137. I propose to pursue the inquiry, begun in my last course, into the nature and functions of the state. In the last course we were chiefly occupied with criticism. We have seen that no true conception of the rights of individuals against each other or against the state, or of the rights of the state over individuals, can be arrived at, while we look upon the state merely as an aggregation of individuals under a sovereign power that is able to compel their obedience, and consider this power of compelling a general obedience to be the characteristic thing in a state. So long as this view is retained, no satisfactory answer can be given to the question, by what right the sovereign compels the obedience of individuals. It can only be met either by some device for representing the individuals as so consenting to the exercise of sovereign power over them that it is no violation of their individual rights, or by representing the rights of individuals as derived from the sovereign and thus as having no existence against it. But it is obviously very often against the will of individuals that the sovereign power is exercised over them; indeed if it were not so, its characteristic as a power of compulsion would be lost; it would not be a sovereign power; and the fact that the majority of a given multitude may consent to its exercise over an unconsenting minority, is no justification for its exercise over that minority, if its justification is founded on consent; the representation that the minority virtually consent to be bound by the will of the majority being an obvious fiction. On the other hand, the theory that all right is derived from a sovereign, that it is a power of which the sovereign secures the exercise to the individual, and that therefore there can be no right against the sovereign, conflicts with the primary demands of human consciousness. It implies the identification of 'I ought' with 'I am forced to.' Reducing the 'right' of the sovereign simply to a power, it makes it unintelligible that this power should yet represent itself as a right, and claim obedience to itself as such. No such theory indeed admits of consistent statement. To say (with Hobbes) that a law may be inequitable or pernicious, though it cannot be unjust, is to admit a criticism of laws, a distinction between those enactments of the sovereign which are what they should be and those which are not. And this is to recognise the individual's demand for a justification of the laws which he obeys; to admit in effect that there is some rule of right, of which the individual is conscious, and to which law ought to conform.
138. It is equally impossible, then, to hold that the right of the sovereign power in a state over its members is dependent on their consent, and, on the other hand, that these members have no rights except such as are constituted and conferred upon them by the sovereign. The sovereign, and the state itself as distinguished by the existence of a sovereign power, presupposes rights and is an institution for their maintenance. But these rights do not belong to individuals as they might be in a state of nature, or as they might be if each acted irrespectively of the others. They belong to them as members of a society in which each recognises the other as an originator of action in the same sense in which he is conscious of being so himself (as an 'ego,' as himself the object which determines the action), and thus regards the free exercise of his own powers as dependent upon his allowing an equally free exercise of his powers to every other member of the society. There is no harm in saying that they belong to individuals as such, if we understand what we mean by 'individual,' and if we mean by it a self-determining subject, conscious of itself as one among other such subjects, and of its relation to them as making it what it is; for then there is no opposition between the attachment of rights to the individuals as such and their derivation from society. They attach to the individual, but only as a member of a society of free agents, as recognising himself and recognised by others to be such a member, as doing and done by accordingly. A right, then, to act unsocially,—to act otherwise than as belonging to a society of which each member keeps the exercise of his powers within the limits necessary to the like exercise by all the other members,—is a contradiction. No one can say that, unless he has consented to such a limitation of his powers, he has a right to resist it. The fact of his not consenting would be an extinction of all right on his part.
139. The state then presupposes rights, and rights of individuals. It is a form which society takes in order to maintain them. But rights have no being except in a society of men recognising each other as ἴσοι καὶ ὅμοιοι. [1] They are constituted by that mutual recognition. In analysing the nature of any right, we may conveniently look at it on two sides, and consider it as on the one hand a claim of the individual, arising out of his rational nature, to the free exercise of some faculty; on the other, as a concession of that claim by society, a power given by it to the individual of putting the claim in force. But we must be on our guard against supposing that these distinguishable sides have any really separate existence. It is only a man's consciousness of having an object in common with others, a well-being which is consciously his in being theirs and theirs in being his,—only the fact that they are recognised by him and he by them as having this object,—that gives him the claim described. There can be no reciprocal claim on the part of a man and an animal each to exercise his powers unimpeded by the other, because there is no consciousness common to them. But a claim founded on such a common consciousness is already a claim conceded; already a claim to which reality is given by social recognition, and thus implicitly a right.
[1] [Greek ἴσοι καὶ ὅμοιοι (isoi kai homoioi) = equals and alike, plural Tr]
140. It is in this sense that a slave has 'natural rights' They are 'natural' in the sense of being independent of, and in conflict with, the laws of the state in which he lives, but they are not independent of social relations. They arise out of the fact that there is a consciousness of objects common to the slave with those among whom he lives,—whether other slaves or the family of his owner,—and that this consciousness constitutes at once a claim on the part of each of those who share it to exercise a free activity conditionally upon his allowing a like activity in the others, and a recognition of this claim by the others through which it is realised. The slave thus derives from his social relations a real right which the law of the state refuses to admit. The law cannot prevent him from acting and being treated, within certain limits, as a member of a society of persons freely seeking a common good. Now that capability of living in a certain limited community with a certain limited number of human beings, which the slave cannot be prevented from exhibiting, is in principle a capability of living in community with any other human beings, supposing the necessary training to be allowed; and as every such capability constitutes a right, we are entitled to say that the slave has a right to citizenship, to a recognised equality of freedom with any and every one with whom he has to do, and that in refusing him not only citizenship but the means of training his capability of citizenship, the state is violating a right founded on that common human consciousness which is evinced both by the language which the slave speaks, and by actual social relations subsisting between him and others. And on the same principle upon which a state is violating natural rights in maintaining slavery, it does the same in using force, except under the necessity of self-defence, against members of another community. Membership of any community is so far, in principle, membership of all communities as to constitute a right to be treated as a freeman by all other men, to be exempt from subjection to force except for prevention of force.
141. A man may thus have rights as a member of a family or of human society in any other form, without being a member of a state at all,—rights which remain rights though any particular state or all states refuse to recognise them; and a member of a state, on the ground of that capability of living as a freeman among freemen which is implied in his being a member of a state, has rights as against all other states and their members. These latter rights are in fact during peace recognised by all civilised states. It is the object of 'private international law' to reduce them to a system. But though it follows from this that the state does not create rights, it may be still true to say that the members of a state derive their rights from the state and have no rights against it. We have already seen that a right against society, as such, is an impossibility; that every right is derived from some social relation: that a right against any group of associated men depends on association, as ἴσος καὶ ὅμοιος [1], with them and with some other men. Now for the member of a state to say that his rights are derived from his social relations, and to say that they are derived from his position as member of a state, are the same thing. The state is for him the complex of those social relations out of which rights arise, so far as those rights have come to be regulated and harmonised according to a general law, which is recognised by a certain multitude of persons, and which there is sufficient power to secure against violation from without and from within. The other forms of community which precede and are independent of the formation of the state, do not continue to exist outside it, nor yet are they superseded by it. They are carried on into it. They become its organic members, supporting its life and in turn maintained by it in a new harmony with each other. Thus the citizen's rights, e.g. as a husband or head of a family or a holder of property, though such rights, arising out of other social relations than that of citizen to citizen, existed when as yet there was no state, are yet to the citizen derived from the state, from that more highly developed form of society in which the association of the family and that of possessors who respect each other's possessions are included as in a fuller whole; which secures to the citizen his family rights and his rights as a holder of property, but under conditions and limitations which the membership of the fuller whole—the reconciliation of rights arising out of one sort of social capability with those arising out of another—renders necessary. Nor can the citizen have any right against the state, in the sense of a right to act otherwise than as a member of some society, the state being for its members the society of societies, the society in which all their claims upon each other are mutually adjusted.
