Front matter (continued 2)

21. By 'practical reason' we mean a consciousness of a possibility of perfection to be realised in and by the subject of the consciousness. By 'will' we mean the effort of a self-conscious subject to satisfy itself. In God, so far as we can ascribe reason and will to Him, we must suppose them to be absolutely united. In Him there can be no distinction between possibility and realisation, between the idea of perfection and the activity determined by it. But in men the self-realising principle, which is the manifestation of God in the world of becoming, in the form which it takes as will at best only tends to reconciliation with itself in the form which it takes as reason. Self-satisfaction, the pursuit of which is will, is sought elsewhere than in the realisation of that consciousness of possible perfection, which is reason. In this sense the object of will does not coincide with the object of reason. On the other hand, just because it is self-satisfaction that is sought in all willing, and because by a self-conscious and self-realising subject it is only in the attainment of its own perfection that such satisfaction can be found, the object of will is intrinsically or potentially, and tends to become actually, the same as that of reason. It is this that we express by saying that man is subject to a law of his being which prevents him from finding satisfaction in the objects in which under the pressure of his desires it is his natural impulse to seek it. This 'natural impulse' (not strictly 'natural') is itself the result of the operation of the self-realising principle upon what would otherwise be an animal system, and is modified, no doubt, with endless complexity in the case of any individual by the result of such operation through the ages of human history. But though the natural impulses of the will are thus the work of the self-realising principle in us, it is not in their gratification that this principle can find the satisfaction which is only to be found in the consciousness of becoming perfect, of realising what it has it in itself to be. In order to any approach to this satisfaction of itself the self-realising principle must carry its work farther. It must overcome the 'natural impulses,' not in the sense of either extinguishing them or denying them an object, but in the sense of fusing them with those higher interests, which have human perfection in some of its forms for their object. Some approach to this fusion we may notice in all good men; not merely in those in whom all natural passions, love, anger, pride, ambition, are enlisted in the service of some great public cause, but in those with whom such passions are all governed by some such commonplace idea as that of educating a family.

22. So far as this state is reached, the man may be said to be reconciled to 'the law of his being' which (as was said above) prevents him from finding satisfaction in the objects in which he ordinarily seeks it, or anywhere but in the realisation in himself of an idea of perfection. Since the law is, in fact, the action of that self-realising subject which is his self, and which exists in God as eternally self-realised, he may be said in this reconciliation to be at peace at once with himself and with God.

Again, he is 'free,' (1) in the sense that he is the author of the law which he obeys (for this law is the expression of that which is his self), and that he obeys it because conscious of himself as its author; in other words, obeys it from that impulse after self-perfection which is the source of the law or rather constitutes it. He is 'free' (2) in the sense that he not merely 'delights in the law after the inward man' (to use St. Paul's phrase), while his natural impulses are at once thwarted by it and thwart him in his effort to conform to it, but that these very impulses have been drawn into its service, so that he is in bondage neither to it nor to the flesh.

From the same point of view we may say that his will is 'autonomous,' conforms to the law which the will itself constitutes, because the law (which prevents him from finding satisfaction anywhere but in the realisation in himself of an idea of perfection) represents the action in him of that self-realising principle of which his will is itself a form. There is an appearance of equivocation, however, in this way of speaking, because the 'will' which is liable not to be autonomous, and which we suppose gradually to approach autonomy in the sense of conforming to the law above described, is not this self-realising principle in the form in which this principle involves or gives the law. On the contrary, it is the self-realising principle as constituting that effort after self-satisfaction in each of us which is liable to be and commonly is directed to objects which are not contributory to the realisation of the idea of perfection,—objects which the self-realising principle accordingly, in the fulfilment of its work, has to set aside. The equivocation is pointed out by saying, that the good will is 'autonomous' in the sense of conforming to a law which the will itself, as reason, constitutes; which is, in fact, a condensed way of saying, that the good will is the will of which the object coincides with that of practical reason; that will has its source in the same self-realising principle which yields that consciousness of a possible self-perfection which we call reason, and that it can only correspond to its idea, or become what it has the possibility of becoming, in being directed to the realisation of that consciousness.

