is undetermined, nor yet does it mean mere self-determination, which (unless denied altogether, as by those who take the strictly naturalistic view of human action) must be ascribed equally to the man whose will is heteronomous or vicious, and to him whose will is autonomous; equally to the man who recognises the authority of law in what St. Paul would count the condition of a bondman, and to him who fulfils the righteousness of the law in the spirit of adoption. It means a particular kind of self-determination; the state of the man who lives indeed for himself, but for the fulfilment of himself as a 'giver of law universal' (Kant); who lives for himself, but only according to the true idea of himself, according to the law of his being, 'according to nature' (the Stoics); who is so taken up into God, to whom God so gives the spirit, that there is no constraint in his obedience to the divine will (St. Paul); whose interests, as a loyal citizen, are those of a well-ordered state in which practical reason expresses itself (Hegel). Now none of these modes of self-determination is at all implied in 'freedom' according to the primary meaning of the term, as expressing that relation between one man and others in which he is secured from compulsion. All that is so implied is that a man should have power to do what he wills or prefers. No reference is made to the nature of the will or preference, of the object willed or preferred; whereas according to the usage of 'freedom' in the doctrines we have just been considering, it is not constituted by the mere fact of acting upon preference, but depends wholly on the nature of the preference, upon the kind of object willed or preferred.
8. If it were ever reasonable to wish that the usage of words had been other than it has been (any more than that the processes of nature were other than they are), one might be inclined to wish that the term 'freedom' had been confined to the juristic sense of the power to 'do what one wills': for the extension of its meaning seems to have caused much controversy and confusion. But, after all, this extension does but represent various stages of reflection upon the self-distinguishing, self-seeking, self-asserting principle, of which the establishment of freedom, as a relation between man and man, is the expression. The reflecting man is not content with the first announcement which analysis makes as to the inward condition of the free man, viz. that he can do what he likes, that he has the power of acting according to his will or preference. In virtue of the same principle which has led him to assert himself against others, and thus to cause there to be such a thing as (outward) freedom, he distinguishes himself from his preference, and asks how he is related to it, whether he determines it or how it is determined. Is he free to will, as he is free to act; or, as the act is determined by the preference, is the preference determined by something else? Thus Locke (Essay, II. 21) begins with deciding that freedom means power to do or forbear from doing any particular act upon preference, and that, since the will is merely the power of preference, the question whether the will is free is an unmeaning one (equivalent to the question whether one power has another power); that thus the only proper question is whether a man (not his will) is free, which must be answered affirmatively so far as he has the power to do or forbear, as above. But he recognises the propriety of the question whether a man is free to will as well as to act. He cannot refuse to carry back the analysis of what is involved in a man's action beyond the preference of one possible action to another, and to inquire what is implied in the preference. It is when this latter question is raised, that language which is appropriate enough in a definition of outward or juristic freedom becomes misleading. It having been decided that the man civilly free has power over his actions, to do or forbear according to preference, it is asked whether he has also power to prefer.
9. But while it is proper to ask whether in any particular case a man has power over his actions, because his nerves and limbs and muscles may be acted upon by another person or a force which is not he or his, there is no appropriateness in asking the question in regard to a preference or will, because this cannot be so acted on. If so acted on, it would not be a will or preference. There is no such thing as a will which a man is not conscious of as belonging to himself, no such thing as an act of will which he is not conscious of as issuing from himself. To ask whether he has power over it, or whether some other power than he determines it, is like asking whether he is other than himself. Thus the question whether a man, having power to act according to his will, or being free to act, has also power over his will, or is free to will, has just the same impropriety that Locke points out in the question whether the will is free. The latter question, on the supposition that there is power to enact the will,—a supposition which is necessarily made by those who raise the ulterior question whether there is power over the will,—is equivalent, as Locke sees, to a question whether freedom is free. For a will which there is power of enacting constitutes freedom, and therefore to ask whether it is free is like asking (to use Locke's instance) whether riches are rich ('rich' being a denomination from the possession of riches, just as 'free' is a denomination from the possession of freedom, in the sense of a will which there is power to enact). But if there is this impropriety in the question whether the will is free, there is an equal one in the question which Locke entertains, viz. whether man is free to will, or has power over his will. It amounts to asking whether a certain power is also a power over itself: or, more precisely, whether a man possessing a certain power—that which we call freedom—has also the same power over that power.
10. It may be said perhaps that we are here pressing words too closely; that it is of course understood, when it is asked whether a man has power over his will, that 'power' is used in a different sense from that which it bears when it is asked whether he has power to enact his will: that 'freedom,' in like manner, is understood to express a different kind of power or relation when we ask whether a man is free to will, and when we ask whether he is free to act. But granting that all this has been understood, the misleading effects of the question in the form under consideration ('Is a man free to will as well as to act?' 'Has he power over his will?') remain written in the history of the 'free-will controversy.' It has mainly to answer for two wrong ways of thinking on the subject;(a)for the way of thinking of the determining motive of an act of will, the object willed, as something apart from the will or the man willing, so that in being determined by it the man is supposed not to be self-determined, but to be determined as one natural event by another, or at best as a natural organism by the forces acting on it:(b), for the view that the only way of escaping this conclusion is to regard the will as independent of motives, as a power of deciding between motives without any motive to determine the decision, which must mean without reference to any object willed. A man, having (in virtue of his power of self-distinction and self-objectification) presented his will to himself as something to be thought about, and being asked whether he has power over it, whether he is free in regard to it as he is free against other persons and free to use his limbs and, through them, material things, this way or that, must very soon decide that he is not. His will is himself. His character necessarily shows itself in his will. We have already, in a previous lecture, [1] noticed the practical fallacy involved in a man's saying that he cannot help being what he is, as if he were controlled by external power; but he being what he is, and the circumstances being what they are at any particular conjuncture, the determination of the will is already given, just as an effect is given in the sum of its conditions. The determination of the will might be different, but only through the man's being different, But to ask whether a man has power over determinations of his will, or is free to will as he is to act, as the question is commonly understood and as Locke understood it, is to ask whether, the man being what at any time he is, it is still uncertain (1) whether he will choose or forbear choosing between certain possible courses of action, and (2) supposing him to choose one or other of them, which he will choose.
[1] [Prolegomena to Ethics, Sections 107, ff.—RLN]
11. Now we must admit that there is really no such uncertainty. The appearance of it is due to our ignorance of the man and the circumstances. If, however, because this is so, we answer the question whether a man has power over his will, or is free to will, in the negative, [1] we at once suggest the conclusion that something else has power over it, viz. the strongest motive. We ignore the truth that in being determined by a strongest motive, in the only sense in which he is really so determined, the man (as previously explained) [2] is determined by himself, by an object of his own making, and we come to think of the will as determined like any natural phenomenon by causes external to it. All this is the consequence of asking questions about the relation between a man and his will in terms only appropriate to the relation between the man and other men, or to that between the man and his bodily members or the materials on which he acts through them.
