§ 1. In the discussion of Justice the moral obligations of obedience to Law and observance of Contract have been included, and have, indeed, appeared to be the most definite part of the complex system of private duties commonly included under that term. At the same time, as we have seen, there are some laws, the violation of which does not interfere with the rights of others, and therefore has not the characteristics of an act of Injustice. While again, the duty of Fidelity to promises is also commonly conceived as independent of any injury that might be done to the promisee by breaking it: for (e.g.) men ordinarily judge that promises to the dead, though they are beyond the reach of injury, ought to be kept: indeed, some would regard them as even more sacred than promises made to the living. It seems therefore desirable to examine the propositions ‘that Law ought to be obeyed’ and ‘that promises ought to be kept,’ considered as independent principles.
To begin with the former: how are we to ascertain what the Law is which, as is commonly thought, we are morally bound to obey, as such? It is plain that we cannot here distinguish Legal from other rules by considering the sanctions actually attached to them, as we had occasion to do in a previous chapter.[231]For commands issued by rebels and usurpers are held to have as such no general bindingness, though they may be enforced by judicial penalties; it would be generally agreed that so far as it is our duty to obey such commands this is solely in order to avoid thegreater evils which might result to ourselves and others from our disobedience; and that the extent of such a duty must be determined by considerations of expediency. Nor, again, can we say that all commands even of a legitimate sovereign are to be regarded as Laws in the sense in which the term must be taken in the proposition that ‘laws ought to be obeyed’: since we all recognise that a rightful sovereign may command his subjects to do what is wrong, and that it is then their duty to disobey him. It seems therefore that for our present purpose we must define Laws to be Rules of Conduct laid down by a Rightful Authority, commanding within the limits of its authority.
There are therefore two questions to be settled, if the proposition that laws ought to be obeyed is to furnish practical guidance: (1) how we are to distinguish the Rightful Lawmaker—whether individual or body, and (2) how we are to ascertain the limits of this lawmaker’s authority. The questions should be distinguished; but, as we shall see, they can only be partially separated. Beginning with the first question, we may assume that the authority to make laws resides in some living man or men. No doubt in some societies, at some stages of their development, the whole or a part of the code of laws habitually observed, or at least recognised as binding, has been believed to be of divine or semi-divine institution; or perhaps from mere antiquity to possess a sanctity superior to that of any living authority, so as to be not legitimately alterable. But we hardly find this view in the Common Sense of civilised Europe, upon which we are now reflecting: at any rate in our societies there is not thought to be any portion of the definite prescriptions of positive law which, in virtue of its origin, is beyond the reach of alteration by any living authority.
Where then is this authority to be found?
In the answers commonly given to this question, the conflict between the Ideal and the Traditional or Customary, which has perplexed us in seeking the definition of Justice, meets us again in an even more complicated form. For not only do some say that obedience is always due to the traditionally legitimate authority in any country, while others maintain that an authority constituted in accordance withcertain abstract principles is essentially legitimate, and that a nation has a right to claim that such an authority shall be established, even at the risk of civil strife and bloodshed: but often, too, the authority actually established is not even traditionally legitimate. So that we have to distinguishthreeclaims to authority, each of which may come into conflict with either of the other two: (1) that of the Government held to be ideally or abstractly right, and such as ought to be established: (2) that of the Governmentde jure, according to the constitutional traditions in any given country: and (3) that of thede factoGovernment.
§ 2. Let us begin by considering the Ideal. Here I do not propose to consider all views as to the right constitution of supreme authority which speculative thinkers have put forward; but only such as have aprima facieclaim to express the Common Sense of mankind on the subject. Of these the most important, and the most widely urged and admitted, is the principle that the Sovereign in any community can only be rightly constituted by the Consent of the Subjects. This, as was noticed in the preceding chapter, is involved in the adoption of Freedom as the ultimate end of political order: if no one originally owes anything to another except non-interference, he clearly ought only to be placed in the relation of Subject to Sovereign by his own consent. And thus, in order to reconcile the original right of Freedom with the actual duty of Law-observance, some supposition of a social compact appears necessary; by means of which Obedience to Law becomes merely a special application of the duty of keeping compacts.
