XXVI. The Limits of State Duties

CHAPTER XXVI. THE LIMITS OF STATE-DUTIES. § 362. During those early stages in which the Family and the State were not differentiated, there naturally arose the theory of paternal government. The members of the group were" held together by common obedience to 4 their highest living ascendant, the father, grandfather, or great grandfather." Ignoring those still earlier social groups of which Sir Henry Maine takes no account, we may accept his generalization that among Aryan and Semitic peoples, the despotic power of the father over his children, surviving more or less as his children became heads of families, and as again their children did the same, gave a general cha racter to the control exercised over all menlbers of the group. The idea of government thus arising, inevitably entered into the idea of government which became estab lished as compound families grew into communities j and it survived when many of such small communities, not allied in blood or but remotely allied, became consolidated into larger societies.

The theoryof paternal governmentoriginatingin thisway is a theory which tacitly asserts the propriety of unlinlited government. The despotic control of the father extends to all acts -o£his children; and the patriarchal government growing out of it, naturally came to be exercised over tho entire lives of those who were subject. rl'he stage was one 216 JUSTICE. in wllich distinctions and limitatiolls had not yet arisen; and while the group retained something like its original constitution, having in the main a common origin and holding in partial if not entire community the inhabHed tract and its produce, the conception of government as unlimited in range was probably one best adapted to the requirements. But this ancient social idea, like ancient religious ideas, survives) or continually reappears, under conditions utterly unbke those to whieh it was appropriate. The notion of paternal governnlent is entertained in a vague sentiluental way, without any attempt being made definitely to conceive its meaning; and consequently without any perception of the inapplicability of the notion to developed societies.

For none of the traits of paternal government as it origin ally arose, exists now, oris possible. Observe the contrasts. Fatherhood habitually implies ownership of the means by which children and dependents are supported; and something like such ownership continued under the patri archal form of rule. But in developed nations not ouly is tbis trait absent, but the opposite trait is present. The governing agent does not now support those over whom it exercises authority, but those over whom it exercises authority support the governing agent. Under paternal rule, truly so called, the possessor of the power, being possessor of everything else, was benefactor to his children as well as controller of them; whereas a modern govern ment, along with a power which is in chief meaRure given by those who are supposed to stand in the place of children, cannot be in such sense a benefactor, but has to receive from the children the means which enable it to do anything for them. Again, in siulple and' compound fam;ly-groups there is an approach to identity of interests between rulers and ruled: the bonds of blood-relationship go far to insuro a regulative action conducive to the general welfare. But in advanced societies there enter into the political relations THE LIMITS OF STATE..DUTIES. 217 no such emotions as those arising from family feeling and kinship, ,vhich serve to check the self-seeking of the ruling agent, be it king,oligarchy, or such democratic· body as the United S~ates 8how us. Once more, the sup posed parallel fails in respect of knowledge and wisdom.

With the primitive paternal power, and the patriarchal power derived from it, there generally went wider expe rience and deeper insight than were possessed by the descendants who were ruled. But in developed societies no such contrast exists between the mental superiority of those supposed to stand in the position of father, and the mental inferiority of those supposed to stanel in the posi tion of children. Contrariwise, among those figuratively spoken of as children, there exist many who are at once better informed and intellectually stronger than the ruling head, single or multiple, as the case may be. And where, the head being multiple, the so-called children have to choose from among themselves those who shall constitute it, they habitually ignore the best-fitted: the result being tl1at rule is exercised not so much by the collective wisdom as by the collective folly-the paternal and filial relation is in another way reversed. .

Hence that theory of the fun ctions of the State which is based on this assumed parallelism is utterly false. The only justification for the analogy between parent and child and government and people is the childishness of the people who entertain the analogJ. § 363. A conception of State-dutiesw hich is connate with the last but gradually diverges from it, must next be .noticed. I refer to the conceptiongeneratedby experiences ot those governu1ental actions needful for carrying on wars, which, up to recent times, have been its chief actions. In social groups of types preceding the patriarchal, headship becomes established by frequent wars j and in the patriarchal group the head of the warriors is ordinarily 218 JUSTICE. head of the State. This id~ntity, continuing through sub .. sequent stages, determines the nature of government at large. That men may be good soldiers they must not only be subordinate, grade under grade, and must not only be drilled in warlike exercises, but must have their daily habits regulated in ways conducive to efficiency. More than this: the soldier-king, regarding the whole com...