[1] [Greek ἴσος καὶ ὅμοιος (isos kai homoios) = equal and alike, singular Tr.]
142. But what exactly is meant by the citizen's acting 'as a member of his state'? What does the assertion that he can have no right to act otherwise than as a member of his state amount to? Does it mean that he has no right to disobey the law of the state to which he belongs, whatever that law may be? that he is not entitled to exercise his power in any way that the law forbids and to refuse to exercise them in any way that it commands? This question was virtually dealt with before [1] in considering the justifiability of resistance to an ostensible sovereign. The only unqualified answer that can be given to it is one that may seem too general to be of much practical use, viz. that so far as the laws anywhere or at any time in force fulfil the idea of a state, there can be no right to disobey them; or, that there can be no right to disobey the law of the state except in the interest of the state; i.e. for the purpose of making the state in respect of its actual laws more completely correspond to what it is in tendency or idea, viz. the reconciler and sustainer of the rights that arise out of the social relations of men. On this principle there can be no right to disobey or evade any particular law on the ground that it interferes with any freedom of action, any right of managing his children or 'doing what he will with his own,' which but for that law the individual would possess. Any power which has been allowed to the individual up to a certain time, he is apt to regard as permanently his right. It has, indeed, been so far his right, if the exercise of that power has been allowed with any reference to social good, but it does not, as he is apt to think, remain his right when a law has been enacted that interferes with it. A man e.g. has been allowed to drive at any pace he likes through the streets, to build houses without any reference to sanitary conditions, to keep his children at home or send them to work 'analphabetic,' to buy or sell alcoholic drinks at his pleasure. If laws are passed interfering with any or all of these powers, he says that his rights are being violated. But he only possessed these powers as rights through membership of a society which secured them to him, and of which the only permanent bond consists in the reference to the well-being of its members as a whole. It has been the social recognition grounded on that reference that has rendered certain of his powers rights. If upon new conditions arising, or upon elements of social good being taken account of which had been overlooked before, or upon persons being taken into the reckoning as capable of participation in the social well-being who had previously been treated merely as means to its attainment,—if in any of these ways or otherwise the reference to social well-being suggest the necessity of some further regulation of the individual's liberty to do as he pleases, he can plead no right against this regulation, for every right that he has possessed has been dependent on that social judgment of its compatibility with general well-being which in respect to the liberties in question is now reversed.
[1] [Above, sections 100, 101. RLN]
143. 'Is then,' it may be asked, 'the general judgment as to the requirements of social well-being so absolutely authoritative that no individual right can exist against it? What if according to this judgment the institution of slavery is so necessary that citizens are prohibited by law from teaching slaves to read and from harbouring runaways? or if according to it the maintenance of a certain form of worship is so necessary that no other worship can be allowed and no opinion expressed antagonistic to it? Has the individual no rights against enactments founded on such accepted views of social well-being?' We may answer: A right against society as such, a right to act without reference to the needs or good of society, is an impossibility, since every right depends on some social relation, and a right against any group of associated men depends upon association on some footing of equality with them or with some other men. We saw how the right of the slave really rested on this basis, on a social capacity shown in the footing on which he actually lives with other men. On this principle it would follow, if we regard the state as the sustainer and harmoniser of social relations, that the individual can have no right against the state; that its law must be to him of absolute authority. But in fact, as actual states at best fulfil but partially their ideal function, we cannot apply this rule to practice. The general principle that the citizen must never act otherwise than as a citizen, does not carry with it an obligation under all conditions to conform to the law of his state, since those laws may be inconsistent with the true end of the state as the sustainer and harmoniser of social relations. The assertion, however, by the citizen of any right which the state does not recognise must be founded on a reference to an acknowledged social good. The fact that the individual would like to exercise the power claimed as a right does not render the exercise of it a right, nor does the fact that he has been hitherto allowed to exercise it render it a right, if social requirements have arisen under changed conditions, or have newly come to be recognised, with which its exercise is incompatible. The reason that the assertion of an illegal right must be founded on reference to acknowledged social good is that, as we have seen, no exercise of a power, however abstractedly desirable for the promotion of human good it might be, can be claimed as a right unless there is some common consciousness of utility shared by the person making the claim and those on whom it is made. It is not a question whether or no it ought to be claimed as a right; it simply cannot be claimed except on this condition. It would have been impossible, e.g., in an ancient state, where the symbol of social union was some local worship, for a monotheistic reformer to claim a right to attempt the subversion of that worship. If a duty to do so had suggested itself, consciousness of the duty could never have expressed itself in the form of a claim of right, in the absence of any possible sense of a public interest in the religious revolution to which the claim could be addressed. Thus, just as it is not the exercise of every power, properly claimable as a right, that is a right in the full or explicit sense of being legally established, so it is not every power, of which the exercise would be desirable in an ideal state of things, that is properly claimable as a right. The condition of its being so claimable is that its exercise should be contributory to some social good which the public conscience is capable of appreciating, not necessarily one which in the existing prevalence of private interests can obtain due acknowledgment, but still one of which men in their actions and language show themselves to be aware.
144. Thus to the question, Has the individual no rights against enactments founded on imperfect views of social well-being? we may answer, He has no rights against them founded on any right to do as he likes. Whatever counter-rights he has must be founded on a relation to the social well-being, and that a relation of which his fellow -citizens are aware. He must be able to point to some public interest, generally recognised as such, which is involved in the exercise of the power claimed by him as a right; to show that it is not the general well-being, even as conceived by his fellow-citizens, but some special interest of a class that is concerned in preventing the exercise of the power claimed. In regard to the right of teaching or harbouring the slave, he must appeal to the actual capacity of the slave for community with other men as evinced in the manner described above, to the recognition of this capacity as shown by the actual behaviour of the citizens in many respects towards the slave, to the addition to social well-being that results from the realisation of this capacity in all who possess it through rights being legally guaranteed to them. In this way he must show that the reference to social well-being, on which is founded the recognition of powers as rights, if fairly and thoroughly carried out, leads to the exercise of powers in favour of the slave, in the manner described, not to the prohibition of that exercise as the supposed law prohibits it. The response which in doing so he elicits from the conscience of fellow-citizens shows that in talking of the slave as 'a man and a brother,' he is exercising what is implicitly his right, though it is a right which has not become explicit through legal enactments. This response supplies the factor of social recognition which, as we have seen, is necessary in order to render the exercise of any power a right. To have an implicit right, however, to exercise a power which the law disallows is not the same thing as having a right to exercise that right. The right may be claimed without the power being actually exercised so long as the law prohibits its exercise. The question, therefore, would arise whether the citizen was doing his duty as such—acting as a member of the state—if he not merely did what he could for the repeal of the law prohibiting the instruction of a slave or the assistance of runaways, but himself in defiance of the law instructed and assisted them. As a general rule, no doubt, even bad laws, laws representing the interests of classes or individuals as opposed to those of the community, should be obeyed. There can be no right to disobey them, even while their repeal is urged on the ground that they violate rights, because the public interest, on which all rights are founded, is more concerned in the general obedience to law than in the exercise of those powers by individuals or classes which the objectionable laws unfairly withhold. The maintenance of a duty prohibiting the import of certain articles in the interest of certain manufacturers would be no justification for smuggling these articles. The smuggler acts for his private gain, as does the man who buys of him; and no violation of the law for the private gain of the violator, however unfair the law violated, can justify itself by reference to a recognised public good, or consequently be vindicated as a right. On the other hand, there may be cases in which the public interest—not merely according to some remote philosopher's view of it, but according to conceptions which the people are able to assimilate—is best served by a violation of some actual law. It is so in regard to slavery when the public conscience has come to recognise a capacity for right (for exercising powers under the control of a reference to general well-being) in a body of men to whom legal rights have hitherto been refused, but when some powerful class in its own interest resists the alteration of the law. In such a case the violation of the law on behalf of the slave is not only not a violation in the interest of the violator; the general sense of right on which the general observance of law depends being represented by it, there is no danger of its making a breach in the law-abiding habits of the people.