23. According to the view here taken, then, reason and will, even as they exist in men, are one in the sense that they are alike expressions of one self-realising principle. In God, or rather in the ideal human person as he really exists in God, they are actually one; i.e. self-satisfaction is for ever sought and found in the realisation of a completely articulated or thoroughly filled idea of the perfection of the human person. In the historical man—in the men that have been and are coming to be—they tend to unite. In the experience of mankind, and again in the experience of the individual as determined by the experience of mankind, both the idea of a possible perfection of man, the idea of which reason is the faculty, and the impulse after self-satisfaction which belongs to the will, undergo modifications which render their reconciliation in the individual (and it is only in individuals that they can be reconciled, because it is only in them that they exist) more attainable. These modifications may be stated summarily as (1) an increasing concreteness in the idea of human perfection; its gradual development from the vague inarticulate feeling that there is such a thing into a conception of a complex organisation of life, with laws and institutions, with relationships, courtesies, and charities, with arts and graces through which the perfection is to be attained; and (2) a corresponding discipline, through inheritance and education, of those impulses which may be called 'natural' in the sense of being independent of any conscious direction to the fulfilment of an idea of perfection. Such discipline does not amount to the reconciliation of will and reason; it is not even, properly speaking, the beginning of it; for the reconciliation only begins with the direction of the impulse after self-satisfaction to the realisation of an idea of what should be, as such (because it should be); and no discipline through inheritance or education, just because it is only impulses that are natural (in the sense defined) which it can affect, can bring about this direction, which, in theological language, must be not of nature, but of grace. On the contrary, the most refined impulses may be selfishly indulged; i.e. their gratification may be made an object in place of that object which consists in the realisation of the idea of perfection. But unless a discipline and refinement of the natural impulses, through the operation of social institutions and arts, went on pari passu with the expression of the idea of perfection in such institutions and arts, the direction of the impulses of the individual by this idea, when in some form or other it has been consciously awakened in him, would be practically impossible. The moral progress of mankind has no reality except as resulting in the formation of more perfect individual characters; but on the other hand every progress towards perfection on the part of the individual character presupposes some embodiment or expression of itself by the self-realising principle in what may be called (to speak most generally) the organisation of life. It is in turn, however, only through the action of individuals that this organisation of life is achieved.

24. Thus the process of reconciliation between will and reason,—the process through which each alike comes actually to be or to do what it is and does in possibility, or according to its idea, or according to the law of its being,—so far as it comes within our experience may be described as follows. A certain action of the self-realising principle, of which individuals susceptible in various forms to the desire to better themselves have been the media, has resulted in conventional morality; in a system of recognised rules (whether in the shape of law or custom) as to what the good of society requires, which no people seem to be wholly without. The moral progress of the individual, born and bred under such a system of conventional morality, consists (1) in the adjustment of the self-seeking principle in him to the requirements of conventional morality, so that the modes in which he seeks self-satisfaction are regulated by the sense of what is expected of him. This adjustment (which it is the business of education to effect) is so far a determination of the will as in the individual by objects which the universal or national human will, of which the will of the individual is a partial expression, has brought into existence, and is thus a determination of the will by itself. It consists (2) in a process of reflection, by which this feeling in the individual of what is expected of him becomes a conception (under whatever name) of something that universally should be, of something absolutely desirable, of a single end or object of life. The content of this conception may be no more than what was already involved in the individual's feeling of what is expected of him; that is to say, if called upon to state in detail what it is that has to be done for the attainment of the absolute moral end or in obedience to the law of what universally should be, he might only be able to specify conduct which, apart from any such explicit conception, he felt was expected of him. For all that there is a great difference between feeling that a certain line of conduct is expected of me and conceiving it as a form of a universal duty. So long as the requirements of established morality are felt in the former way, they present themselves to the man as imposed from without. Hence, though they are an expression of practical reason, as operating in previous generations of men, yet, unless the individual conceives them as relative to an absolute end common to him with all men, they become antagonistic to the practical reason which operates in him, and which in him is the source at once of the demand for self-satisfaction and of the effort to find himself in, to carry his own unity into, all things presented to him. Unless the actions required of him by 'the divine law, the civil law, and the law of opinion or reputation' (to use Locke's classification) tend to realise his own idea of what should be or is good on the whole, they do not form an object which, as contemplated, he can harmonise with the other objects which he seeks to understand, nor, as a practical object, do they form one in the attainment of which he can satisfy himself. Hence before the completion of the process through which the individual comes to conceive the performance of the actions expected of him under the general form of a duty which in the freedom of his own reason he recognises as binding, there is apt to occur a revolt against conventional morality. The issue of this may either be an apparent suspension of the moral growth of the individual, or a clearer apprehension of the spirit underlying the letter of the obligations laid on him by society, which makes his rational recognition of duty, when arrived at, a much more valuable influence in promoting the moral growth of society.