In what way, then, are the terms of this fundamental compact to be known? No one now maintains the old view that the transition from the ‘natural’ to the ‘political’ state actually took place by means of an “original contract,” which conferred indelible legitimacy on some particular form of social organisation. Shall we say, then, that a man by remaining a member of a community enters into a ‘tacit undertaking’ to obey the laws and other commands imposed by the authority generally recognised as lawful in that community? In this way however the Ideal lapses into the Customary: and the most unlimited despotism, if established and traditional, mightclaim to rest on free consent as well as any other form of government: so that the principle of abstract Freedom would lead to the justification of the most unqualified concrete tyranny and servitude; and thus our theory would end by riveting men’s chains under pretence of exalting their freedom. If to avoid this result, we suppose that certain ‘Natural Rights’ are inalienable—or tacitly reserved in the tacit compact—and that laws are not strictly legitimate which deprive a man of these, we are again met by the difficulty of deducing these inalienable rights from any clear and generally accepted principles. For instance, as we have seen, a widely accepted opinion is that all such rights may be summed up in the notion of Freedom; but we have also seen that this principle is ambiguous, and especially that the right of private property as commonly recognised cannot be clearly deduced from it; and if so it would certainly be most paradoxical to maintain that no government can legitimately claim obedience for any commands except such as carry out the principle of protecting from interference the Freedom of the individuals governed. It has been thought that we can avoid this difficulty by constituting the supreme organ of government so that any law laid down by it will always be a law to which every person called on to obey it will have consented personally or by his representatives: and that a government so constituted, in which—to adopt Rousseau’s phrase—every one “obeys himself alone,” will completely reconcile freedom and order. But how is this result to be attained? Rousseau held that it could be attained by pure direct democracy, each individual subordinating his private will to the “general will” of the sovereign people of which all are equally members. But this “general will” must be practically the will of the majority: and it is paradoxical to affirm that the freedom and natural rights of a dissentient minority are effectively protected by establishing the condition that the oppressors must exceed the oppressed in number. Again, if the principle be absolute it ought to apply to all human beings alike: and if to avoid this absurdity we exclude children, an arbitrary line has to be drawn: and the exclusion of women, which even those who regard the suffrage as a natural right are often disposed to maintain, seems altogether indefensible. And to suppose—as some havedone—that the ideal of “obeying oneself alone” can be even approximately realised by Representative Democracy, is even more patently absurd. For a Representative assembly is normally chosen only by a part of the nation, and each law is approved only by a part of the assembly: and it would be ridiculous to say that a man has assented to a law passed by a mere majority of an assembly against one member of which he has voted.
But, again, to lay down absolutely that the laws of any community ought to express the will of the majority of its members seems incompatible with the view so vigorously maintained by Socrates and his most famous disciples, that laws ought to be made by people who understand law-making. For though the majority of a representative assembly in a particular country at a particular time may be more fit to make laws for their country than any set of experts otherwise selected, it is certainly not self-evident that this will be universally the case. Yet surely the Socratic proposition (which is merely a special application of the principle noticed in the latter part of the preceding chapter, ‘that function should be allotted to the fittest’) has as much claim to be considered a primary intuition as the one that we have been discussing. Indeed, the secular controversy between Aristocracy and Democracy seems ultimately reducible to a conflict between those two principles: a conflict of which it is impossible to find a solution, so long as the argument remains in thea prioriregion.
§ 3. However, to discuss this exhaustively would carry us too far beyond the range of Ethics proper: but we may perhaps conclude that it is impossible to elicit from Common Sense any clear and certain intuitions as to the principles on which an ideal constitution should be constructed. And there is an equal want of agreement as to the intrinsic lawfulness of introducing such a constitution in violation of the traditional and established order in any community. For some think that a nation has a natural right to a government approximately conformed to the ideal, and that this right may be maintained by force in the last resort. Others, however, hold that, though the ideal polity may rightly be put forward and commended, and every means used to promote its realisation which the established government in any country permits,—still, rebellioncan never be justifiable for this purpose alone. While others,—perhaps the majority,—would decide the question on grounds of expediency, balancing the advantages of improvement against the evils of disorder.
But further, as we saw, it is not so easy to say what the established government is. For sometimes an authority declared by law to be illegitimate issues ordinances and controls the administration of justice. The question then arises, how far obedience is due to such an authority. All are agreed that usurpation ought to be resisted; but as to the right behaviour towards an established government which has sprung from a successful usurpation, there is a great difference of opinion. Some think that it should be regarded as legitimate, as soon as it is firmly established: others that it ought to be obeyed at once, but under protest, with the purpose of renewing the conflict on a favourable opportunity: others think that this latter is the right attitude at first, but that a usurping government, when firmly established, loses its illegitimacy gradually, and that it becomes, after a while, as criminal to rebel against it as it was originally to establish it. And this last seems, on the whole, the view of Common Sense; but the point at which the metamorphosis is thought to take place can hardly be determined otherwise than by considerations of expediency.