[1] Instead of saying (as we should) that it is one of those inappropriate questions to which there is no answer; since a man's will is himself, and 'freedom' and 'power' express relations between a man and something other than himself.
[2] [SeeProlegomena to Ethics, Section 105.—RLN]
12. On the other side the consciousness of self-determination resists this conclusion; but so long as we start from the question whether a man has power over his will, or is free to will as well as to act, it seems as if the objectionable conclusion could only be avoided by answering this question in the affirmative. But to say that a man has power over determinations of his will is naturally taken to mean that he can change his will while he himself remains the same; that given his character, motives, and circumstances as these at any time are, there is still something else required for the determination of his will; that behind and beyond the will as determined by some motive there is a will, itself undetermined by any motive, that determines what the determining motive shall be,—that 'has power over' his preference or choice, as this has over the motion of his bodily members. But an unmotived will is a will without an object, which is nothing. The power or possibility, beyond any actual determination of the will, of determining what that determination shall be is a mere negation of the actual determination. It is that determination as it becomes after an abstraction of the motive or object willed, which in fact leaves nothing at all. If those moral interests, which are undoubtedly involved in the recognition of the distinction between man and any natural phenomenon, are to be made dependent on belief in such a power or abstract possibility, the case is hopeless.
13. The right way out of the difficulty lies in the discernment that the question whether a man is free to will, or has power over the determinations of his will, is a question to which there is no answer, because it is asked in inappropriate terms; in terms that imply some agency beyond the will which determines what the will shall be (as the will itself is an agency beyond the motions of the muscles which determines what those motions shall be), and that as to this agency it may be asked whether it does or does not lie in the man himself. In truth there is no such agency beyond the will and determining how the will shall be determined; not in the man, for the willisthe self-conscious man; not elsewhere than in the man, not outside him, for the self-conscious man has no outside. He is not a body in space with other bodies elsewhere in space acting upon it and determining its motions. The self-conscious man is determined by objects, which in order to be objects must already be in consciousness, and in order to behisobjects, the objects which determine him, must already have been made his own. To say that they have power over him or his will, and that he or his will has power over them, is equally misleading. Such language is only applicable to the relation between an agent and patient, when the agent and the patient (or at any rate the agent) can exist separately. But self-consciousness and its object, will and its object, form a single individual unity. Without the constitutive action of man or his will the objects do not exist; apart from determination by some object neither he nor his will would be more than an unreal abstraction.
14. If, however, the question is persisted in, 'Has a man power over the determinations of his will?' we must answer both 'yes' and 'no.' 'No,' in the sense that he is not other than his will, with ability to direct it as the will directs the muscles. 'Yes,' in the sense that nothing external to him or his will or self-consciousness has power over them. 'No,' again, in the sense that, given the man and his object as he and it at any time are, there is no possibility of the will being determined except in one way, for the will is already determined, being nothing else than the man as directed to some object. 'Yes,' in the sense that the determining object is determined by the man or will just as much as the man or will by the object. The fact that the state of the man, on which the nature of his object at any time depends, is a result of previous states, does not affect the validity of this last assertion, since (as we have seen [1]) all these states are states of a self-consciousness from which all alien determination, all determination except through the medium of self-consciousness, is excluded.
[1] [Prolegomena to Ethics, Section 102. RLN]
15. In the above we have not supposed any account to be taken of the character of the objects willed in the application to the will itself of the question 'free or not free,' which is properly applied only to an action (motion of the bodily members) or to a relation between one man and other men. Those who unwisely consent to entertain the question whether a man is free to will or has power over determinations of his will, and answer it affirmatively or negatively, consider their answer, whether 'yes' or 'no,' to be equally applicable whatever the nature of the objects willed. If they decide that a man is 'free to will,' they mean that he is so in all cases of willing, whether the object willed be a satisfaction of animal appetite or an act of heroic self-sacrifice; and conversely, if they decide that he is not free to will, they mean that he is not so even in cases when the action is done upon cool calculation or upon a principle of duty, as much as when it is done on impulse or in passion. Throughout the controversy as to free will that has been carried on among English psychologists this is the way in which the question has been commonly dealt with. The freedom, claimed or denied for the will, has been claimed or denied for it irrespectively of those objects willed, on the nature of which the goodness or badness of the will depends.
16. On the other hand, with the Stoics, St. Paul, Kant, and Hegel, as we have seen, the attainment of freedom (at any rate of the reality of freedom, as distinct from some mere possibility of it which constitutes the distinctive human nature) depends on the character of the objects willed. In all these ways of thinking, however variously the proper object of will is conceived, it is only as directed to this object, and thus (in Hegelian language) corresponding to its idea, that the will is supposed to be free. The good will is free, not the bad will. Such a view of course implies some element of identity between good will and bad will, between will as not yet corresponding to its idea and will as so corresponding. St. Paul indeed, not being a systematic thinker and being absorbed in the idea of divine grace, is apt to speak as if there were nothing in common between the carnal or natural man (the will as in bondage to the flesh) and the spiritual man (the will as set free); just as Plato commonly ignores the unity of principle in all a man's actions, and represents virtuous actions as coming from the God in man, vicious actions from the beast. Kant and Hegel, however,— though they do not consider the will as it is in every man, good and bad, to be free; though Kant in his later ethical writings, and Hegel (I think) always, confine the term 'Wille' to the will as having attained freedom or come to correspond to its idea, and apply the term 'Willkür' to that self-determining principle of action which belongs to every man and is in their view the mere possibility, not actuality, of freedom,—yet quite recognise what has been above insisted on as the common characteristic of all willing, the fact that it is not a determination from without, like the determination of any natural event or agent, but the realisation of an object which the agent presents to himself or makes his own, the determination by an object of a subject which itself consciously determines that object; and they see that it is only for a subject free in this sense ('an sich' but not 'fur sich,' δυνάμει but not ενεργείᾳ) [1] that the reality of freedom can exist.