25. Process (2), which may be called a reconciliation of reason with itself, because it is the appropriation by reason as a personal principle in the individual of the work which reason, acting through the media of other persons, has already achieved in the establishment of conventional morality, is the condition of the third stage in which the moral progress of the individual consists; viz. the growth of a personal interest in the realisation of an idea of what should be, in doing what is believed to contribute to the absolutely desirable, or to human perfection, because it is believed to do so. Just so far as this interest is formed, the reconciliation of the two modes in which the practical reason operates in the individual is effected. The demand for self-satisfaction (practical reason as the will of the individual) is directed to the realisation of an ideal object, the conceived 'should be,' which practical reason as our reason constitutes. The 'autonomy of the will' is thus attained in a higher sense than it is in the 'adjustment' described under (1), because the objects to which it is directed are not merely determined by customs and institutions which are due to the operation of practical reason in previous ages, but are embodiments or expressions of the conception of what absolutely should be as formed by the man who seeks to satisfy himself in their realisation. Indeed, unless in the stage of conformity to conventional morality the principle of obedience is some feeling (though not a clear conception) of what should be, of the desirable as distinct from the desired,—if it is merely fear of pain or hope of pleasure,—there is no approach to autonomy of the will or moral freedom in the conformity. We must not allow the doctrine that such freedom consists in a determination of the will by reason, and the recognition of the truth that the requirements of conventional morality are a product of reason as operating in individuals of the past, to mislead us into supposing that there is any moral freedom, or anything of intrinsic value, in the life of conventional morality as governed by 'interested motives,' by the desire, directly or indirectly, to obtain pleasure. There can be no real determination of the will by reason unless both reason and will are operating in one and the same person. A will is not really anything except as the will of a person, and, as we have seen, a will is not really determinable by anything foreign to itself: it is only determinable by an object which the person willing makes his own. As little is reason really anything apart from a self-conscious subject, or as other than an idea of perfection to be realised in and by such a subject. The determination of will by reason, then, which constitutes moral freedom or autonomy, must mean its determination by an object which a person willing, in virtue of his reason, presents to himself, that object consisting in the realisation of an idea of perfection in and by himself. Kant's view that the action which is merely 'pflichtmässig,' not done 'aus Pflicht,' [1] is of no moral value in itself, whatever may be its possible value as a means to the production of the will which does act 'aus Pflicht,' is once for all true, though he may have taken too narrow a view of the conditions of actions done 'aus Pflicht,' especially in supposing (as he seems to do) that it is necessary to them to be done painfully. There is no determination of will by reason, no moral freedom, in conformity of action to rules of which the establishment is due to the operation of reason or the idea of perfection in men, unless the principle of conformity in the persons conforming is that idea itself in some form or other.

[1] [German aus Pflicht = from duty, pflichtmässig = consistent with duty—Tr.]

LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION.

Note of the Editor.