munity as a body from which soldiers and supplies are to be drawn, extends his control over the entire lives of his subjects. And since nations in general have been, as many of them still are, predominantly militant, this idea of governmental power, with its concomitant idea of the duties of the State, has been almost universal. In the most militant of Greek States, Sparta, preparation for war was tIle business of life, and the whole of life was· regulated with a view to this preparation. 'l'hough in Athens no such strenuous efforts to achieve this end were made, yet there was a recognition of this end as the pI e dominant one. Plato's ideal republic was one in which, by education, citizens were to be rrloulded into fitness for social requirements, of which the chief was national defence; and this power of the incorporated community over its units was to go to the extent of regulating the procreation of them, both by selection of parents and by due adjustment of their ages. So, too, in Aristotle's Politic8, it is urged that education should be taken out of the charge of parents, and that the different classes of citizens, differently educated, should be respectively adapted to public needs: authority being also assigned to the legislator to regulate marriage and the begetting of children. 'l'hus the conception of governmental functions developed by militancy, and appro priate to a fighting body, becomes the conception of governmental functions at large.

Here, as before, we see that ideas, sentiments, and habits appropriate to early stages of development survive through out later stages, to which they are no longer appropriate j THE LIMITS OF STATE-DUTIES. 219 and pervert the prevailing beliefs and actions. For by many the conception of State-duties that was fit for Greek societies, is supposed to be fit for modern societies. Though the best social organization as conceived by Socrates and approved by Plato, was one in which the industrial clas~s were to be absolutely subject to the classes above them though, in l1is Politics, Aristotle, regarding the family as normally consisting of freemen and slaves, taught that in the best-regulated States no mechanic should be a citizen, and· that all tillers of the ground should be serfs; yet it is believed that we may with advantage adopt the accom panying theory of State-duties! One whose conceptions of right and wrong were shown in the belief that it is impos sible for a man who lives the life of a mechanic or hired servant to practise virtue, is supposed to be one to whose conceptions of right and wrong in social affairs we may wisely defer! It is thought that the ideas appropriate to a society organized throughout on relations of status, are adapted to a society organized throughout on relations of contract! .A. political ethics belonging to a system of compulsory co-operation applies also to a system of voluntary co-operation I § 364. There is indeed the excuse that to some extent among ourselves, and to a much larger extent among continental peoples, the militant life, potlntial when not .

actual, still forms so considerable, and in many cases so great, a part of· the social life as to render these tradi tional doctrines appropriate. Compromise between old and new, which has perpetually to be made in practice, has to be made also in theory; for this must, on the average, conform itself to practice. It is therefore out of the question that there can be generally entertained the belief that governmental action should be subject to certain imperative restraints. The doctrine that there is a limited sphere within which. only State·coutrol 220 JUSTICE. may rightly be exercised, is a doctrine natural to the peaceful and industrial type of society when fully developed; and is not natural either to the militant type or to types transitional between militancy and industrialism. Just relatjons between the community and its units cannot exist during times when the community and its units are jointly and severally committing injustices abroad. Men who hire themselves out to shoot other men to order, asking nothing about the equity of their cause, are not men by whom there can be established equitable social arrangements. While the nations of Europe are partitioning among themselves parts of the Earth inhabited by inferior peoples, with cynical indifference to the claims of these peoples, it is foolish to expect that in each of these nations the government can have so tender a regard for the olaims of individuals as to be deterred by them from this or that apparently politic n1easure. So long as the power to make conquests abroad is supposed to give rights to the lands taken, there must of course persist at home the doctrine that an Act of Parliament can do anything-that the aggregate will may rightly impose itself on individual wills without any limit.

It may indeed be contended with reason that under existing conditions belief in the unrestricted authority of the State is necessary. The tacit assumption that the con trolling agency which a cOlumunity appoints or accepts, is subject to no restraints, has the defence that without it there could not be ensured that combined action from time to time required for meeting emergencies. As in war lack of faith in a leader maybe a cause of defeat, so in war scepticism respecting governmental authority may produce fatal hesitations and dissensions. So long, therefore, as the religion of enmity so largely qualifies the religion of amity, the doctrine of unlimited State-authority must prevail. § 365. And now, having seen how the current conception of State-duties origi~ated, and how it has survived into THE LIMITS OF STATE-DUTIES. 221 modern conditions for which it is but partially adapted, we are the better prepared to entertain the true conception of State-duties. After recognizing the probability, if not the certainty, that a theory concerning the proper sphere of government which was fit for societies organized ou the principle of compulsory co-operation, must be unfit for societies organized on the principle of voluntary co-opera tion, we may proceed to ask: what is the theory appropriate to these.