[1] [Greek δυνάμει (dynamei) = potential, ενεργείᾳ (energiea) = actuality Tr]
17. Now the propriety or impropriety of the use of 'freedom' to express the state of the will, not as directed to any and every object, but only to those to which, according to the law of nature or the will of God or its 'idea,' it should be directed, is a matter of secondary importance. This usage of the term is, at any rate, no more a departure from the primary or juristic sense than is its application to the will as distinct from action in any sense whatever. And certainly the unsophisticated man, as soon as the usage of 'freedom' to express exemption from control by other men and ability to do as he likes is departed from, can much more readily assimilate the notion of states of the inner man described as bondage to evil passions, to terrors of the law, or on the other hand as freedom from sin and law, freedom in the consciousness of union with God, or of harmony with the true law of one's being, freedom of true loyalty, freedom in devotion to self-imposed duties, than he can assimilate the notion of freedom as freedom to will anything and everything, or as exemption from determination by motives, or the constitution by himself of the motives which determine his will. And there is so far less to justify the extension of the usage of the term in these latter ways than in the former. It would seem indeed that there is a real community of meaning between 'freedom' as expressing the condition of a citizen of a civilised state, and 'freedom' as expressing the condition of a man who is inwardly 'master of himself.' That is to say, the practical conception by a man ('practical' in the sense of having a tendency to realise itself) of a self-satisfaction to be attained in his becoming what he should be, what he has it in him to be, in fulfilment of the law of his being,—or, to vary the words but not the meaning, in attainment of the righteousness of God, or in perfect obedience to self-imposed law,—this practical conception is the outcome of the same self-seeking principle which appears in a man's assertion of himself against other men and against nature ('against other men,' as claiming their recognition of him as being what they are; 'against nature,' as able to use it). This assertion of himself is the demand for freedom, freedom in the primary or juristic sense of power to act according to choice or preference. So far as such freedom is established for any man, this assertion of himself is made good; and such freedom is precious to him because it is an achievement of the self-seeking principle. It is a first satisfaction of its claims, which is the condition of all other satisfaction of them. The consciousness of it is the first form of self-enjoyment, of the joy of the self-conscious spirit in itself as in the one object of absolute value.
18. This form of self-enjoyment, however, is one which consists essentially in the feeling by the subject of a possibility rather than a reality, of what it has it in itself to become, not of what it actually is. To a captive on first winning his liberty, as to a child in the early experience of power over his limbs and through them over material things, this feeling of a boundless possibility of becoming may give real joy; but gradually the sense of what it is not, of the very little that it amounts to, must predominate over the sense of actual good as attained in it. Thus to the grown man, bred to civil liberty in a society which has learnt to make nature its instrument, there is no self-enjoyment in the mere consciousness of freedom as exemption from external control, no sense of an object in which he can satisfy himself having been obtained.
Still, just as the demand for and attainment of freedom from external control is the expression of that same self-seeking principle from which the quest for such an object proceeds, so 'freedom' is the natural term by which the man describes such an object to himself,—describes to himself the state in which he shall have realised his ideal of himself, shall be at one with the law which he recognises as that which he ought to obey, shall have become all that he has it in him to be, and so fulfil the law of his being or 'live according to nature.' Just as the consciousness of an unattainable ideal, of a law recognised as having authority but with which one's will conflicts, of wants and impulses which interfere with the fulfilment of one's possibilities, is a consciousness of impeded energy, a consciousness of oneself as for ever thwarted and held back, so the forecast of deliverance from these conditions is as naturally said to be a forecast of 'freedom' as of peace' or 'blessedness.' Nor is it merely to a select few, and as an expression for a deliverance really (as it would seem) unattainable under the conditions of any life that we know, but regarded by saints as secured for them in another world, and by philosophers as the completion of a process which is eternally complete in God, that 'freedom' commends itself. To any popular audience interested in any work of self-improvement (e.g. to a temperance-meeting seeking to break the bondage to liquor), it is as an effort to attain freedom that such work can be most effectively presented. It is easy to tell such people that the term is being misapplied; that they are quite 'free' as it is, because every one can do as he likes so long as he does not prevent another from doing so; that in any sense in which there is such a thing as 'free will,' to get drunk is as much an act of free will as anything else. Still the feeling of oppression, which always goes along with the consciousness of unfulfilled possibilities, will always give meaning to the representation of the effort after any kind of self-improvement as a demand for 'freedom.'
19. The variation in the meaning of 'freedom' having been thus recognised and accounted for, we come back to the more essential question as to the truth of the view which underlies all theories implying that freedom is in some sense the goal of moral endeavour; the view, namely, that there is some will in a man with which many or most of his voluntary actions do not accord, a higher self that is not satisfied by the objects which yet he deliberately pursues. Some such notion is common to those different theories about freedom which in the rough we have ascribed severally to the Stoics, St. Paul, Kant, and Hegel. It is the same notion which was previously [1] put in the form, 'that a man is subject to a law of his being, in virtue of which he at once seeks self-satisfaction, and is prevented from finding it in the objects which he actually desires, and in which he ordinarily seeks it.' 'What can this mean?' it maybe asked. 'Of course we know that there are weak people who never succeed in getting what they want, either in the sense that they have not ability answering to their will, or that they are always wishing for something which yet they do not will. But it would not be very appropriate to apply the above formula to such people, for the man's will to attain certain objects cannot be ascribed to the same law of his being as the lack of ability to attain them, nor his wish for certain objects to the same law of his being as those stronger desires which determine his will in a contrary direction. At any rate, if the proposition is remotely applicable to the man who is at once selfish and unsuccessful, how can it be true in any sense either of the man who is at once selfish and succeeds, who gets what he wants (as is unquestionably the case with many people who live for whata priorimoralists count unworthy objects), or of the man who 'never thinks about himself at all'? So far as the proposition means anything, it would seem to represent Kant's notion, long ago found unthinkable and impossible, the notion of there being two wills or selves in a man, the 'pure' will or ego and the 'empirical' will or ego, the pure will being independent of a man's actual desires and directed to the fulfilment of a universal law of which it is itself the giver, the empirical will being determined by the strongest desire and directed to this or that pleasure. In this proposition the 'objects which the man actually desires and in which he ordinarily seeks satisfaction' are presumably objects of what Kant called the 'empirical will,' while the 'law of his being' corresponds to Kant's 'pure ego.' But just as Kant must be supposed to have believed in some identity between the pure and empirical will, as implied in the one term 'will,' though he does not explain in what this identity consists, so the proposition before us apparently ascribes man's quest for self-satisfaction as directed to certain objects, to the same law of his being which prevents it from finding it there. Is not this nonsense?'
[1] [Above, section 1 RLN]
20. To such questions we answer as follows. The proposition before us, like all the theories of moral freedom which we have noticed, undoubtedly implies that the will of every man is a form of one consciously self-realising principle, which at the same time is not truly or fully expressed in any man's will. As a form of this self-realising principle it may be called, if we like, a 'pure ego' or 'the pure ego' of the particular person; as directed to this or that object in such a way that it does not truly express the self-realising principle of which it is a form, it may be called the 'empirical ego' of that person. But if we use such language, it must be borne in mind that the pure and empirical egos are still not two egos but one ego; the pure ego being the self-realising principle considered with reference either to its idea, its possibility, what it has in itself to become, the law of its being, or to some ultimate actualisation of this possibility; the empirical ego being the same principle as it appears in this or that state of character, which results from its action, but does not represent that which it has in itself to become, does not correspond to its idea or the law of its being. By a consciously self-realising principle is meant a principle that is determined to action by the conception of its own perfection, or by the idea of giving reality to possibilities which are involved in it and of which it is conscious as so involved; or, more precisely, a principle which at each stage of its existence is conscious of a more perfect form of existence as possible for itself, and is moved to action by that consciousness. We must now explain a little more fully how we understand the relation of the principle in question to what we call our wills and our reason,—the will and reason of this man and that,—and how we suppose its action to constitute the progress of morality.