145. 'But this,' it will be said, 'is to assume a condition of things in which the real difficulty of the question disappears. What is to be done when no recognition of the implicit rights of the slave can be elicited from the public conscience; when the legal prohibitions described are supported by the only conceptions of general good of which the body of citizens is capable? Has the citizen still a right to disregard these legal prohibitions? Is the assertion of such a right compatible with the doctrine that social recognition of any mode of action as contributory to the common good is necessary to constitute a right so to act, and that no member of a state can have a right to act otherwise than according to that position?' The question, be it observed, is not as to the right of the slave, but as to the right of the citizen to treat the slave as having rights in a state of which the law forbids his being so treated. The claim of the slave to be free, his right implicit to have rights explicit, i.e. to membership of a society of which each member is treated by the rest as entitled to seek his own good in his own way, on the supposition that he so seeks it as not to interfere with the like freedom of quest on the part of others, rests, as we have seen, on the fact that the slave is determined by conceptions of a good common to himself with others, as shown by the actual social relations in which he lives. No state-law can neutralise this right. The state may refuse him family rights and rights of property, but it cannot help his living as a member of a family, acting and being treated as a father, husband, son, or brother, and therefore cannot extinguish the rights which are necessarily involved in his so acting and being so treated. Nor can it prevent him from appropriating things and from associating with others on the understanding that they respect each other's appropriations, and thus possessing and exercising rights of property. He has thus rights which the state neither gives nor can take away, and they amount to or constitute a right to freedom in the sense explained. The state, under which the slave is a slave, refusing to recognise this right, he is not limited in its exercise by membership of the state. He has a right to assert his right to such membership in any way compatible with that susceptibility to the claims of human fellowship on which the right rests. Other men have claims upon him, conditioning his rights, but the state, as such, which refuses to recognise his rights, has no claim on him. The obligation to observe the law, because it is the law, does not exist for him.
146. It is otherwise with the citizen. The slave has a claim upon him to be treated in a certain way, the claim which is properly described as that of a common humanity. But the state which forbids him so to treat the slave has also a claim upon him, a claim which embodies many of the claims that arise out of a common humanity in a form that reconciles them with each other. Now it may be argued that the claim of the state is only absolutely paramount on the supposition that in its commands and prohibitions it takes account of all the claims that arise out of human fellowship; that its authority over the individual is in principle the authority of those claims, taken as a whole; that if, as in the case supposed, its ordinances conflict with those claims as possessed by a certain class of persons, their authority, which is essentially a conditional or derived authority, disappears; that a disregard of them in the interest of the claims which they disregard is really conformity to the requirements of the state according to its true end or idea, since it interferes with none of the claims or interests which the state has its value in maintaining or protecting, but, on the contrary, forces on the attention of members of the state claims which they hitherto disregarded; and that if the conscience of the citizens is so far mastered by the special private interests which the institution of slavery breeds that it cannot be brought to recognise action on the slave's behalf as contributory to a common good, yet there is no ground under such conditions for considering a man's fellow-citizens to be the sole organs of the recognition which is needed to render his power of action a right; that the needful recognition is at any rate forthcoming from the slave, and from all those acquainted with the action in whom the idea of a good common to each man with others operates freely.
147. This may be truly urged, but it does not therefore follow that the duty of befriending the slave is necessarily paramount to the duty of obeying the law which forbids his being befriended: and if it is possible for the latter duty to be paramount, it will follow, on the principle that there is no right to violate a duty, that under certain conditions the right of helping the slave may be cancelled by the duty of obeying the prohibitory law. It would be so if the violation of law in the interest of the slave were liable to result in general anarchy, not merely in the sense of the dissolution of this or that form of civil combination, but of the disappearance of the conditions under which any civil combination is possible; for such a destruction of the state would mean a general loss of freedom, a general substitution of force for mutual good-will in men's dealings with each other, that would outweigh the evil of any slavery under such limitations and regulations as an organised state imposes on it.
148. Returning from this digression, we resume our consideration of the nature and functions of the state. In order to understand this nature, we must understand the nature of those rights which do not come into being with the state, but arise out of social relations that may exist where a state is not; it being the first though not the only office of the state to maintain those rights. They depend for their existence, indeed, on society, a society of men who recognise each other as ἴσοι καὶ ὅμοιοι, as capable of a common well-being, but not on society's having assumed the form of a state. They may therefore be treated as claims of the individual without reference to the form of the society which concedes or recognises them, and on whose recognition, as we have seen, their nature as rights depends. Only it must be borne in mind that the form in which these claims are admitted and acted on by men in their dealings with each other varies with the form of society; that the actual form, e.g., in which the individual's right of property is admitted under a patriarchalrégimeis very different from that in which it is admitted in a state; and that though the principle of each right is throughout the same, it is a principle which only comes to be fully recognised and acted on when the state has not only been formed, but fully developed according to its idea.
149. The rights which may be treated as independent of the state in the sense explained are of course those which are commonly distinguished asprivate, in opposition topublicrights. 'If rights be analysed, they will be found to consist of several kinds. For, first, they are such as regard a man's own person; secondly, such as regard his dominion over the external and sensible things by which he is surrounded; thirdly, such as regard his private relations as a member of a family; fourthly, such as regard his social state or condition as a member of the community: the first of which classes may be designated aspersonal rights; the second, asrights of property; the third, asrights in private relations; and the fourth, aspublic rights.' (Stephen,Comm., I, p. 136.)
150. An objection might fairly be made to distinguishing one class of rights as 'personal,' on the ground that all rights are so; not merely in the legal sense of 'person' according to which the proposition is a truism, since every right implies a person as its subject, but in the moral sense, since all rights depend on that capacity in the individual for being determined by a conception of well-being, as an object at once for himself and for others, which constitutes personality in the moral sense. By personal rights in the above classification are meant rights of life and liberty, i.e. of preserving one's body from the violence of other men, and of using it as an instrument only of one's own will; if of another's, still only through one's own. The reason why these come to be spoken of as 'personal' is probably the same with the reason why we talk of a man's 'person' in the sense simply of his body. They may, however, be reckoned in a special sense personal even by those who consider all rights personal, because the person's possession of a body and its exclusive determination by his own will is the condition of his exercising any other rights,—indeed, of all manifestation of personality. Prevent a man from possessing property (in the ordinary sense), and his personality may still remain. Prevent him (if it were possible) from using his body to express a will, and the will itself could not become a reality; he would not be really a person.