These lectures, which are partly critical and partly expository, treat of the moral grounds upon which the state is based and upon which obedience to the law of the state is justified. They were delivered in 1879-80, following upon the course from which the discussion of Kant's moral theory in this volume is taken. The two courses are directly connected, civil institutions being throughout regarded as the external expression of the moral progress of mankind, and as supplying the material through which the idea of perfection must be realised.

As is implied in section 5, the inquiry into the nature of political obligation forms part of a wider inquiry into the concrete forms of morality in general, 'the detail of goodness.' The lecturer had intended to complete the course by a consideration of 'social virtues' and 'moral sentiments'; but this intention was not carried out. (See section 251.)

LECTURES ON THE PRINCIPLES OF POLITICAL OBLIGATION.

A. THE GROUNDS OF POLITICAL OBLIGATION.

1. The subject of this course of lectures is the principles of political obligation; and that term is intended to include the obligation of the subject towards the sovereign, the obligation of the citizen towards the state, and the obligation of individuals to each other as enforced by a political superior. My purpose is to consider the moral function or object served by law, or by the system, of rights and obligations which the state enforces, and in so doing to discover the true ground or justification for obedience to law. My plan will be (1) to state in outline what I consider the true function of law to be, this being at the same time the true ground of our moral duty to obey the law; and throughout I distinguish moral duty from legal obligation; (2) to examine the chief doctrines of political obligation that have been current in modern Europe, and by criticising them to bring out more clearly the main points of a truer doctrine; (3) to consider in detail the chief rights and obligations enforced in civilised states, inquiring what is their justification, and what is the ground for respecting them on the principle stated.

2. In previous lectures I have explained what I understand moral goodness to be, and how it is possible that there should be such a thing; in other words, what are the conditions on the part of reason and will which are implied in our being able to conceive moral goodness as an object to be aimed at, and to give some partial reality to the conception. Our results on this question may be briefly stated as follows.

The highest moral goodness we found was an attribute of character, in so far as it issued in acts done for the sake of their goodness, not for the sake of any pleasure or any satisfaction of desire which they bring to the agent. But it is impossible that an action should be done for the sake of its goodness, unless it has been previously contemplated as good for some other reason than that which consists in its being done for the sake of its goodness. It must have been done, or conceived as possible to be done, and have been accounted good, irrespectively of the being done from this which we ultimately come to regard as the highest motive. In other words, a prior morality, founded upon interests which are other than the pure interest in being good, and governed by rules of conduct relative to a standard of goodness other than that which makes it depend on this interest, is the condition of there coming to be a character governed by interest in an ideal of goodness. Otherwise this ideal would be an empty one; it would be impossible to say what the good actions were, that were to be done for the sake of their goodness; and the interest in this ideal would be impossible, since it would be an interest without an object.

3. When, however, morality of the latter kind has come to be recognised as the highest or the only true morality, the prior morality needs to be criticised from the point of view thus gained. Those interests, other than the interest in being good, which form the motives on the part of the individual on which it rests, will not indeed be rejected as of no moral value; for no one can suppose that without them, or except as regulating them, the pure interest in being good could determine conduct at all. But they will be estimated according to their value as leading up to, or as capable of becoming elements in, a character in which this interest is the governing principle. Again, those rules of conduct, according to which the terms right and wrong, good and bad, are commonly applied, and which, as was just now said, are relative to a standard certainly not founded on the conception of the good as consisting in the character described, are not indeed to be rejected; for without them there would be nothing to define the duties which the highest character is prepared to do for their own sake. But they have to be revised according to a method which inquires into their rationale or justification, as conditions of approximation to the highest character.

4. Such a criticism of moral interests—of the general motives which determine moral conduct and regulate such moral approbation or disapprobation as is not based on a strict theory of moral good—may be called by the name of 'a theory of moral sentiments.' The criticism of recognised rules of conduct will fall under two heads, according as these rules are embodied in positive law (law of which the observance is enforced on the individual by a political superior), or only form part of the 'law of opinion' (part of what the individual feels to be expected of him by some person or persons to whose expectations he ought to conform).