But again, it is only in the case of an absolute government, where customary obedience is unconditionally due to one or more persons, that the fundamental difficulties of ascertaining the legitimacy of authority are of the simple kind just discussed. In a constitutionally governed state numerous other moral disagreements arise. For, in such a state, while it is of course held that the sovereign is morally bound to conform to the constitution,[232]it is still disputed whether thesubjects’ obligation to obedience is properly conceived as conditional upon this conformity: and whether they have the moral right (1) to refuse obedience to an unconstitutional command; and (2) even to inflict on the sovereign the penalty of rebellion for violating the constitution. Again, in determining what the constitutional obligations really are we find much perplexity and disagreement, not merely as to the exact ascertainment of the relevant historical facts but as to the principles on which these facts ought to be treated. For the various limitations of sovereign authority comprised in the constitution have often been originally concessions extorted by fear from a sovereign previously absolute; and it is doubted how far such concessions are morally binding on the sovereign from whom they were wrested, and still more how far they are binding on succeeding sovereigns. Or,vice versâ, a people may have allowed liberties once exercised to fall into disuse; and it is doubted whether it retains the right of reclaiming them. And, generally, when a constitutional rule has to be elicited from a comparison of precedents, it is open to dispute whether a particular act of either party should be regarded as a constitutive precedent or as an illegitimate encroachment. And hence we find that, in constitutional countries, men’s view of what their constitution traditionally is has often been greatly influenced by their view of what it ideally ought to be: in fact, the two questions have rarely been kept quite distinct.
§ 4. But even in cases where we can ascertain clearly to what authority obedience is properly due, further difficulties are liable to arise when we attempt to define the limits of such obedience. For in modern society, as we have seen, all admit that any authority ought to be disobeyed which commands immoral acts; but this is one of those tautological propositions, so common in popular morality, which convey no real information; the question is, what acts there are which do not cease to be immoral when they have been commanded by a rightful authority. There seems to be no clear principle upon which these can be determined. It has sometimes been said that theLaw cannot override definite duties; but the obligation of fidelity to contract is peculiarly definite, and yet we do not consider it right to fulfil a contract of which a law, passed subsequently to the making of the contract, has forbidden the execution. And, in fact, we do not find any practical agreement on this question, among persons who would not consciously accept the utilitarian method of deciding it by a balance of conflicting expediences. For some would say that the duties of the domestic relations must yield to the duty of law-observance, and that (e.g.) a son ought not to aid a parent actively or passively in escaping the punishment of crime: while others would consider this rule too inhuman to be laid down, and others would draw the line between assistance and connivance. And similarly, when a rightly constituted government commands acts unjust and oppressive to others; Common Sense recoils from saying either that all such commands ought to be obeyed or that all ought to be disobeyed; but—apart from utilitarian considerations—I can find no clear accepted principle for distinguishing those unjust commands of a legitimate government which ought to be obeyed from those which ought not to be obeyed. Again, some jurists hold that we are not strictly bound to obey laws, when they command what is not otherwise a duty, or forbid what is not otherwise a sin; on the ground that in the case of duties prescribed only by positive laws, the alternatives of obeying or submitting to the penalty are morally open to us.[233]Others, however, think this principle too lax; and certainly if a widespread preference of penalty to obedience were shown in the case of any particular law, the legislation in question would be thought to have failed. Nor, on the other hand, does there seem to be any agreement as to whether one is bound to submit to unjust penalties.
Since, then, on all these points there is found to be so much difference of opinion, it seems idle to maintain that there is any clear and precise axiom or first principle of Order, intuitively seen to be true by the common reason and conscience of mankind. There is, no doubt, a vague general habit of obedience to laws as such (even if bad laws), which may fairly claim the universalconsensusof civilised society: but when we try to state any explicit principle corresponding to this general habit, theconsensusseems to abandon us, and we are inevitably drawn into controversies which seem to admit of no solution except that offered by the utilitarian method.[234]
§ 5. We have next to treat of Good Faith, or Fidelity to Promises; which it is natural to consider in this place, because, as has been seen, the Duty of Law-observance has by some thinkers been based upon a prior duty of fulfilling a contract. The Social Contract however, as above examined, seems at best merely a convenient fiction, a logical artifice, by which the mutual jural relations of the members of a civilised community may be neatly expressed: and in stating the ethical principles of Common Sense, such a fiction would seem to be out of place. It must, however, be allowed that there has frequently been a close historical connection between the Duty of Law-observance and the duty of Good Faith. In the first place, a considerable amount of Constitutional Law at least, in certain ages and countries, has been established or confirmed by compacts expressly made between different sections of the community; who agree that for the future government shall be carried on according to certain rules. The duty of observing these rules thus presents itself as a Duty of Fidelity to compact. Yet more is this the case, when the question is one of imposing not a law, but a law-giver; whose authority is strengthened by the exaction of an oath of allegiance from his subjects generally or a representative portion of them. Still, even in such cases, it can only be by a palpable fiction that the mass of the citizens can be regarded as bound by an engagement which only a few of them have actually taken.
We may begin our examination of the duty of Keeping Promises by noticing that some moralists have classified or even identified it with Veracity. From one point of view there certainly seems to be an analogy between the two; as we fulfil the obligations of Veracity and Good Faith alike by effecting acorrespondence between words and facts—in the one case by making fact correspond with statement, and in the other by making statement correspond with fact. But the analogy is obviously superficial and imperfect; for we are not bound to make our actions correspond with our assertions generally, but only with our promises. If I merely assert my intention of abstaining from alcohol for a year, and then after a week take some, I am (at worst) ridiculed as inconsistent: but if I have pledged myself to abstain, I am blamed as untrustworthy. Thus the essential element of the Duty of Good Faith seems to be not conformity to my own statement, but to expectations that I have intentionally raised in others.