151. If there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly, to free life. No distinction can be made between the right to life and the right to liberty, for there can be no right to mere life, no right to life on the part of a being that has not also the right to use the life according to the motions of its own will. What is the foundation of this right? The answer is, capacity on the part of the subject for membership of a society, for determination of the will, and through it of the bodily organisation, by the conception of a well-being as common to self with others. This capacity is the foundation of the right, or the right potentially, which becomes actual through the recognition of the capacity by a society, and through the power which the society in consequence secures to the individual of acting according to the capacity. In principle, or intrinsically, or in respect of that which it has it in itself to become, the right is one that belongs to every man in virtue of his human nature (of the qualities that render him capable of any fellowship with any other men), and is a right as between him and any other men; because, as we have seen, the qualities which enable him to act as a member of any one society having the general well-being of its members for its object (as distinct from any special object requiring special talent for its accomplishment) form a capacity for membership of any other such society; but actually, or as recognised, it only gradually becomes a right of a man, as man, and against all men.
152. At first it is only a right of the man as a member of some one particular society, and a right as between him and the other members of that society, the society being naturally a family or tribe. Then, as several such societies come to recognise, in some limited way, a common well-being, and thus to associate on settled terms, it comes to be a right not merely between the members of any one of the societies, but between members of the several families or tribes in their dealings with each other, not, however, as men, but only as belonging to this or that particular family. This is the state of things in which, if one man is damaged or killed, compensation is made according to the terms of some customary law by the family or tribe of the offender to that of the man damaged or killed, the compensation varying according to the rank of the family. Upon this system, generally through some fusion of family demarcations and privileges, whether through pressure upward of a population hitherto inferior, or through a levelling effected by some external power, there supervenes one in which the relation between citizen and citizen, as such, is substituted for that between family and family as such. This substitution is one of the essential processes in the formation of the state. It is compatible, however, with the closest limitation of the privileges of citizenship, and implies no acknowledgment in man as man of the right to free life ascribed to the citizen as citizen. In the ancient world the companion of citizenship is everywhere slavery, and it was only actual citizenship, not any such capacity for becoming a citizen as might naturally be held to be implied in civil birth, that was considered to give a right to live; for the exposure of children was everywhere practised [1] (and with the approval of the philosophers), a practice in strong contrast with the principle of modern law that even a child in the womb has a right to live.
[1] Tacitus speaks of it as a peculiarity of the Jews and Germans that they did not allow the killing of younger children (Hist., V, 5;Germ. 19). Aristotle (Pol. 1335, b, 19) enjoins that μηδὲν πεπηρωμένον shall be brought up, but seems to condemn exposure, preferring that the required limit of population should be preserved by destruction of the embryo, on the principle that τὸ ὅσιον καὶ τὸ μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται Plato's rule is the same as regards the defective children and the procuring abortion, but he leaves it in the dark whether he meant any healthy children, actually born, to be put out of the way (Rep. 460 C. and 461 C.).
[Greek μηδὲν πεπηρωμένον (meden peperomenon) = no deformed [child], τὸ ὅσιον καὶ τὸ μὴ διωρισμένον τῇ αἰσθήσει καὶ τῷ ζῆν ἔσται (to hosion kai to me diorismenon te aisthesei kai to zen estai) = what may lawfully be done in such cases [of children not deformed] depends on the question of sensation and life Tr]
153. The influences commonly pointed out as instrumental in bringing about the recognition of rights in the man, as independent of particular citizenship, are these: (1) The adjudication by Roman praetors of questions at issue between citizens and those who were not so, which led to the formation of the system of 'equity,' independent of the old civil law and tending gradually to be substituted for it. The existence of such a system, however, presupposes the recognition of rights so far independent of citizenship in a particular state as to obtain between citizens of different states. (2) The doctrine of a 'law of nature' applicable to dealings of all men, popularised by the Stoics. (3) The Christian conception of the universal redemption of a brotherhood, of which all could become members through a mental act within the power of all.
154. The admission of a right to free life on the part of every man, as man, does in fact logically imply the conception of all men as forming one society in which each individual has some service to render, one organism in which each has a function to fulfil. There can be no claim on society such as constitutes a right, except in respect of a capacity freely (i.e. under determination by conception of the good) to contribute to its good. If the claim is made on behalf of any and every human being, it must be a claim on human society as a whole, and there must be a possible common good of human society as a whole, conceivable as independent of the special conditions of particular societies, to render such a claim possible. We often find, however, that men assimilate a practical idea in respect of one of its implications without doing so in respect of the rest. Thus the idea of the individual's right to free life has been strongly laid hold of in Christendom in what may be called an abstract or negative way, but little notice has been taken of what it involves. Slavery is everywhere condemned. It is established that no one has a right to prevent the individual from determining the conditions of his own life. We treat life as sacred even in the human embryo, and even in hopeless idiots and lunatics recognise a right to live, a recognition which can only be rationally explained on either or both of two grounds: (1) that we do not consider either their lives, or the society which a man may freely serve, to be limited to this earth, and thus ascribe to them a right to live on the strength of a social capacity which under other conditions may become what it is not here; or (2) that the distinction between curable and incurable, between complete and incomplete, social incapacity is so indefinite that we cannot in any case safely assume it to be such as to extinguish the right to live. Or perhaps it may be argued that even in cases where the incapacity is ascertainably incurable, the patient has still a social function (as undoubtedly those who are incurably ill in other ways have), a passive function as the object of affectionate ministrations arising out of family instincts and memories; and that the right to have life protected corresponds to this passive social function. The fact, however, that we have almost to cast about in certain cases for an explanation of the established belief in the sacredness of human life, shows how deeply rooted that belief is unless where some counter-belief interferes with it.
155. On the other hand, it is equally noticeable that there are counter-beliefs which, under conditions, do neutralise it, and that certain other beliefs, which form its proper complement, have very slight hold on the mind of modern Christendom. It is taken for granted that the exigencies of the state in war, whether the war be necessary or not for saving the state from dissolution, absolutely neutralise the right to live. We are little influenced by the idea of the universal brotherhood of men, of mankind as forming one society with a common good, of which the conception may determine the action of its members. In international dealings we are apt to suppose that it can have no place at all. Yet, as has been pointed out, it is the proper correlative of the admission of a right to free life as belonging to man in virtue simply of his human nature. And though this right can only be grounded on the capacity, which belongs to the human nature, for freely fulfilling some function in the social organism, we do very little to give reality to the capacity or to enable it to realise itself. We content ourselves with enacting that no man shall be used by other men as a means against his will, but we leave it to be pretty much a matter of chance whether or no he shall be qualified to fulfil any social function, to contribute anything to the common good, and to do so freely (i.e. under the conception of a common good). The only reason why a man should not be used by other men simply as a means to their ends, is that he should use himself as a means to an end which is really his and theirs at once. But while we say that he shall not be used as a means, we often leave him without the chance of using himself for any social end at all.