21. By 'practical reason' we mean a consciousness of a possibility of perfection to be realised in and by the subject of the consciousness. By 'will' we mean the effort of a self-conscious subject to satisfy itself. In God, so far as we can ascribe reason and will to Him, we must suppose them to be absolutely united. In Him there can be no distinction between possibility and realisation, between the idea of perfection and the activity determined by it. But in men the self-realising principle, which is the manifestation of God in the world of becoming, in the form which it takes as will at best onlytendsto reconciliation with itself in the form which it takes as reason. Self-satisfaction, the pursuit of which is will, is sought elsewhere than in the realisation of that consciousness of possible perfection, which is reason. In this sense the object of will does not coincide with the object of reason. On the other hand, just because it is self-satisfaction that is sought in all willing, and because by a self-conscious and self-realising subject it is only in the attainment of its own perfection that such satisfaction can be found, the object of will is intrinsically or potentially, and tends to become actually, the same as that of reason. It is this that we express by saying that man is subject to a law of his being which prevents him from finding satisfaction in the objects in which under the pressure of his desires it is his natural impulse to seek it. This 'natural impulse' (not strictly 'natural') is itself the result of the operation of the self-realising principle upon what would otherwise be an animal system, and is modified, no doubt, with endless complexity in the case of any individual by the result of such operation through the ages of human history. But though the natural impulses of the will are thus the work of the self-realising principle in us, it is not in their gratification that this principle can find the satisfaction which is only to be found in the consciousness of becoming perfect, of realising what it has it in itself to be. In order to any approach to this satisfaction of itself the self-realising principle must carry its work farther. It must overcome the 'natural impulses,' not in the sense of either extinguishing them or denying them an object, but in the sense of fusing them with those higher interests, which have human perfection in some of its forms for their object. Some approach to this fusion we may notice in all good men; not merely in those in whom all natural passions, love, anger, pride, ambition, are enlisted in the service of some great public cause, but in those with whom such passions are all governed by some such commonplace idea as that of educating a family.
22. So far as this state is reached, the man may be said to be reconciled to 'the law of his being' which (as was said above) prevents him from finding satisfaction in the objects in which he ordinarily seeks it, or anywhere but in the realisation in himself of an idea of perfection. Since the law is, in fact, the action of that self-realising subject which is his self, and which exists in God as eternally self-realised, he may be said in this reconciliation to be at peace at once with himself and with God.
Again, he is 'free,' (1) in the sense that he is the author of the law which he obeys (for this law is the expression of that which is his self), and that he obeys it because conscious of himself as its author; in other words, obeys it from that impulse after self-perfection which is the source of the law or rather constitutes it. He is 'free' (2) in the sense that he not merely 'delights in the law after the inward man' (to use St. Paul's phrase), while his natural impulses are at once thwarted by it and thwart him in his effort to conform to it, but that these very impulses have been drawn into its service, so that he is in bondage neither to it nor to the flesh.
From the same point of view we may say that his will is 'autonomous,' conforms to the law which the will itself constitutes, because the law (which prevents him from finding satisfaction anywhere but in the realisation in himself of an idea of perfection) represents the action in him of that self-realising principle of which his will is itself a form. There is an appearance of equivocation, however, in this way of speaking, because the 'will' which is liable not to be autonomous, and which we suppose gradually to approach autonomy in the sense of conforming to the law above described, is not this self-realising principle in the form in which this principle involves or gives the law. On the contrary, it is the self-realising principle as constituting that effort after self-satisfaction in each of us which is liable to be and commonly is directed to objects which are not contributory to the realisation of the idea of perfection,—objects which the self-realising principle accordingly, in the fulfilment of its work, has to set aside. The equivocation is pointed out by saying, that the good will is 'autonomous' in the sense of conforming to a law which the will itself,as reason, constitutes; which is, in fact, a condensed way of saying, that the good will is the will of which the object coincides with that of practical reason; that will has its source in the same self-realising principle which yields that consciousness of a possible self-perfection which we call reason, and that it can only correspond to its idea, or become what it has the possibility of becoming, in being directed to the realisation of that consciousness.
23. According to the view here taken, then, reason and will, even as they exist in men, are one in the sense that they are alike expressions of one self-realising principle. In God, or rather in the ideal human person as he really exists in God, they are actually one; i.e. self-satisfaction is for ever sought and found in the realisation of a completely articulated or thoroughly filled idea of the perfection of the human person. In the historical man—in the men that have been and are coming to be—theytendto unite. In the experience of mankind, and again in the experience of the individual as determined by the experience of mankind, both the idea of a possible perfection of man, the idea of which reason is the faculty, and the impulse after self-satisfaction which belongs to the will, undergo modifications which render their reconciliation in the individual (and it is only in individuals that they can be reconciled, because it is only in them that they exist) more attainable. These modifications may be stated summarily as (1) an increasing concreteness in the idea of human perfection; its gradual development from the vague inarticulate feeling that there is such a thing into a conception of a complex organisation of life, with laws and institutions, with relationships, courtesies, and charities, with arts and graces through which the perfection is to be attained; and (2) a corresponding discipline, through inheritance and education, of those impulses which may be called 'natural' in the sense of being independent of any conscious direction to the fulfilment of an idea of perfection. Such discipline does not amount to the reconciliation of will and reason; it is not even, properly speaking, the beginning of it; for the reconciliation only begins with the direction of the impulse after self-satisfaction to the realisation of an idea of what should be, as such (becauseit should be); and no discipline through inheritance or education, just because it is only impulses that are natural (in the sense defined) which it can affect, can bring about this direction, which, in theological language, must be not of nature, but of grace. On the contrary, the most refined impulses may be selfishly indulged; i.e. their gratification may be made an object in place of that object which consists in the realisation of the idea of perfection. But unless a discipline and refinement of the natural impulses, through the operation of social institutions and arts, went onpari passuwith the expression of the idea of perfection in such institutions and arts, the direction of the impulses of the individual by this idea, when in some form or other it has been consciously awakened in him, would be practically impossible. The moral progress of mankind has no reality except as resulting in the formation of more perfect individual characters; but on the other hand every progress towards perfection on the part of the individual character presupposes some embodiment or expression of itself by the self-realising principle in what may be called (to speak most generally) the organisation of life. It is in turn, however, only through the action of individuals that this organisation of life is achieved.