On this view, however, the question arises whether, when a promise has been understood in a sense not intended by the promiser, he is bound to satisfy expectations which he did not voluntarily create. It is, I think, clear to Common Sense that he is so bound in some cases, if the expectation was natural and such as most men would form under the circumstances: but this would seem to be one of the more or less indefinite duties of Justice, and not properly of Good Faith, as there has not been, strictly speaking, any promise at all. The normal effect of language is to convey the speaker’s meaning to the person addressed (here the promiser’s to the promisee), and we always suppose this to have taken place when we speak of a promise. If through any accident this normal effect is missed, we may say that there is no promise, or not a perfect promise.
The moral obligation, then, of a promise is perfectly constituted when it is understood by both parties in the same sense. And by the term ‘promise’ we include not words only, but all signs and even tacit understandings not expressly signified in any way, if such clearly form a part of the engagement. The promiser is bound to perform what both he and the promisee understood to be undertaken.
§ 6. Is, then, this obligation intuitively seen to be independent and certain?
It is often said to be so: and perhaps we may say that it seems so to unreflective common sense. But reflection seems at least to disclose a considerable number of qualifications of the principle; some clear and precise, while others are more or less indefinite.
In the first place, thoughtful persons would commonly admit that the obligation of a promise is relative to the promisee, and may be annulled by him. And therefore if the promisee be dead, or otherwise inaccessible and incapable of granting release, there is constituted an exceptional case, of which the solution presents some difficulty.[235]
Secondly, a promise to do an immoral act is held not to be binding, because the prior obligation not to do the act is paramount; just as in law a contract to do what a man is not legally free to do, is invalid: otherwise one could evade any moral obligation by promising not to fulfil it, which is clearly absurd.[236]And the same principle is of course applicable to immoral omissions or forbearances to act: here however, a certain difficulty arises from the necessity of distinguishing between different kinds or degrees of obligatoriness in duties; since it is clear that a promise may sometimes make it obligatory to abstain from doing what it would otherwise have been a duty to do. Thus it becomes my duty not to give money to a meritorious hospital if I have promised all I can spare to an undeserving friend; though apart from the promise it might have been my duty to prefer the hospital to the friend. We have, however, already seen the difficulty of defining the limits of strict duty in many cases: thus (e.g.) it might be doubted how far the promise of aid to a friend ought to override the duty of giving one’s children a good education. The extent, therefore, to which the obligation of a promise overrides prior obligations becomes practically somewhat obscure.
§ 7. Further qualifications of the duty of fidelity to promises, the consideration of which is involved in more difficulty and dispute, are suggested when we examine more closely the conditions under which promises are made, and the consequences of executing them. In the first place, it is much disputed how far promises obtained by ‘fraud or force’ are binding. As regards fraud, if the promise was understoodto be conditional on the truth of a statement which is found to be false, it is of course not binding, according to the principle I originally laid down. But a promise may be made in consequence of such a fraudulent statement, and yet made quite unconditionally. Even so, if it were clearly understood that it would not have been made but for the false statement,[237]probably most persons would regard it as not binding. But the false statement may be only one consideration among others, and it may be of any degree of weight; and it seems doubtful whether we should feel justified in breaking a promise, because a single fraudulent statement had been a part of the inducement to make it: still more if there has been no explicit assertion, but only a suggestion of what is false: or no falsehood at all, stated or suggested, but only a concealment of material circumstances. We may observe that certain kinds of concealment are treated as legitimate by our law: in most contracts of sale, for example, the law adopts the principle of ‘caveat emptor,’ and does not refuse to enforce the contract because the seller did not disclose defects in the article sold, unless by some words or acts he produced the belief that it was free from such defects. Still, this does not settle the moral question how far a promise is binding if any material concealment is shown to have been used to obtain it. We have also to consider the case in which an erroneous impression has not been wilfully produced, but was either shared by the promisee or produced in some way unintentionally. Perhaps in this last case most would say that the bindingness of the promise is not affected, unless it was expressly conditional. But on all these points Common Sense seems doubtful: and somewhat similar difficulties present themselves when we endeavour to define the obligation of promises partly obtained by some degree of illegal violence and intimidation.
§ 8. But, secondly, even if a promise has been made quite freely and fairly, circumstances may alter so much before the time comes to fulfil it, that the effects of keeping it may be quite other than those which were foreseen when it was made. In such a case probably all would agree that the promisee ought to release the promiser. But if he declines to do this,it seems difficult to decide how far the latter is bound. Some would say that he is in all cases: while others would consider that a considerable alteration of circumstances removed the obligation—perhaps adding that all engagements must be understood to be taken subject to a general understanding that they are only binding if material circumstances remain substantially the same. But such a principle very much impairs the theoretical definiteness of the duty.