156. Four questions then arise: (1) With what right do the necessities of war override the individual's right of life? (2) In what relation do the rights of states to act for their own interest stand to that right of human society, as such, of which the existence is implied in the possession of right by the individual as a member of that society, irrespectively of the laws of particular states? (3) On what principle is it to be assumed that the individual by a certain conduct of his own forfeits the right of free life, so that the state (at any rate for a time) is entitled to subject him to force; to treat him as an animal or a thing? Is this forfeiture ever so absolute and final that the state is justified in taking away his life? (4) What is the nature and extent of the individual's claim to be enabled to realise that capacity for contributing to a social good, which is the foundation of his right to free life?
157. (1) It may be admitted that to describe war as 'multitudinous murder' is a figure of speech. The essence of murder does not lie in the fact that one man takes away the life of another, but that he does this to 'gain his private ends' and with 'malice' against the person killed. I am not here speaking of the legal definition of murder, but of murder as a term of moral reprobation, in which sense it must be used by those who speak of war as 'multitudinous murder.' They cannot mean murder in the legal sense, because in that sense only 'unlawful killing,' which killing in war is not, is murder. When I speak of 'malice,' therefore, I am not using 'malice' in the legal sense. In that sense 'malice' is understood to be the attribute of every 'wrongful act done intentionally without just or lawful excuse,' [1] and is ascribed to acts (such as killing an officer of justice, knowing him to be such, while resisting him in a riot) in which there is no ill-will of the kind which we suppose in murder, when we apply the term in its natural sense as one of moral disapprobation. Of murder in the moral sense the characteristics are those stated, and these are not present in the case of a soldier who kills one on the other side in battle. He has no ill-will to that particular person or to any particular person. He incurs an equal risk with the person whom he kills, and incurs that risk not for the sake of killing him. His object in undergoing it is not private to himself, but a service (or what he supposes to be a service) to his country, a good which is his own no doubt (that is implied in his desiring it), but which he presents to himself as common to him with others. Indeed, those who might speak of war as 'multitudinous murder' would not look upon the soldier as a murderer. If reminded that there cannot be a murder without a murderer, and pressed to say who, when a bloody battle takes place, the murderer or murderers are, they would probably point to the authors of the war. It may be questioned, by the way, whether there has ever been a war of which the origination could be truly said to rest with a definite person or persons, in the same way in which the origination of an act which would be called murder in the ordinary sense rests with a particular person. No doubt there have been wars for which certain assignable individuals were specially blameable, wars which they specially helped to bring about or had special means of preventing (and the more the wickedness of such persons is kept in mind the better); but even in these cases the cause of the war can scarcely be held to be gathered up within the will of any individual, or the combined will of certain individuals, in the same way as is the cause of murder or other punishable acts. When A.B. is murdered, the sole cause lies in some definite volition of CD. or others, however that volition may have been caused. But when a war 'breaks out,' though it is not to be considered, as we are too apt to consider it, a natural calamity which could not be prevented, it would be hard to maintain that the sole cause lies in some definite volition on the part of some assignable person or persons, even of those who are most to blame. Passing over this point, however, if the acts of killing in war are not murders (in themoralsense, thelegalbeing out of the question) because they lack those characteristics on the part of the agent's state of mind which are necessary to constitute a murder, the persons who cause those acts to be committed, if such persons can be pointed out, are not the authors of murder, multitudinous or other. They would only be so if the characteristic of 'malice,' which is absent on the part of the immediate agent of the act, were present on their part as its ultimate agents. But this is not the case. However selfish their motives, they cannot fairly be construed into ill-will towards the persons who happened to be killed in the war; and therefore, whatever wickedness the persons responsible for the war are guilty of, they are not guilty of 'murder' in any natural sense of the term, nor is there any murder in the case at all.
[1] Markby,Elements of Law, sec. 226.
158. It does not follow from this, however, that war is ever other than a great wrong, as a violation on a multitudinous scale of the individual's right to life. Whether it is so or not must be discussed on other grounds. If there is such a thing as a right to life on the part of the individual man as such, is there any reason to doubt that this right is violated in the case of every man killed in war? It is not to the purpose to allege that in order to a violation of right there must be not only a suffering of some kind on the part of the subject of a right, but an intentional act causing it on the part of a human agent. There is of course no violation of right when a man is killed by a wild beast or a stroke of lightning, because there is no right as between a man and a beast or between a man and a natural force. But the deaths in a battle are caused distinctly by human agency and intentional agency. The individual soldier may not have any very distinct intention when he fires his rifle except to obey orders, but the commanders of the army and the statesmen who send it into the field intend the death of as many men as may be necessary for their purpose. It is true they do not intend the death of this or that particular person, but no more did the Irishman who fired into a body of police guarding the Fenian prisoners. It might fairly be held that this circumstance exempted the Irishman from the special moral guilt of murder, though according to our law it did not exempt him from the legal guilt expressed by that term; but no one would argue that it made the act other than a violation of the right to life on the part of the policeman killed. No more can the absence of an intention to kill this or that specific person on the part of those who cause men to be killed in battle save their act from being a violation of the right to life.
159. Is there then any condition on the part of the persons killed that saves the act from having this character? It may be urged that when the war is conducted according to usages that obtain between civilised nations, (not when it is a village-burning war like that between the English and Afghans), the persons killed are voluntary combatants, and οὐδεὶς ἀδικεῖται ἑκών [1]. Soldiers, it may be said, are in the position of men who voluntarily undertake a dangerous employment. If some of them are killed, this is not more a violation of the human right to life than is the death of men who have engaged to work in a dangerous coal-pit. To this it must be answered that if soldiers did in fact voluntarily incur the special risk of death incidental to their calling, it would not follow that the right to life was not violated in their being—killed. It is not a right which it rests with a man to retain or give up at his pleasure. It is not the less a wrong that a man should be a slave because he has sold himself into slavery. The individual's right to live is but the other side of the right which society has in his living. The individual can no more voluntarily rid himself of it than he can of the social capacity, the human nature, on which it is founded. Thus, however ready men may be for high wages to work in a dangerous pit, a wrong is held to be done if they are killed in it. If provisions which might have made it safe have been neglected, someone is held responsible. If nothing could make it safe, the working of the pit would not be allowed. The reason for not more generally applying the power of the state to prevent voluntary noxious employments, is not that there is no wrong in the death of the individual through the incidents of an employment which he has voluntarily undertaken, but that the wrong is more effectually prevented by training and trusting individuals to protect themselves than by the state protecting them. Thus the waste of life in war would not be the less a wrong,—not the less a violation of the right, which subsists between all members of society, and which none can alienate, that each should have his life respected by society,—if it were the fact that those whose lives are wasted voluntarily incurred the risk of losing them. But it can scarcely be held to be the fact. Not only is it impossible, even when war is conducted on the most civilised methods, to prevent great incidental loss of life (to say nothing of other injury) among non-combatants; the waste of the life of the combatants is one which the power of the state compels. This is equally true whether the army is raised by voluntary enlistment or by conscription. It is obviously so in the case of conscription; but under a system of voluntary enlistment, though the individual soldier cannot say that he in particular has been compelled by the government to risk his life, it is still the case that the state compels the risk of a certain number of lives. It decrees that an army of such a size shall be raised, though if it can get the men by voluntary hiring it does not exercise compulsion on the men of a particular age, and it sends the army into the field. Its compulsive agency causes the death of the soldiers killed, not any voluntary action on the part of the soldiers themselves. The action of the soldiers no doubt contributes to the result, for if they all refused to fight there would be no killing, but it is an action put in motion and directed by the power of the state, which is compulsive in the sense that it operates on the individual in the last resort through fear of death.