24. Thus the process of reconciliation between will and reason,—the process through which each alike comes actually to be or to do what it is and does in possibility, or according to its idea, or according to the law of its being,—so far as it comes within our experience may be described as follows. A certain action of the self-realising principle, of which individuals susceptible in various forms to the desire to better themselves have been the media, has resulted in conventional morality; in a system of recognised rules (whether in the shape of law or custom) as to what the good of society requires, which no people seem to be wholly without. The moral progress of the individual, born and bred under such a system of conventional morality, consists (1) in the adjustment of the self-seeking principle in him to the requirements of conventional morality, so that the modes in which he seeks self-satisfaction are regulated by the sense of what is expected of him. This adjustment (which it is the business of education to effect) is so far a determination of the will as in the individual by objects which the universal or national human will, of which the will of the individual is a partial expression, has brought into existence, and is thus a determination of the will by itself. It consists (2) in a process of reflection, by which this feeling in the individual of what is expected of him becomes a conception (under whatever name) of something that universally should be, of something absolutely desirable, of a single end or object of life. The content of this conception may be no more than what was already involved in the individual's feeling of what is expected of him; that is to say, if called upon to state in detail what it is that has to be done for the attainment of the absolute moral end or in obedience to the law of what universally should be, he might only be able to specify conduct which, apart from any such explicit conception, he felt was expected of him. For all that there is a great difference between feeling that a certain line of conduct is expected of me and conceiving it as a form of a universal duty. So long as the requirements of established morality are felt in the former way, they present themselves to the man as imposed from without. Hence, though they are an expression of practical reason, as operating in previous generations of men, yet, unless the individual conceives them as relative to an absolute end common to him with all men, they become antagonistic to the practical reason which operates in him, and which in him is the source at once of the demand for self-satisfaction and of the effort to find himself in, to carry his own unity into, all things presented to him. Unless the actions required of him by 'the divine law, the civil law, and the law of opinion or reputation' (to use Locke's classification) tend to realise his own idea of what should be or is good on the whole, they do not form an object which, as contemplated, he can harmonise with the other objects which he seeks to understand, nor, as a practical object, do they form one in the attainment of which he can satisfy himself. Hence before the completion of the process through which the individual comes to conceive the performance of the actions expected of him under the general form of a duty which in the freedom of his own reason he recognises as binding, there is apt to occur a revolt against conventional morality. The issue of this may either be an apparent suspension of the moral growth of the individual, or a clearer apprehension of the spirit underlying the letter of the obligations laid on him by society, which makes his rational recognition of duty, when arrived at, a much more valuable influence in promoting the moral growth of society.
25. Process (2), which may be called a reconciliation of reason with itself, because it is the appropriation by reason as a personal principle in the individual of the work which reason, acting through the media of other persons, has already achieved in the establishment of conventional morality, is the condition of the third stage in which the moral progress of the individual consists; viz. the growth of a personal interest in the realisation of an idea of what should be, in doing what is believed to contribute to the absolutely desirable, or to human perfection, because it is believed to do so. Just so far as this interest is formed, the reconciliation of the two modes in which the practical reason operates in the individual is effected. The demand for self-satisfaction (practical reason as the will of the individual) is directed to the realisation of an ideal object, the conceived 'should be,' which practical reason as our reason constitutes. The 'autonomy of the will' is thus attained in a higher sense than it is in the 'adjustment' described under (1), because the objects to which it is directed are not merely determined by customs and institutions which are due to the operation of practical reason in previous ages, but are embodiments or expressions of the conception of what absolutely should be as formed by the man who seeks to satisfy himself in their realisation. Indeed, unless in the stage of conformity to conventional morality the principle of obedience is some feeling (though not a clear conception) of what should be, of the desirable as distinct from the desired,—if it is merely fear of pain or hope of pleasure,—there is no approach to autonomy of the will or moral freedom in the conformity. We must not allow the doctrine that such freedom consists in a determination of the will by reason, and the recognition of the truth that the requirements of conventional morality are a product of reason as operating in individuals of the past, to mislead us into supposing that there is any moral freedom, or anything of intrinsic value, in the life of conventional morality as governed by 'interested motives,' by the desire, directly or indirectly, to obtain pleasure. There can be no real determination of the will by reason unless both reason and will are operating in one and the same person. A will is not really anything except as the will of a person, and, as we have seen, a will is not really determinable by anything foreign to itself: it is only determinable by an object which the person willing makes his own. As little is reason really anything apart from a self-conscious subject, or as other than an idea of perfection to be realised in and by such a subject. The determination of will by reason, then, which constitutes moral freedom or autonomy, must mean its determination by an object which a person willing, in virtue of his reason, presents to himself, that object consisting in the realisation of an idea of perfection in and by himself. Kant's view that the action which is merely 'pflichtmässig,' not done 'aus Pflicht,' [1] is of no moral value in itself, whatever may be its possible value as a means to the production of the will which does act 'aus Pflicht,' is once for all true, though he may have taken too narrow a view of the conditions of actions done 'aus Pflicht,' especially in supposing (as he seems to do) that it is necessary to them to be done painfully. There is no determination of will by reason, no moral freedom, in conformity of action to rules of which the establishment is due to the operation of reason or the idea of perfection in men, unless the principle of conformity in the persons conforming is that idea itself in some form or other.
[1] [German aus Pflicht = from duty, pflichtmässig = consistent with duty—Tr.]
Note of the Editor.
These lectures, which are partly critical and partly expository, treat of the moral grounds upon which the state is based and upon which obedience to the law of the state is justified. They were delivered in 1879-80, following upon the course from which the discussion of Kant's moral theory in this volume is taken. The two courses are directly connected, civil institutions being throughout regarded as the external expression of the moral progress of mankind, and as supplying the material through which the idea of perfection must be realised.
As is implied in section 5, the inquiry into the nature of political obligation forms part of a wider inquiry into the concrete forms of morality in general, 'the detail of goodness.' The lecturer had intended to complete the course by a consideration of 'social virtues' and 'moral sentiments'; but this intention was not carried out. (See section 251.)
1. The subject of this course of lectures is the principles of political obligation; and that term is intended to include the obligation of the subject towards the sovereign, the obligation of the citizen towards the state, and the obligation of individuals to each other as enforced by a political superior. My purpose is to consider the moral function or object served by law, or by the system, of rights and obligations which the state enforces, and in so doing to discover the true ground or justification for obedience to law. My plan will be (1) to state in outline what I consider the true function of law to be, this being at the same time the true ground of our moral duty to obey the law; and throughout I distinguish moral duty from legal obligation; (2) to examine the chief doctrines of political obligation that have been current in modern Europe, and by criticising them to bring out more clearly the main points of a truer doctrine; (3) to consider in detail the chief rights and obligations enforced in civilised states, inquiring what is their justification, and what is the ground for respecting them on the principle stated.
2. In previous lectures I have explained what I understand moral goodness to be, and how it is possible that there should be such a thing; in other words, what are the conditions on the part of reason and will which are implied in our being able to conceive moral goodness as an object to be aimed at, and to give some partial reality to the conception. Our results on this question may be briefly stated as follows.