This difficulty assumes a new aspect when we consider the case already noticed, of promises made to those who are now dead or temporarily out of the reach of communications. For then there is no means of obtaining release from the promise, while at the same time its performance may be really opposed to the wishes—or what would have been the wishes—of both parties. The difficulty is sometimes concealed by saying that it is our duty to carry out the ‘intention’ of the promise. For as so used the word Intention is, in common parlance, ambiguous: it may either mean the signification which the promisee attached to the terms employed, as distinct from any other signification which the common usage of words might admit: or it may include ulterior consequences of the performance of the promise, which he had in view in exacting it. Now we do not commonly think that the promiser is concerned with the latter. He certainly has not pledged himself to aim generally at the end which the promisee has in view, but only so far as some particular means are concerned: and if he considers these means not conducive to the end, he is not thereby absolved from his promise, under ordinary circumstances. But in the case supposed, when circumstances have materially changed, and the promise does not admit of revision, probably most persons would say that we ought to take into consideration the ulterior wishes of the promisee, and carry out what we sincerely thinkwouldhave been his intention. But the obligation thus becomes very vague: since it is difficult to tell from a man’s wishes under one set of circumstances what he would have desired under circumstances varying from these in a complex manner: and practically this view of the obligation of a promise generally leads to great divergence of opinion. Hence it is not surprising that some hold that even in such a case the obligation ought to be interpreted strictly: whileothers go to the other extreme, and maintain that it ceases altogether.
But again, it was said that a promise cannot abrogate a prior obligation; and, as a particular application of this rule, it would be generally agreed that no promise can make it right to inflict harm on any one. On further consideration, however, it appears doubtful how far the persons between whom the promise passed are included in the scope of this restriction. For, first, it does not seem to be commonly held that a man is as strictly bound not to injure himself as he is to avoid harming others; and so it is scarcely thought that a promise is not binding because it was a foolish one, and will entail an amount of pain or burden on the promiser out of proportion to the good done to the promisee. Still, if we take an extreme case, where the sacrifice is very disproportionate to the gain, many conscientious persons would think that the promise ought rather to be broken than kept. And, secondly, a different question arises when we consider the possibility of injuring the promisee by fulfilling the promise. For when it is said to be wrong to do harm to any one, we do not commonly mean only what he thinks harm, but what really is so, though he may think it a benefit; for it seems clearly a crime for me to give any one what I know to be poison, even though he may be stubbornly convinced that it is wholesome food. But now suppose that I have promisedAto do something, which, before I fulfil the promise, I see reason to regard as likely to injure him. The circumstances may be precisely the same, and only my view of them have changed. IfAtakes a different view and calls on me to fulfil the promise, is it right to obey him? Surely no one would say this in an extreme case, such as that of the poison. But if the rule does not hold for an extreme case, where can we draw the line? at what point ought I to give up my judgment toA, unless my own conviction is weakened? Common Sense seems to give no clear answer.
§ 9. I have laid down that a promise is binding in so far as it is understood on both sides similarly: and such an understanding is ordinarily attained with sufficient clearness, as far as the apprehension of express words or signs is concerned. Still, even here obscurity and misapprehensionsometimes occur; and in the case of the tacit understandings with which promises are often complicated, a lack of definite agreement is not improbable. It becomes, therefore, of practical importance to decide the question previously raised: What duty rests on the promiser of satisfying expectations which he did not intend to create? I called this a duty not so much of Good Faith as of Justice, which prescribes the fulfilment of normal expectations. How then shall we determine what these are? The method by which we commonly ascertain them seems to be the following. We form the conception of an average or normal man, and consider what expectations he would form under the circumstances, inferring this from the beliefs and expectations which men generally entertain under similar circumstances. We refer, therefore, to the customary use of language, and customary tacit understandings current among persons in the particular relations in which promiser and promisee stand. Such customary interpretations and understandings are of course not obligatory upon persons entering into an engagement: but they constitute a standard which we think we may presume to be known to all men, and to be accepted by them, except in so for as it is explicitly rejected. If one of the parties to an engagement has deviated from this common standard without giving express notice, we think it right that he should suffer any loss that may result from the misunderstanding. This criterion then is generally applicable: but if custom is ambiguous or shifting it cannot be applied; and then the just claims of the parties become a problem, the solution of which is very difficult, if not strictly indeterminate.