[1] [Greek οὐδεὶς ἀδικεῖται ἑκών (oudeis adikeitai hekon) = there can be no injustice to a person who has agreed to what is done to him Tr.]
160. We have then in war a destruction of human life inflicted on the sufferers intentionally by voluntary human agency. It is true, as we saw, that it is not easy to say in any case by whose agency in particular. We may say indeed that it is by the agency of the state, but what exactly does that mean? The state here must = the sovereign power in the state; but it is always difficult to say by whom that power is wielded, and if we could in any case specify its present holders, the further question will arise whether their course of action has not been shaped for them by previous holders of power. But however widely distributed the agency may be which causes the destruction of life in war, it is still intentional human agency. The destruction is not the work of accident or of nature. If then it is to be other than a wrong, because a violation of the right to mutual protection of life involved in the membership of human society, it can only be because there is exercised in war some right that is paramount to this. It may be argued that this is the case; that there is no right to the preservation of life at the cost of losing the necessary conditions of 'living well'; that war is in some cases the only means of maintaining these conditions, and that where this is so, the wrong of causing the destruction of physical life disappears in the paramount right of preserving the conditions under which alone moral life is possible.
161. This argument, however, seems to be only available for shifting the quarter in which we might be at first disposed to lay the blame of the wrong involved in war, not for changing the character of that wrong. It goes to show that the wrong involved in the death of certain soldiers does not necessarily lie with the government which sends those soldiers into the field, because this may be the only means by which the government can prevent more serious wrong; it does not show that there is no wrong in their death. If the integrity of any state can only be maintained at the cost of war, and if that state is more than what many so-called states have been,—more than an aggregation of individuals or communities under one ruling power,—if it so far fulfils the idea of a state, that its maintenance is necessary to the free development of the people belonging to it; then by the authorities or people of that state no wrong is done by the destruction of life which war involves, except so far as they are responsible for the state of things which renders the maintenance of the integrity of the state impossible by other means. But how does, it come about that the integrity of such a state is endangered? Not by accident or by the forces of nature, but by intentional human agency in some form or other, however complicated; and with that agency lies the wrong-doing. To determine it (as we might be able to do if a horde of barbarians broke in on a civilised state, compelling it to resort to war for its defence) is a matter of small importance: whatisimportant to bear in mind (being one of those obvious truths out of which we may allow ourselves to be sophisticated), is that the destruction of life in war is always wrong-doing, whoever be the wrong-doer, and that in the wars most strictly defensive of political freedom the wrong-doing is only removed from the defenders of political freedom to be transferred elsewhere. If it is difficult in any case to say precisely where, that is only a reason for more general self-reproach, for a more humbling sense (as the preachers would say) of complicity in that radical (but conquerable, because moral) evil of mankind which renders such a means of maintaining political freedom necessary. The language, indeed, which we hear from the pulpit about war being a punishment for the sins of mankind, is perfectly true, but it needs to be accompanied by the reminder that this punishment of sin is simply a consequence of the sin and itself a further sin, brought about by the action of the sinner, not an external infliction brought about by agencies to which man is not a party.
162. In fact, however, if most wars had been wars for the maintenance or acquisition of political freedom, the difficulty of fixing the blame of them, or at any rate of freeing one of the parties in each case from blame, would be much less than it really is. Of the European wars of the last four hundred years, how many could be fairly said to have been wars in which either or any of the parties were fighting for this end? Perhaps the wars in which the Dutch Republics defended themselves against Spain and against Louis XIV, and that in which Germany shook off the dominion of Napoleon. Perhaps the more recent struggles of Italy and Hungary against the Austrian Government. Perhaps in the first outset of the war of 1792 the French may be fairly held to have been defending institutions necessary for the development of social freedom and equality. In this war, however, the issue very soon ceased to be one between the defenders of such institutions on the one side, and their assailants on the other, and in most modern wars the issue has not been of this kind at all. The wars have arisen primarily out of the rival ambition of kings and dynasties for territorial aggrandisement, with national antipathies and ecclesiastical ambitions, and the passions arising out of religious partisanship, as complicating influences. As nations have come more and more to distinguish and solidify themselves, and a national consciousness has come definitely to be formed in each, the rival ambitions of nations have tended more and more first to support, then perhaps to supersede, the ambitions of dynasties as causes of war. The delusion has been practically dominant that the gain of one nation must mean the loss of another. Hence national jealousies in regard to colonial extension, hostile tariffs and the effort of each nation to exclude others from its markets. The explosion of this idea in the region of political economy has had little effect in weakening its hold on men's minds. The people of one nation still hear with jealousy of another nation's advance in commerce, as if it meant some decay of their own. And if the commercial jealousy of nations is very slow in disappearing, their vanity, their desire apart from trade each to become or to seem stronger than the other, has very much increased. A hundred and fifty years ago national vanity could scarcely be said to be an influence in politics. The people under one ruler were not homogeneous enough, had not enough of a corporate consciousness, to develope a national vanity. Now (under the name of patriotism) it has become a more serious disturber of peace than dynastic ambition. Where the latter is dangerous, it is because it has national vanity to work upon.
163. Our conclusion then is that the destruction of life in war (to say nothing of other evils incidental to it with which we are not here concerned) is always wrong doing, with whomsoever the guilt of the wrong-doing may lie; that only those parties to a war are exempt from a share in the guilt who can truly plead that to them war is the only means of maintaining the social conditions of the moral development of man, and that there have been very few cases in which this plea could be truly made. In saying this it is not forgotten, either that many virtues are called into exercise by war, or that wars have been a means by which the movement of mankind, which there is reason for considering a progress to higher good, has been carried on. These facts do not make the wrong-doing involved in war any less so. If nothing is to be accounted wrong-doing through which final good is wrought, we must give up either the idea of there being such a thing as wrong-doing, or the idea of there being such a thing as final good. If final good results from the world of our experience, it results from processes in which wrong-doing is an inseparable element. Wrong-doing is voluntary action, either (in the deeper moral sense) proceeding from a will uninfluenced by the desire to be good on the part of the agent (which may be taken to include action tending to produce such action), or (in the sense contemplated by the 'jus naturae') it is action that interferes with the conditions necessary to the free-play and development of a good-will on the part of others. It may be that, according to the divine scheme of the world, such wrong-doing is an element in a process by which men gradually approximate more nearly to good (in the sense of a good will). We cannot think of God as a moral being without supposing this to be the case. But this makes no difference to wrong-doing in those relations in which it is wrong-doing, and with which alone we are concerned, viz. in relation to the will of human agents and to the results which those agents can foresee and intend to produce. If an action, so far as any results go which the agent can have in view or over which he has control, interferes with conditions necessary to the free-play and development of a good-will on the part of others, it is not the less wrong-doing because, through some agency which is not his, the effects which he intended, and which rendered it wrong-doing, come to contribute to an ulterior good. Nor, if it issues from bad will (in the sense explained), is it less wrong (in the moral sense) because this will is itself, in the view of some higher being, contributory to a moral good which is not, in whole or part, within the view of the agent. If then war is wrong-doing in both the above senses (as it is always, at any rate on the part of those with whom the ultimate responsibility for it lies), it does not cease to be so on account of any good resulting from it in a scheme of providence.