The highest moral goodness we found was an attribute of character, in so far as it issued in acts done for the sake of their goodness, not for the sake of any pleasure or any satisfaction of desire which they bring to the agent. But it is impossible that an action should be done for the sake of its goodness, unless it has been previously contemplated as good for some other reason than that which consists in its being done for the sake of its goodness. It must have been done, or conceived as possible to be done, and have been accounted good, irrespectively of the being done from this which we ultimately come to regard as the highest motive. In other words, a prior morality, founded upon interests which are other than the pure interest in being good, and governed by rules of conduct relative to a standard of goodness other than that which makes it depend on this interest, is the condition of there coming to be a character governed by interest in an ideal of goodness. Otherwise this ideal would be an empty one; it would be impossible to say what the good actions were, that were to be done for the sake of their goodness; and the interest in this ideal would be impossible, since it would be an interest without an object.
3. When, however, morality of the latter kind has come to be recognised as the highest or the only true morality, the prior morality needs to be criticised from the point of view thus gained. Those interests, other than the interest in being good, which form the motives on the part of the individual on which it rests, will not indeed be rejected as of no moral value; for no one can suppose that without them, or except as regulating them, the pure interest in being good could determine conduct at all. But they will be estimated according to their value as leading up to, or as capable of becoming elements in, a character in which this interest is the governing principle. Again, those rules of conduct, according to which the terms right and wrong, good and bad, are commonly applied, and which, as was just now said, are relative to a standard certainly not founded on the conception of the good as consisting in the character described, are not indeed to be rejected; for without them there would be nothing to define the duties which the highest character is prepared to do for their own sake. But they have to be revised according to a method which inquires into their rationale or justification, as conditions of approximation to the highest character.
4. Such a criticism of moral interests—of the general motives which determine moral conduct and regulate such moral approbation or disapprobation as is not based on a strict theory of moral good—may be called by the name of 'a theory of moral sentiments.' The criticism of recognised rules of conduct will fall under two heads, according as these rules are embodied in positive law (law of which the observance is enforced on the individual by a political superior), or only form part of the 'law of opinion' (part of what the individual feels to be expected of him by some person or persons to whose expectations he ought to conform).
5. Moral interests are so greatly dependent on generally recognised rules of conduct that the criticism of the latter should come first. The law of opinion, again, in so many ways presupposes a social fabric supported by 'positive' law, that we can only fairly take account of it when we have considered the moral value and justifiability of the fabric so supported. I propose therefore to begin our inquiry into the detail of goodness—into the particular kinds of conduct which the man wishing to do good for the sake of its goodness is entitled to count good—by considering what is of permanent moral value in the institutions of civil life, as established in Europe; in what way they have contributed and contribute to the possibility of morality in the higher sense of the term, and are justified, or have a moral claim upon our loyal conformity, in consequence.
6. The condition of a moral life is the possession of will and reason. Will is the capacity in a man of being determined to action by the idea of a possible satisfaction of himself. An act of will is an action so determined. A state of will is the capacity as determined by the particular objects in which the man seeks self-satisfaction; and it becomes a character in so far as the self-satisfaction is habitually sought in objects of a particular kind. Practical reason is the capacity in a man of conceiving the perfection of his nature as an object to be attained by action. All moral ideas have their origin in reason, i.e. in the idea of a possible self-perfection to be attained by the moral agent. This does not mean that the moral agent in every stage of his progress could state this idea to himself in an abstract form, any more than in every stage in the acquisition of knowledge about nature a man can state to himself in an abstract form the conception of the unity of nature, which yet throughout conditions the acquisition of his knowledge. Ideas do not first come into existence, or begin to operate, upon the formation of an abstract expression for them. This expression is only arrived at upon analysis of a concrete experience, which they have rendered possible. Thus we only learn to express the idea of self-perfection in that abstract form upon an analysis of an experience of self-improvement which we have ourselves gone through, and which must have been gone through by those with whom we are connected by the possession of language and an organisation of life, however elementary: but the same analysis shows that the same idea must have been at work to make such experience possible. In this idea all particular moral ideas—all ideas of particular forms of conduct as estimable—originate, though an abstract expression for the latter is arrived at much sooner than such an expression for the idea in which they originate. They arise, as the individual's conception of the society on the well-being of which his own depends, and of the constituents of that well-being, becomes wider and fuller; and they are embodied in the laws, institutions, and social expectation, which make conventional morality. This embodiment, again, constitutes the moral progress of mankind. This progress, however, is only amoralprogress in so far as it tends to bring about the harmony of will and reason, in the only form in which it can really exist, viz. in the characters of persons. And this result is actually achieved, in so far as upon habits disciplined by conformity to conventional morality there supervenes an intelligent interest in some of the objects contributory to human perfection, which that conventional morality subserves, and in so far as that interest becomes the dominant interest of the character.
7. The value then of the institutions of civil life lies in their operation as giving reality to these capacities of will and reason, and enabling them to be really exercised. In their general effect, apart from particular aberrations, they render it possible for a man to be freely determined by the idea of a possible satisfaction of himself, instead of being driven this way and that by external forces, and thus they give reality to the capacity called will: and they enable him to realise his reason, i.e. his idea of self-perfection, by acting as a member of a social organisation in which each contributes to the better-being of all the rest. So far as they do in fact thus operate they are morally justified, and may be said to correspond to the 'law of nature,' thejus naturae, according to the only sense in which that phrase can be intelligibly used.
8. There has been much controversy as to what thejus naturae('Naturrecht') really is, or whether there is such a thing at all. And the controversy, when it comes to be dealt with in English, is further embarrassed by the fact that we have no one term to represent the full meaning of 'jus' or 'Recht,' as a system of correlative rights and obligations, actually enforced or that should be enforced by law. But the essential questions are: (1) whether we are entitled to distinguish the rights and obligations which are anywhere actually enforced by law from rights and obligations which really exist though not enforced; and (2), if we are entitled to do so, what is to be our criterion of rights and obligations which are really valid, in distinction from those that are actually enforced.
9. No one would seriously maintain that the system of rights and obligations, as it is anywhere enforced by law,—the 'jus' or 'Recht' of any nation—is all that it ought to be. Even Hobbes holds that a law, though it cannot be unjust, may be pernicious. But there has been much objection to the admission ofnaturalrights and obligations. At any rate the phrase is liable to misinterpretation. It may be taken to imply that rights and obligations can exist in a 'state of nature'—a state in which every individual is free to do as he likes—; that legal rights and obligations derive their authority from a voluntary act by which individuals contracted themselves out of this state; and that the individual retains from the state of nature certain rights with which no legal obligations ought to conflict. Such a doctrine is generally admitted to be untenable; but it does not follow from this that there is not a true and important sense in which natural rights and obligations exist,—the same sense as that in which duties may be said to exist though unfulfilled. There is a system of rights and obligations whichshould bemaintained by law, whether it is so or not, and which may properly be called 'natural'; not in the sense in which the term 'natural' would imply that such a system ever did exist or could exist independently of force exercised by society over individuals, but 'natural' because necessary to the end which it is the vocation of human society to realise.