Each· nation constitutes a variety of the human race. The welfare of humanity at large will be achieved by the prosperity and spread of the best varieties. After there has ended the predatory stage of progress-after there has come the stage in which the competition among societies is carried on without violence, there will, other things equal, be an increasing predominance of societies which produce the greatest nunlbers of the bes-tind-ividuals. Production and maintenance of the best individuals is achieved by conformity to the law that each shall receive the good and eyil resn1ts of his own nature and consequent conduct; and in the social state, the conduct of each bringing to him these results, must be restrained within the limits imposed by the presence of others similarly carrying on actions and experiencing results. Hence, other things equal, the greatest prosperity and multiplication of efficient indi viduals will occur where each is so constituted that he can fulfil the requirements of his own nature without inter fering with the fulfilment of such requirements by others, What, then, becomes the duty of the society in its corporate capacity, that is, of the State? Assuming t.hat it is no longel~ calledon to guard against external dangers} what does there remain which it is called on to do? If the desideratum,alike for the individuals, for the s.ociety, and for the race, is that the individuals shall be such as can fulfil their several lives· subject to the conditions named j then it is for the society in its corporate capacity to insist 222 JUSTICE.

that these cond.itions shall be contor-med. to. Whether, in the absence of war, a government has or has not anything more to do than this, it is clear it has to do this. And, by implication, it is clear that it is not permissible to do anything which hiuders the doing of this. Hence the questi~u of limits becomes the question whether, beyond maintaining justice, the State can do any thing else without transgressing justice. On consideration we shall find that it cannot. § 366. For if the State goes beyond fulfilment of its duty as above specified, it must do this in one or both of two ways which severally or jointly reverse its duty. Of further actions it undertakes, one clas~ comes under the definition of actions which restrain the freedom of some individuals more than is required by maintenance of the like freedom of other individuals; and such actions are themselves breaches of the law of equal freedom. If justice asserts the liberty of each limited only by thr:- like liberties of aU, then the imposing of any further liluit is unjust; no matter whether the power imposing it be one man or a million of men. As we have seen throughout this work, the general right formulated, and all the special rights deducible from it, do not exist by authority of the State; but the State exists as a' means of preserving them. Hence if, instead of preserving them, it trenches upon them, it commits wrongs instead of preventing wrongs. Though not in every society, yet in our society, the killing of all infants which do not reach the standard of goodness required by public authority, would probably be regarded as murder, even though committed by many individuals instead of one; and though not in early times, yet in our time, the tying of men to the lands they were born on, and the forbidding any other occupations than prescribed ones, would be considered as intolerable aggressions on their liberties. But if these larger inroads on their rights are THE LIMITS OF STATE-DUTIES. 223 'wrong, then also are smaller inroads. As we hold that a theft is a theft whether the amount stolen be a pound or a penny, so we must hold that an aggression is an aggression whether it be great or small.

In the other class of cases the wrong is general and indirect, instead of being special and direct. Money taken from the citizen, not to pay the cost,s of guarding from injury his person, property, and liberty, but to pay the costs of other actions to which he has given no assent, inflicts injury instead of preventing it. Names and customs veil so much the facts, that we do not com monly see in a tax a diminution of freedom j and yet it clearly is one. The money taken represents so mu.ch labour gone through, and the product of that labour being taken away, either leaves the individual to go without such benefit as was achieved by it or else to go through more labour. In feudal days, when the subject-classes had, under the name of coroees, to render services to their lords, specified in time or work, the partial slavery was manifest enough; and when the services were commuted for money, the relation remained the same in substance though changed in form.

So is it now'. Tax-payers are subject to a State-corvee, which is none the less decided because, inste~d of giving their special kinds of work, they give equivalent sums; and if the cor'ree in its original undisguised form was a depriva tion of freedom, so is it in its modern disguised form. "Thus much of your work shall be devoted, not to your own purposes, but to our purposes," say the authorities to the citizens; and to whatever extent this is carried, to that extent the citizens become slaves of the government. "But they are slaves for their own advantage," will be the reply-" and the things to be done with the money taken from them are things which will in one way or other conduce to their welfare." Yes, that is the theory-a theory not quite in harmony with the vast mass of nl1s chievous legislation filling the statute-books. But this 224 JUS'l'ICE. reply is not to the purpose. The question is a question of justice; and even supposing that the benefits to be obtained by these extra public expenditures were fairly distributed alllong all who furnish funds, which they are not, it would still r.emain true that they are at variance with the fundamental principle of an equitable soci~l order. A man's liberties are none the less aggressed upon because those who coerce him do so in the belief that he will be benefited. In thus imposing by force th8ir 'wills upon his will, they are breaking the law of equal freedom in his person; and what the motive may be matterB not.