164. 'But,' it may be asked, 'are we justified in saying that it is always wrong-doing on the part of those with whom the ultimate responsibility lies? It is admitted that certain virtues may be evoked by war; that it may have results contributory to the moral progress of mankind; may not the eliciting of these virtues, the production of these results, be contemplated by the originators of war, and does not the origination of war, so far as influenced by such motives, cease to be wrong-doing? It must be admitted that Caesar's wars in Gaul were unprovoked wars of conquest, but their effect was the establishment of Roman civilisation with its equal law over a great part of western Europe, in such a way that it was never wholly swept away, and that a permanent influence in the progress of the European polity can be traced to it. May he not be credited with having had, however indefinitely, such an effect as this in view? Even if his wish to extend Roman civilisation was secondary to a plan for raising an army by which he might master the Republic, is he to have no credit for the beneficent results which are admitted to have ensued from the success of that plan? May not a similar justification be urged for English wars in India? If, again, the establishment of the civil unity of Germany and the liberation of Christian populations in Turkey are admitted to have been gains to mankind, is not that a justification of the persons concerned in the origination of the wars that brought about those results, so far as they can be supposed to have been influenced by a desire for them?'
165. These objections might be to the purpose if we were attempting the task (generally, if not always, an impossible one) of determining the moral desert, good or ill, of those who have been concerned in bringing this or that war about. Their tendency merely is to distribute the blame of the wrong-doing involved in war, to show how widely ramified is the agency in that wrong-doing, not to affect its character as wrong-doing. If the only way of civilising Gaul was to kill all the people whom Caesar's wars caused to be killed, and if the desire for civilising it was a prevailing motive in Caesar's mind, so much the better for Caesar, but so much the worse for the other unassignable and innumerable human agents who brought it about that such an object could only be attained in such a way. We are not, indeed, entitled to say that it could have been brought about in any other way. It is true to say (if we know what we are about in saying it) that nothing which happens in the world could have happened otherwise than it has. The question for us is, whether that condition of things which rendered e.g. Caesar's Gallic wars, with the violation of human rights which they involved, the interference in the case of innumerable persons with the conditions under which man can be helpful to man (physical life being the first of these), thesine qua nonin the promotion of ulterior human welfare, was or was not the work of human agency. If it was (and there is no doubt that it was, for to what merely natural agency could the necessity be ascribed?), then in that ordinary sense of the word 'could' in which it expresses our responsibility for our actions, mencouldhave brought about the good result without the evil means. They could have done so if they had been better. It was owing to human wickedness—if less on Caesar's part, then so much the more on the part of innumerable others—that the wrong-doing of those wars was the appropriate means to this ulterior good. So in regard to the other cases instanced. It is idle to speculate on other means by which the permanent pacification of India, or the unification of Germany, or the liberation of Christians in European Turkey might have been brought about; but it is important to bear in mind that the innumerable wrong acts involved in achieving them—acts wrong, because violations of the rights of those directly affected by them—did not cease to be wrong acts because under the given condition of things the results specified would not have been obtained without them. This given condition of things was not like that (e.g.) which compels the castaways from a shipwreck, so many days from shore, and with only so much provision in their boat, to draw lots which shall be thrown overboard. It was a condition of things which human wickedness, through traceable and untraceable channels, brought about. If the individual promoters of wars, which through the medium of multitudinous wrong-doing have yielded good to mankind, have been really influenced by a desire for any such good,—and much scepticism is justified in regard to such a supposition,—then so much less of the guilt of the wrong-doing has been theirs. No nation, at any rate, that has taken part in such wars can fairly take credit for having been governed by such a motive. It has been either a passive instrument in the hands of its rulers, or has been animated by less worthy motives, very mixed, but of which perhaps a diffused desire for excitement has been the most innocent. On what reasonable ground can Englishmen or Germans or Russians claim that their several nations took part in the wars by which India was pacified, Germany unified, Bulgaria liberated, under the dominant influence of a desire for human good? Rather, if the action of a national conscience in such matters is possible at all, they should take shame for their share in that general human selfishness which rendered certain conditions of human development only attainable by such means.
166. (2) Reverting then to the questions which arose [1] out of the assertion of a right to free life on the part of the individual man as such, it appears that the first must be answered in the negative. No state of war can make the destruction of man's life by man other than a wrong, though the wrong is not always chargeable upon all the parties to a war. The second question is virtually answered by what has been said about the first. In regard to the state according to its idea the question could not arise, for according to its idea the state is an institution in which all rights are harmoniously maintained, in which all the capacities that give rise to rights have free-play given to them. No action in its own interest of a state that fulfilled this idea could conflict with any true interest or right of general society, of the men not subject to its law taken as a whole. There is no such thing as an inevitable conflict between states. There is nothing in the nature of the state that, given a multiplicity of states, should make the gain of the one the loss of the other. The more perfectly each one of them attains its proper object of giving free scope to the capacities of all persons living on a certain range of territory, the easier it is for others to do so; and in proportion as they all do so the danger of conflict disappears.
[1] [Above, sec. 156. RLN]
167. On the other hand, the imperfect realisation of civil equality in the full sense of the term in certain states, is in greater or less degree a source of danger to all. The presence in states either of a prerogatived class or of a body of people who, whether by open denial of civil rights or by restrictive laws, are thwarted in the free development of their capacities, or of an ecclesiastical organisation which disputes the authority of the state on matters of right and thus prevents the perfect civil fusion of its members with other citizens, always breeds an imagination of there being some competition of interests between states. The privileged class involuntarily believes and spreads the belief that the interest of the state lies in some extension without, not in an improvement of organisation within. A suffering class attracts sympathy from without and invites interference with the state which contains it; and that state responds, not by healing the sore, but by defending against aggression what it conceives to be its special interests, but which are only special on account of its bad organisation. Or perhaps the suffering population overflows into another state, as the Irish into America, and there becomes a source not only of internal difficulty but of hostile feeling between it and the state where the suffering population still survives. People, again, who, in matters which the state treats as belonging to itself, take their direction from an ecclesiastical power external to the state under which they live, are necessarily in certain relations alien to that state, and may at any time prove a source of apparently conflicting interests between it and some other state, which under the influence of the hostile ecclesiastical power espouses their cause. Remove from European states, as they are and have been during the last hundred years, the occasions of conflict, the sources of apparently competing interests, which arise in one or other of the ways mentioned,—either from the mistaken view of state-interests which a privileged class inevitably takes, or from the presence in them of oppressed populations, or from what we improperly call the antagonism of religious confessions,—and there would not be or have been anything to disturb the peace between them. And this is to say that the source of war between states lies in their incomplete fulfilment of their function; in the fact that there is some defect in the maintenance or reconciliation of rights among their subjects.