So far we have supposed that the promiser can choose his own words, and that if the promisee finds them ambiguous he can get them modified, or (what comes to the same thing) explained, by the promiser. But we have now to observe that in the case of promises made to the community, as a condition of obtaining some office or emolument, a certain unalterable form of words has to be used if the promise is made at all. Here the difficulties of moral interpretation are much increased. It may be said, indeed, that the promise ought to be interpreted in the sense in which its terms are understood by the community: and, no doubt, if their usage is quiteuniform and unambiguous, this rule of interpretation is sufficiently obvious and simple. But since words are often used in different ways by different members of the same society, and especially with different degrees of strictness and laxity, it often happens that a promise to the community cannot strictly be said to be understood in any one sense: the question therefore arises, whether the promiser is bound to keep it in the sense in which it will be most commonly interpreted, or whether he may select any of its possible meanings. And if the formula is one of some antiquity, it is further questioned, whether it ought to be interpreted in the sense which its words would now generally bear, or in that which they bore when it was drawn up; or, if they were then ambiguous, in the sense which appears to have been attached to them by the government that imposed the promise. On all these points it is difficult to elicit any clear view from Common Sense. And the difficulty is increased by the fact that there are usually strong inducements to make these formal engagements, which cause even tolerably conscientious persons to take them in a strained and unnatural sense. When this has been done continually by many persons, a new general understanding grows up as to the meaning of the engagements: sometimes they come to be regarded as ‘mere forms,’ or, if they do not reach this point of degradation, they are at least understood in a sense differing indefinitely from their original one. The question then arises, how far this process of gradual illegitimate relaxation or perversion can modify the moral obligation of the promise for a thoroughly conscientious person. It seems clear that when the process is complete, we are right in adopting the new understanding as far as Good Faith is concerned, even if it palpably conflicts with the natural meaning of language; although it is always desirable in such cases that the form of the promise should be changed to correspond with the changed substance. But when, as is ordinarily the case, the process is incomplete, since a portion of the community understands the engagement in the original strict sense, the obligation becomes difficult to determine, and the judgments of conscientious persons respecting it become divergent and perplexed.
To sum up the results of the discussion: it appears that aclearconsensuscan only be claimed for the principle that a promise, express or tacit, is binding, if a number of conditions are fulfilled: viz. if the promiser has a clear belief as to the sense in which it was understood by the promisee, and if the latter is still in a position to grant release from it, but unwilling to do so, if it was not obtained by force or fraud, if it does not conflict with definite prior obligations, if we do not believe that its fulfilment will be harmful to the promisee, or will inflict a disproportionate sacrifice on the promiser, and if circumstances have not materially changed since it was made. If any of these conditions fails, theconsensusseems to become evanescent, and the common moral perceptions of thoughtful persons fall into obscurity and disagreement.
§ 1. It may easily seem that when we have discussed Benevolence, Justice, and the observance of Law and Contract, we have included in our view the whole sphere of social duty, and that whatever other maxims we find accepted by Common Sense must be subordinate to the principles which we have been trying to define.
For whatever we owe definitely to our fellow-men, besides the observance of special contracts, and of positive laws, seems—at least by a slight extension of common usage—to be naturally included under Justice: while the more indefinite obligations which we recognise seem to correspond to the goodwill which we think ought to exist among all members of the human family, together with the stronger affections appropriate to special relations and circumstances. And hence it may be thought that the best way of treating the subject would have been to divide Duty generally into Social and Self-regarding, and again to subdivide the former branch into the heads which I have discussed one by one; afterwards adding such minor details of duty as have obtained special names and distinct recognition. And this is perhaps the proper place to explain why I did not adopt this course. The division of duties into Social and Self-regarding, though obvious, and acceptable enough as a roughprima facieclassification, does not on closer examination seem exactly appropriate to the Intuitional Method. For these titles naturally suggest that the happiness or well-being, of the agent or of others, is always the end and final determinant of right action: whereas the Intuitional doctrine is, that at least certain kinds ofconduct are prescribed absolutely, without reference to their ulterior consequences. And if a more general meaning be given to the terms, and by Social duties we understand those which consist in the production of certain effects upon others, while in the Self-regarding we aim at producing certain effects upon ourselves, the division is still an unsuitable one. For these consequences are not clearly recognised in the enunciation of common rules of morality: and in many cases we produce marked effects both on ourselves and on others, and it is not easy to say which (in the view of Common Sense) are most important: and again, this principle of division would sometimes make it necessary to cut in two the class of duties prescribed under some common notion; as the same rule may govern both our social and our solitary conduct. Take, for example, the acts morally prescribed under the head of Courage. It seems clear that the prominence given to this Virtue in historic systems of morality has been due to the great social importance that must always attach to it, so long as communities of men are continually called upon to fight for their existence and well-being: but still the quality of bravery is the same essentially, whether it be exhibited for selfish or social ends.