Aggression which is flagitious when committed by one is not sanc~ified when committed by a host. Doubtless most persons will read "vith astonishment this denial of unrestricted State-power, and this tacit assertion that the State commits an offence when it exceeds the prescribed limits. In all places and times the beliefs which accompany the established institutions and habits, seem to those who hold them uncontrovertible. The fury of religious persecution has everywhere had behind it the conviction that dissent from the current creed implied deliberate wickedness or demoniacal possession. It was thought monstrous to question the authority of the Church in days when the Pope was supreme over kings; and at the present time, in parts of Africa, how monstrous it is thought to reject the local creed is shown by the remark concerning disbc\lieving Europeans-" What fools these white men are!" So has it been politically. As in Fiji where, until recently, a man stood unbound to be killed, hi mse1f declaring that "whatever the king says must bo doue," it was held impossible to doubt the unbounded power of the ruling man-as throughout Europe, while the doctrine of the divine right of kings was univerfally accepted, the assertion that the many ought not to obey the one was regarded by nearly all as the worst of erimes as, even but a century ago, a, Church-and-ICing mob were THE LIMITS ·Ol!' STATE-DUTIES. 225 ready to take the life of a preacher who publicly dissented from the established forms of government, political and (~cclesiastical; so is it in a measure even still. One who denies the unlimited authority of the State is sure to bo regarded by men at large as a fool or a. fanatic. Instead of that" divinity which doth hedge a king," we have now the divinity which doth hedge a parliament. The many headed government appointed by multitudes of ignorant people, which has replaced the single-headed government supposed to be appointed by heaven, clailus, and is accorded, the same unrestricted powers. The sacred right of the majority, who are mostly stupid and ill-informed, to coerce the minority,. often more intelligent and better-informed, is supposed to extend to all comlnands whatever which the majority may issue; and the rectitude of this arrangement is considered self-evident.

Hence, just as among those who uphold the "sacred duty of blood-reyenge," the injunction to forgive injuries is unlikely to meet with much acceptance; so it is not to be expected that among party politicians, eagerly competing with one another to gain votes by promising State-aids of countless kinds, any attention will be paid to a doctrine of State-duties which excludes the great Inass of their favourite schemes. But in face of all the contemptuous reprobation coming from them, it must still be asserted, as above, that their schemes are at variance with the fundamentalprincipl~ of a harmonious social life. § 367. Here, if kept strictly within its limits, this division of the Principles of Ethics should be brought to a close. ]laving seen what is the dictum of absolute ethics respecting the duties of the State, and having seen what qualifications are implied by that relative ethics. which takes cognizance of the requirements generated by international aggres siveness-having further seen that duri~g the transition between the militant and industrial· forms of socia.1 life) an 226 JUSTICE.

unduly exalted conception of State-authority (which is natural and in large nleasure necessary) fosters a multi plicity of unjust State-actions; there remains, from an ethical point of view, no more to be said. But it will be desirable here to devote SOlne space to the proofs that these actions which are unjust in theory are also impolitic in practice. The subject is a vast one, and cannot of course be funy dealt with in the space available. It will not be practicable to do more than present in outline the various divisions of the argum ent, with such few illustrations as are needful to indicate their bearings. We will first deal with the State considered generally as an instrumentality, in contrast with other instrumentalities. We will examine next the assumption tl1at it has a nature fitting it to remedy other evils than those entailed by aggression, external or internal. We will then consider the validity of the reasons for ascribing to it the duty and the power of achieving positive benefits. And we will end by inquiring whether the ultimate purpose-a higher development of ituman nature-is likely to be aided or hindered by its extended activities ..

NOTE. Respecting the conclusions set forth in the following three chapters, it seems proper to say that their validity must not be measured solely by the evidence given, and the arguments used, in support of them. For the full vindication of these conclusions, and for the multitudinous, facts which justify them, the reader is referred to various essays from time to time published, and now re-published in the library edition of my Essays. The titles of them are :_lC Over-Legislation;" "Representative Government THE LIMITS OF STATE-DUTIES. 227 -What is it Good for?" "State-Tamperings with Money and Banks;" "The Collective Wisdom;" "Political Fetishism;" and" Specialized Administration." To these may be a,dded sundry chapters forming the latter part of Social Statics, at present withdrawn from· circulation, but selected portions of which I hope presently to re-pllblish. 53 CHAPTER XXVII. THE LIMITS OF STATE-DUTIES CONTINUED.