168. This is equally true in regard to those causes of conflict which are loosely called 'religious.' These do not arise out of any differences between the convictions of different people in regard to the nature of God or their relations to Him, or the right way of worshipping Him. They arise either out of some aggression upon the religious freedom of certain people, made or allowed by the powers of the state, which thus puts these people in the position of an alien or unenfranchised class, or else out of an aggression on the rights of the state by some corporation calling itself spiritual but really claiming sovereignty over men's actions in the same relations in which the state claims to determine them. There would be nothing tending to international disturbance in the fact that bodies of people who worship God in the Catholic manner live in a state where the majority worship in the Greek or Protestant manner, and alongside of another state where the majority is Catholic, but for one or other or both of these circumstances, viz. that the Catholic worship and teaching is interfered with by the Protestant or Greek state, and that Catholics are liable to a direction by a power which claims to regulate men's transactions with each other by a law of its own, and which may see fit (e.g.) to prohibit the Catholic subjects in the Greek or Protestant state from being married, or having their parents buried, or their children taught the necessary arts, in the manner which the state directs. This reciprocal invasion of right, the invasion of the rights of the state by the church on the one side, and on the other the restriction placed by the sovereign upon the subject's freedom, not of conscience, (for that is impossible), but of expressing his conscience in word and act, has sometimes caused a state of things in which certain of the subjects of a state have been better affected to another state than to their own, and in such a case there is an element of natural hostility between the states. An obvious instance to give of this relation between states would have been that between Russia and Turkey, if Turkey could be considered to have been constituted as a state at all. Perhaps a better instance would be the position of Ireland in the past; its disaffection to England and gravitation, first to France, then to the United States, caused chiefly by Protestant penal laws which in turn were at least provoked by the aggressive attitude of the church towards the English state. Whenever a like invasion of rights still takes place, e.g. in the treatment of the Catholic subjects of Russia in Poland, in the ultramontane movement of resistance to certain requirements of the state among the Catholic subjects of Germany, it tends to international conflict. And what is now a somewhat remote tendency has in the past been a formidable stimulant to war.
169. It is nothing then in the necessary organisation of the state, but rather some defect of that organisation in relation to its proper function of maintaining and reconciling rights, of giving scope to capacities, that leads to a conflict of apparent interests between one state and another. The wrong, therefore, which results to human society from conflicts between states cannot be condoned on the ground that it is a necessary incident of the existence of states. The wrong cannot be held to be lost in a higher right, which attaches to the maintenance of the state as the institution through which alone the freedom of man is realised. It is not the state, as such, but this or that particular state, which by no means fulfils its purpose, and might perhaps be swept away and superseded by another with advantage to the ends for which the true state exists, that needs to defend its interests by action injurious to those outside it. Hence there is no ground for holding that a state is justified in doing whatever its interests seem to require, irrespectively of effects on other men. If those effects are bad, as involving either a direct violation of personal rights or obstruction to the moral development of society anywhere in the world, then there is no ultimate justification for the political action that gives rise to them. The question can only be (as we have seen generally in regard to the wrong-doing of war), where in particular the blame lies. Whether there is any justification for a particular state, which in defence of its interests inflicts an injury on some portion of mankind; whether, e.g., the Germans are justified in holding Metz, on the supposition that their tenure of such a thoroughly French town necessarily thwarts in many ways the healthy activity of the inhabitants, or the English in carrying fire and sword into Afghanistan for the sake of acquiring a scientific frontier; this must depend (1) on the nature of the interests thus defended, (2) on the impossibility of otherwise defending them, (3) on the question how they came to be endangered. If they are interests of which the maintenance is essential to those ends as a means to which the state has its value, if the state which defends them has not itself been a joint-cause of their being endangered, and if they cannot be defended except at the cost of injury to some portion of mankind, then the state which defends them is clear of the guilt of that injury. But the guilt is removed from it only to be somewhere else, however wide its distribution may be. It may be doubted, however, whether the second question could ever be answered altogether in favour of a state which finds it necessary to protect its interests at the cost of inflicting an injury on mankind.
170. It will be said, perhaps, that these formal arguments in proof of the wrong-doing involved in war, and of the unjustifiability of the policy which nations constantly adopt in defence of their apparent interests, carry very little conviction; that a state is not an abstract complex of institutions for the maintenance of rights, but a nation, a people, possessing such institutions; that the nation has its passions which inevitably lead it to judge all questions of international right from its own point of view, and to consider its apparent national interests as justifying anything; that if it were otherwise, if the cosmopolitan point of view could be adopted by nations, patriotism would be at an end; that whether this be desirable or no, such an extinction of national passions is impossible; that while they continue, wars are as inevitable between nations as they would be between individuals, if individuals were living in what philosophers have imagined to be the state of nature, without recognition of a common superior; that nations in short are in the position of men judging their own causes, which it is admitted that no one can do impartially; and that this state of things cannot be altered without the establishment of a common constraining power, which would mean the extinction of the life of independent states,—a result as undesirable as it is unattainable. Projects of perpetual peace, to be logical, must be projects of all-embracing empire.
171. There is some cogency in language of this kind. It is true that when we speak of a state as a living agency, we mean, not an institution or complex of institutions, but a nation organised in a certain way; and that members of the nation in their corporate or associated action are animated by certain passions, arising out of their association, which, though not egoistic relatively to the individual subjects of them (for they are motives to self-sacrifice), may, in their influence on the dealings of one nation with another, have an effect analogous to that which egoistic passions, properly so called, have upon the dealings of individuals with each other. On the other hand, it must be remembered that the national passion, which in any good sense is simply the public spirit of the good citizen, may take, and every day is taking, directions which lead to no collision between one nation and another; (or, to say the same thing negatively, that it is utterly false to speak as if the desire for one's own nation to show more military strength than others were the only or the right form of patriotism); and that though a nation, with national feeling of its own, must everywhere underlie a state, properly so called, yet still, just so far as the perfect organisation of rights within each nation, which entitles it to be called a state, is attained, the occasions of conflict between nations disappear; and again, that by the same process, just so far as it is satisfactorily carried out, an organ of expression and action is established for each nation in dealing with other nations, which is not really liable to be influenced by the same egoistic passions in dealing with the government of another nation as embroil individuals with each other. The love of mankind, no doubt, needs to be particularised in order to have any power over life and action. Just as there can be no true friendship except towards this or that individual, so there can be no true public spirit which is not localised in some way. The man whose desire to serve his kind is not centred primarily in some home, radiating from it to a commune, a municipality, and a nation, presumably has no effectual desire to serve his kind at all. But there is no reason why this localised or nationalised philanthropy should take the form of a jealousy of other nations or a desire to fight them, personally or by proxy. Those in whom it is strongest are every day expressing it in good works which benefit their fellow-citizens without interfering with the men of other nations. Those who from time to time talk of the need of a great war to bring unselfish impulses into play, give us reason to suspect that they are too selfish themselves to recognise the unselfish activity that is going on all round them. Till all the methods have been exhausted by which nature can be brought into the service of man, till society is so organised that everyone's capacities have free scope for their development, there is no need to resort to war for a field in which patriotism may display itself.