10. The 'jus naturae,' thus understood, is at once distinguished from the sphere of moral duty, and relative to it. It is distinguished from it because admitting of enforcement by law. Moral duties do not admit of being so enforced. The question sometimes put, whether moral duties should be enforced by law, is really an unmeaning one; for they simply cannot be enforced. They are duties to act, it is true, and an act can be enforced: but they are duties to act from certain dispositions and with certain motives, and these cannot be enforced. Nay, the enforcement of an outward act, the moral character of which depends on a certain motive and disposition, may often contribute to render that motive and disposition impossible: and from this fact arises a limitation to the proper province of law in enforcing acts, which will have to be further considered below. When obligations then are spoken of in this connection, as part of the 'jus naturae' correlative to rights, they must always be understood not as moral duties, not as relative to states of will, but as relative to outward acts, of which the performance or omission can and should be enforced. There is a moral duty to discharge such obligations, and to do so in a certain spirit, but the obligation is such as that with which law has to do or may have to do, is relative to an outward act merely, and does not amount to a moral duty. There is a moral duty in regard to obligations, but there can be no obligation in regard to moral duties. Thus the 'jus naturae'—the system of rights and obligations, as it should become no less than as it actually is maintained—is distinct from morality in the proper sense. But it is relative to it. This is implied in saying that there is a moral duty in regard to actual obligations, as well as in speaking of the system of rights and obligations as it should become. If such language is justifiable, there must be a moral ground both for conforming to, and for seeking to develope and improve, established 'Recht'; a moral ground which can only lie in the moral end served by that established system.
11. Thus we begin the ethical criticism of law with two principles:—(1) that nothing but external acts can be matter of 'obligation' (in the restricted sense); and (2) that, in regard to that which can be made matter of obligation, the question what should be made matter of obligation—the question how far rights and obligations, as actually established by law, correspond to the true 'jus naturae'—must be considered with reference to the moral end, as serving which alone law and the obligations imposed by law have their value.[1]
[1] There are two definitions of 'Recht' or 'jus naturae,' quoted by Ulrici (Naturrecht, p. 219), which embody the truths conveyed in these statements. (1) Krause defines 'Recht' as 'das organische Ganze der äusseren Bedingungen des Vernunftlebens,' 'the organic whole of the outward conditions necessary to the rational life.' (2) Henrici says that 'Recht' is 'was der Idee der Unverletzbarkeit der materiellen wesentlichen Bedingungen des moralischen Menschenthums, d. h. der menschlichen Persönlichkeit nach ihrer Existenz und ihrer Vervollkommnung, oder der unveräusserlichen Menschengüter im äusserlichen Verkehr entspricht': i.e. 'Right is what' (or, 'that is properly matter of legal obligation which') 'in the outward intercourse of men corresponds to the idea of the inviolability of the essential material conditions of a moral humanity, i.e. of the human personality in respect of its existence and its perfection;' or, more simply, 'Right is that which is really necessary to the maintenance of the material conditions essential to the existence and perfection of human personality.' Cf. Trendelenburg,Naturrecht, Sect. 46. 'Das Recht ist im sittlichen Ganzen der Inbegriff derjenigen allgemeinen Bestimmungen des Handelns, durch welche es geschieht dass das sittliche Ganze und seine Gliederung sich erhalten und weiter bilden kann.' Afterwards he emphasises the words 'des Handelns,' and adds: 'Zwar kann das Handeln nicht ohne den Willen gedacht werden, der zum Grunde liegt: aber die Rechtbestimmungen sind nicht Bestimmungen des Willens als solchen, was dem innern Gebiet, der Ethik der Gesinnung, anheimfallen würde. Der Wille der nicht Handlung wird entzieht sich dem Recht. Wenn das Recht Schuld und Versehen,dolusundculpa, in sein Bereich zieht, so sind sie als innere aber charakteristische Beschaffenbeiten des Handelns anzusehen.'
12. Before proceeding, some remarks have to be made as to what is implied in these principles,(a)Does the law, or is it possible that it should, confine its view to external acts? What exactly is meant by an external act? In the case of obligations which I am legally punishable for disregarding, the law, in deciding whether punishment is or is not due, takes account of much beside the external act; and this implies that much beside external action is involved in legal obligation. In the case where the person or property of another is damaged by me, the law does not inquire merely whether the act of damage was done, and done by means of my bodily members, but whether it was done intentionally: and if not done with the direct intention of inflicting the damage, whether the damage arose in a manner that might have been foreseen out of something which I did intend to do: whether, again, if it was done quite accidentally the accident was due to culpable negligence. This, however, does not show that the law can enforce or prevent anything but external action, but only that it isactionwhich it seeks to enforce or prevent, for without intention there is no action. We talk indeed of a man acting against his will, but if this means acting against intention it is what it is impossible to do. What I call an act done against my will is either (1) an act done by someone else using my body, through superior force, as a means: in which case there is an act, but it is not mine (e.g. if another uses my hand to pull the trigger of a gun by which someone is shot); or (2) a natural event in which my limbs are affected in a certain way which causes certain results to another person (e.g. if the rolling of a ship throws me against another person who is thus thrown into the water); or (3) an act which I do under the influence of some strong inducement (e.g. the fear of death), but which is contrary to some strong wish. In this case the act is mine, but mine because I intend it; because it is not against my will as = intention. In saying, then, that the proper, because the only possible, function of law is to enforce the performance of or abstinence from external actions, it is implied that its function is to produce or prevent certain intentions, for without intention on the part of someone there is no act.
13. But if an act necessarily includes intention, what is the nature of the restriction implied in calling it external? An external action is a determination of will as exhibited in certain motions of the bodily members which produce certain effects in the material world; not a determination of the will as arising from certain motives and a certain disposition. All that the law can do is to enjoin or forbid determinations of will as exhibited in such motions, &c. It does indeed present a motive, for it enforces its injunctions and prohibitions primarily by fear, by its threat of certain consequences if its commands are disobeyed. This enforcement is not an exercise of physical force in the strict sense, for in this sense no force can produce an action, since it cannot produce a determination of will; and the only way in which the law or its administrators employ such force is not in the production but in the prevention of action (as when a criminal is locked up or the police prevent mischievous persons from assaulting us or breaking into our houses). But though, in enforcing its commands by threats, the law is presenting a motive, and thus, according to our distinction, affecting action on its inner side, it does this solely for the sake of the external act. It does not regard the relation of the act to the motive fear as of any intrinsic importance. If the action is performed without this motive ever coming into play under the influence of what the moralist counts higher motives, the purpose of the law is equally satisfied. Indeed, it is always understood that its purpose is most thoroughly served when the threat of pains and penalties has ceased to be necessary, and the obligations correlative to the relations of individuals and of societies are fulfilled from other motives. Its business is to maintain certain conditions of life—to see that certain actions are done which are necessary to the maintenance of those conditions, others omitted which would interfere with them. It has nothing to do with the motive of the actions or omissions, on which, however, the moral value of them depends.