It is no doubt true that when we examine with a view to definition the kinds of conduct commended or prescribed in any list of Virtues commonly recognised, we find, to a great extent, that the maxims we obtain are clearly not absolute and independent: that the quality denoted by our term is admittedly only praiseworthy in so far as it promotes individual or general welfare, and becomes blameworthy—though remaining in other respects the same—when it operates adversely to these ends. We have already noticed this result in one or two instances, and it will be illustrated at length in the following chapters. But though this is the case to a great extent, it is, for our present purpose, of special importance to note the—real or apparent—exceptions to the rule; because they are specially characteristic of the method that we call Intuitionism.
One of the most important of these exceptions is Veracity: and the affinity in certain respects of this duty—in spite of fundamental differences—to the duty of Good Faith orFidelity to Promises renders it convenient to examine the two in immediate succession. Under either head a certain correspondence between words and facts is prescribed: and hence the questions that arise when we try to make the maxims precise are somewhat similar in both cases. For example, just as the duty of Good Faith did not lie in conforming our acts to theadmissiblemeaning of certain words,[238]but to the meaning which we knew to be put on them by the promisee; so the duty of Truthspeaking is not to utter words whichmight, according to common usage, produce in other minds beliefs corresponding to our own, but words which we believe will have this effect on the persons whom we address. And this is usually a very simple matter, as the natural effect of language is to convey our beliefs to other men, and we commonly know quite well whether we are doing this or not. A certain difficulty arises, as in the case of promises, from the use of set forms imposed either by law or by custom; to which most of the discussion of the similar difficulty in the preceding chapter applies with obvious modifications. In the case of formulæ imposed by law—such (e.g.) as declarations of religious belief—it is doubtful whether we may understand the terms in any sense which they commonly bear, or are to take them in the sense intended by the Legislature that imposed them; and again, a difficulty is created by the gradual degradation or perversion of their meaning, which results from the strong inducements offered for their general acceptance; for thus they are continually strained and stretched until a new general understanding seems gradually to grow up as to the meaning of certain phrases; and it is continually disputed whether we may veraciously use the phrases in this new signification. A similar process continually alters the meaning of conventional expressions current in polite society. When a man declares that he ‘has great pleasure in accepting’ a vexatious invitation, or is ‘the obedient servant’ of one whom he regards as an inferior, he uses phrases which were probably once deceptive. If they are so no longer, Common Sense condemns as over-scrupulous the refusal to use them where it is customary to do so. But CommonSense seems doubtful and perplexed where the process of degradation is incomplete, and there are still persons who may be deceived: as in the use of the reply that one is ‘not at home’ to an inconvenient visitor from the country.
However, apart from the use of conventional phrases, the rule ‘to speak the truth’ is not generally difficult of application in conduct. And many moralists have regarded this, from its simplicity and definiteness, as a quite unexceptionable instance of an ethical axiom. I think, however, that patient reflection will show that this view is not really confirmed by the Common Sense of mankind.
§ 2. In the first place, it does not seem clearly agreed whether Veracity is an absolute and independent duty, or a special application of some higher principle. We find (e.g.) that Kant regards it as a duty owed to oneself to speak the truth, because ‘a lie is an abandonment or, as it were, annihilation of the dignity of man.’ And this seems to be the view in which lying is prohibited by the code of honour, except that it is not thought (by men of honour as such) that the dignity of man is impaired byanylying: but only that lying for selfish ends, especially under the influence of fear, is mean and base. In fact there seems to be circumstances under which the code of honour prescribes lying. Here, however, it may be said to be plainly divergent from the morality of Common Sense. Still, the latter does not seem to decide clearly whether truth-speaking is absolutely a duty, needing no further justification: or whether it is merely a general right of each man to have truth spoken to him by his fellows, which right however may be forfeited or suspended under certain circumstances. Just as each man is thought to have a natural right to personal security generally, but not if he is himself attempting to injure others in life and property: so if we may even kill in defence of ourselves and others, it seems strange if we may not lie, if lying will defend us better against a palpable invasion of our rights: and Common Sense does not seem to prohibit this decisively. And again, just as the orderly and systematic slaughter which we call war is thought perfectly right under certain circumstances, though painful and revolting: so in the word-contests of the law-courts, the lawyer is commonlyheld to be justified in untruthfulness within strict rules and limits: for an advocate is thought to be over-scrupulous who refuses to say what he knows to be false, if he is instructed to say it.[239]Again, where deception is designed to benefit the person deceived, Common Sense seems to concede that it may sometimes be right: for example, most persons would not hesitate to speak falsely to an invalid, if this seemed the only way of concealing facts that might produce a dangerous shock: nor do I perceive that any one shrinks from telling fictions to children, on matters upon which it is thought well that they should not know the truth. But if the lawfulness of benevolent deception in any case be admitted, I do not see how we can decide when and how far it is admissible, except by considerations of expediency; that is, by weighing the gain of any particular deception against the imperilment of mutual confidence involved in all violation of truth.