14. It appears, then, that legal obligations—obligations which can possibly form the subject of positive law—can only be obligations to do or abstain from certain acts, not duties of acting from certain motives, or with a certain disposition. It is not a question whether the law should or should not oblige to anything but performance of outward acts. It simply cannot oblige to anything else, because the only means at its command for obtaining the fulfilment of obligations are (1) threats of pain and offers of reward, by means of which it is possible indeed to secure the general performance of certain acts, but not their performance from the motive even of fear of the pain threatened or hope of the reward offered, much less from any higher motive; (2) the employment of physical force,(a)in restraining men disposed to violate obligations,(b)in forcibly applying the labour or the property of those who violate obligations to make good the breach, so far as is possible: (as, e.g., when the magistrate forestalls part of a man's wages to provide for a wife whom he has deserted, or when the property of a debtor is seized for the benefit of his creditors.)
15. Only outward acts, then,canbe matter of legal obligation; but what sort of outward actsshouldbe matter of legal obligation? The answer to this question arises out of the above consideration of the means which law employs to obtain the fulfilment of obligations, combined with the view of law as relative to a moral end, i.e. the formation of a society of persons, acting from a certain disposition, from interest in the society as such. Those acts only should be matter of legal injunction or prohibition of which the performance or omission, irrespectively of the motive from which it proceeds, is so necessary to the existence of a society in which the moral end stated can be realised, that it is better for them to be done or omitted from that unworthy motive which consists in fear or hope of legal consequences than not to be done at all.
16. We distinguish, then, the system of rights actually maintained and obligations actually enforced by legal sanctions ('Recht' or 'jus') from the system of relations and obligations whichshould bemaintained by such sanctions ('Naturrecht'); and we hold that those actions or omissions should be made obligations which, when made obligations, serve a certain moral end; that this end is the ground or justification or rationale of legal obligation; and that thus we obtain a general rule, of both positive and negative application, in regard to the proper matter or content of legal obligation. For since the end consists in action proceeding from a certain disposition, and since action done from apprehension of legal consequences does not proceed from that disposition, no action should be enjoined or prohibited by law of which the injunction or prohibition interferes with actions proceeding from that disposition, and every action should be so enjoined of which the performance is found to produce conditions favourable to action proceeding from that disposition, and of which the legal injunction does not interfere with such action.
17. Does this general rule give any real guidance in the difficulties which practically arise in regard to the province of law—as to what should be required by law, and what left to the inclination of individuals? What cases are there or have there been of enactments which on this principle we can pronounce wrong? Have attempts ever been made by law to enforce acts as virtuous which lose their virtue when done under fear of legal penalties? It would be difficult, no doubt, to find instances of attempts to enforce by law actions of which we should say that the value lies in the disposition from which they are done, actions, e.g. of disinterested kindness, because the clear conception of virtue as depending not on outward results, but on disposition, is but slowly arrived at, and has never been reflected in law. But without any strictly moral object at all, laws have been made which check the development of the moral disposition. This has been done(a)by legal requirements of religious observance and profession of belief, which have tended to vitiate the religious source of morality;(b)by prohibitions and restraints, unnecessary, or which have ceased to be necessary, for maintaining the social conditions of the moral life, and which interfere with the growth of self-reliance, with the formation of a manly conscience and sense of moral dignity,—in short, with the moral autonomy which is the condition of the highest goodness;(c)by legal institutions which take away the occasion for the exercise of certain moral virtues (e.g. the Poor-law which takes away the occasion for the exercise of parental forethought, filial reverence, and neighbourly kindness).
18. Laws of this kind have often been objected to on the strength of a one-sided view of the function of laws; the view, viz., that its only business is to prevent interference with the liberty of the individual. And this view has gained undue favour on account of the real reforms to which it has led. The laws which it has helped to get rid of were really mischievous, but mischievous for further reasons than those conceived of by the supporters of this theory. Having done its work, the theory now tends to become obstructive, because in fact advancing civilisation brings with it more and more interference with the liberty of the individual to do as he likes, and this theory affords a reason for resisting all positive reforms, all reforms which involve an action of the state in the way of promoting conditions favourable to moral life. It is one thing to say that the state in promoting these conditions must take care not to defeat its true end by narrowing the region within which the spontaneity and disinterestedness of true morality can have play; another thing to say that it has no moral end to serve at all, and that it goes beyond its province when it seeks to do more than secure the individual from violent interference by other individuals. The true ground of objection to 'paternal government' is not that it violates the 'laissez faire' principle and conceives that its office is to make people good, to promote morality, but that it rests on a misconception of morality. The real function of government being to maintain conditions of life in which morality shall be possible, and morality consisting in the disinterested performance of self-imposed duties, 'paternal government' does its best to make it impossible by narrowing the room for the self-imposition of duties and for the play of disinterested motives.
19. The question before us, then, is, In what ways and how far do the main obligations enforced and rights maintained by law in all civilised societies contribute to the moral end described; viz. to establish those conditions of life in which a true, i.e. a disinterested or unselfish morality shall be possible? The answer to this question will be a theory of the 'jus naturae'; i.e. it will explain how far positive law is what it should be, and what is the ground of the duty to obey it; in other words, of political obligation. There are two things from which such a theory must be distinguished. (1) It is not an inquiry into the process by which actual law came to be what it is; nor (2) is it an inquiry how far actual law corresponds to and is derived from the exercise of certain original or natural rights. (1) It is not the former, because the process by which the law of any nation and the law in which civilised nations agree has come to be what it is, has not been determined by reference to that end to which we hold that law ought to be directed and by reference to which we criticise it. That is to say, the process has not been determined by any such conscious reference on the part of the agents in the process. No doubt a desire for social good as distinct from private pleasure, for what is good on the whole as distinct from what is good for the moment, has been a necessary condition of it; but(a), as an agent in the development of law, this has not reached the form of a conception of moral good according to that definition of it by which the value of law is to be estimated; and(b)in bringing law to its present state it has been indistinguishably blended with purely selfish passions and with the simple struggle for existence.
20. (2) A true theory of 'jus naturae,' a rationale of law or ideal of what it should be, is not to be had by inquiring how far actual law corresponds to, and is derived from, the exercise of certain original or natural rights, if that is taken to mean that we know, or can ascertain, what rights are natural on grounds distinct from those on which we determine what laws are justifiable, and that then we can proceed to ascertain what laws are justifiable by deduction from such rights. 'Natural rights,' so far as there are such things, are themselves relative to the moral end to which perfect law is relative. A law is not good because it enforces 'natural rights,' but because it contributes to the realisation of a certain end. We only discover what rights are natural by considering what powers must be secured to a man in order to the attainment of this end. These powers a perfect law will secure to their full extent. Thus the consideration of what rights are 'natural' (in the only legitimate sense) and the consideration what laws are justifiable form one and the same process, each presupposing a conception of the moral vocation of man.