The much argued question of religious deception (‘pious fraud’) naturally suggests itself here. It seems clear, however, that Common Sense now pronounces against the broad rule, that falsehoods may rightly be told in the interests of religion. But there is a subtler form in which the same principle is still maintained by moral persons. It is sometimes said that the most important truths of religion cannot be conveyed into the minds of ordinary men, except by being enclosed, as it were, in a shell of fiction; so that by relating such fictions as if they were facts, we are really performing an act of substantial veracity.[240]Reflecting upon this argument, we see that it is not after all so clear wherein Veracity consists. For from the beliefs immediately communicated by any set of affirmations inferences are naturally drawn, and we may clearly foresee that they will be drawn. And though commonly we intend that both the beliefs immediately communicated and the inferences drawn from them should be true, and a person who always aims at this is praised as candid and sincere: still we find relaxation of the rule prescribing this intention claimed in two different ways by at least respectable sections of opinion. For first, as was just now observed, it is sometimes held that if a conclusion is true and important, and cannot be satisfactorily communicated otherwise, we may lead the mind of the hearer to it by means of fictitious premises. But the exact reverse of this is perhaps a commoner view: viz. that it is only an absolute duty to make our actual affirmations true: for it is said that though the ideal condition of human converse involves perfect sincerity and candour, and we ought to rejoice in exhibiting these virtues where we can, still in our actual world concealment is frequently necessary to the well-being of society, and may be legitimately effected by any means short of actual falsehood. Thus it is not uncommonly said that in defence of a secret we may not indeedlie,[241]i.e.produce directly beliefs contrary to fact; but we may “turn a question aside,”i.e.produce indirectly, by natural inference from our answer, a negatively false belief; or “throw the inquirer on a wrong scent,”i.e.produce similarly a positively false belief. These two methods of concealment are known respectively assuppressio veriandsuggestio falsi, and many think them legitimate under certain circumstances: while others say that if deception is to be practised at all, it is mere formalism to object to any one mode of effecting it more than another.
On the whole, then, reflection seems to show that the rule of Veracity, as commonly accepted, cannot be elevated into a definite moral axiom: for there is no real agreement as to how far we are bound to impart true beliefs to others: and while it is contrary to Common Sense to exact absolute candour under all circumstances, we yet find no self-evident secondary principle, clearly defining when it is not to be exacted.
§ 3. There is, however, one method of exhibitinga priorithe absolute duty of Truth, which we must not overlook; as, if it be valid, it would seem that the exceptions and qualifications above mentioned have been only admitted by Common Sense from inadvertence and shallowness of thought.
It is said that if it were once generally understood that lies were justifiable under certain circumstances, it would immediately become quite useless to tell the lies, because no one would believe them; and that the moralist cannot lay down a rule which, if generally accepted, would be suicidal. To this there seem to be three answers. In the first place it is not necessarily an evil that men’s confidence in each other’s assertions should,under certain peculiar circumstances, be impaired or destroyed: it may even be the very result which we should most desire to produce:e.g.it is obviously a most effective protection for legitimate secrets that it should be universally understood and expected that those who ask questions which they have no right to ask will have lies told them: nor, again, should we be restrained from pronouncing it lawful to meet deceit with deceit, merely by the fear of impairing the security which rogues now derive from the veracity of honest men. No doubt the ultimate result of general unveracity under the circumstances would be a state of things in which such falsehoods would no longer be told: but unless this ultimate result is undesirable, the prospect of it does not constitute a reason why the falsehoods should not be told so long as they are useful. But, secondly, since the beliefs of men in general are not formed purely on rational grounds, experience shows that unveracity may long remain partially effective under circumstances where it is generally understood to be legitimate. We see this in the case of the law-courts. For though jurymen are perfectly aware that it is considered the duty of an advocate to state as plausibly as possible whatever he has been instructed to say on behalf of any criminal he may defend, still a skilful pleader may often produce an impression that he sincerely believes his client to be innocent: and it remains a question of casuistry how far this kind of hypocrisy is justifiable. But, finally, it cannot be assumed as certain that it is never right to act upon a maxim of which the universal application would be an undoubted evil. This assumption may seem to be involved in what was previously admitted as an ethical axiom, that what is right for me must be right for ‘all persons under similar conditions.’[242]But reflection will show that there is a special case within the range of the axiom in which itsapplication is necessarily self-limiting, and excludes the practical universality which the axiom appears to suggest:i.e.where the agent’s conditions include (1) the knowledge that his maxim is not universally accepted, and (2) a reasoned conviction that his act will not tend to make it so, to any important extent. For in this case the axiom will practically only mean that it will be right for all persons to do as the agent does, if they are sincerely convinced that the act will not be widely imitated; and this conviction must vanish if itiswidely imitated. It can hardly be said that these conditions are impossible: and if they are possible, the axiom that we are discussing can only serve, in its present application, to direct our attention to an important danger of unveracity, which constitutes a strong—but not formally conclusive—utilitarian ground for speaking the truth.[243]