5. Moral interests are so greatly dependent on generally recognised rules of conduct that the criticism of the latter should come first. The law of opinion, again, in so many ways presupposes a social fabric supported by 'positive' law, that we can only fairly take account of it when we have considered the moral value and justifiability of the fabric so supported. I propose therefore to begin our inquiry into the detail of goodness—into the particular kinds of conduct which the man wishing to do good for the sake of its goodness is entitled to count good—by considering what is of permanent moral value in the institutions of civil life, as established in Europe; in what way they have contributed and contribute to the possibility of morality in the higher sense of the term, and are justified, or have a moral claim upon our loyal conformity, in consequence.

6. The condition of a moral life is the possession of will and reason. Will is the capacity in a man of being determined to action by the idea of a possible satisfaction of himself. An act of will is an action so determined. A state of will is the capacity as determined by the particular objects in which the man seeks self-satisfaction; and it becomes a character in so far as the self-satisfaction is habitually sought in objects of a particular kind. Practical reason is the capacity in a man of conceiving the perfection of his nature as an object to be attained by action. All moral ideas have their origin in reason, i.e. in the idea of a possible self-perfection to be attained by the moral agent. This does not mean that the moral agent in every stage of his progress could state this idea to himself in an abstract form, any more than in every stage in the acquisition of knowledge about nature a man can state to himself in an abstract form the conception of the unity of nature, which yet throughout conditions the acquisition of his knowledge. Ideas do not first come into existence, or begin to operate, upon the formation of an abstract expression for them. This expression is only arrived at upon analysis of a concrete experience, which they have rendered possible. Thus we only learn to express the idea of self-perfection in that abstract form upon an analysis of an experience of self-improvement which we have ourselves gone through, and which must have been gone through by those with whom we are connected by the possession of language and an organisation of life, however elementary: but the same analysis shows that the same idea must have been at work to make such experience possible. In this idea all particular moral ideas—all ideas of particular forms of conduct as estimable—originate, though an abstract expression for the latter is arrived at much sooner than such an expression for the idea in which they originate. They arise, as the individual's conception of the society on the well-being of which his own depends, and of the constituents of that well-being, becomes wider and fuller; and they are embodied in the laws, institutions, and social expectation, which make conventional morality. This embodiment, again, constitutes the moral progress of mankind. This progress, however, is only a moral progress in so far as it tends to bring about the harmony of will and reason, in the only form in which it can really exist, viz. in the characters of persons. And this result is actually achieved, in so far as upon habits disciplined by conformity to conventional morality there supervenes an intelligent interest in some of the objects contributory to human perfection, which that conventional morality subserves, and in so far as that interest becomes the dominant interest of the character.

7. The value then of the institutions of civil life lies in their operation as giving reality to these capacities of will and reason, and enabling them to be really exercised. In their general effect, apart from particular aberrations, they render it possible for a man to be freely determined by the idea of a possible satisfaction of himself, instead of being driven this way and that by external forces, and thus they give reality to the capacity called will: and they enable him to realise his reason, i.e. his idea of self-perfection, by acting as a member of a social organisation in which each contributes to the better-being of all the rest. So far as they do in fact thus operate they are morally justified, and may be said to correspond to the 'law of nature,' the jus naturae, according to the only sense in which that phrase can be intelligibly used.

8. There has been much controversy as to what the jus naturae ('Naturrecht') really is, or whether there is such a thing at all. And the controversy, when it comes to be dealt with in English, is further embarrassed by the fact that we have no one term to represent the full meaning of 'jus' or 'Recht,' as a system of correlative rights and obligations, actually enforced or that should be enforced by law. But the essential questions are: (1) whether we are entitled to distinguish the rights and obligations which are anywhere actually enforced by law from rights and obligations which really exist though not enforced; and (2), if we are entitled to do so, what is to be our criterion of rights and obligations which are really valid, in distinction from those that are actually enforced.

9. No one would seriously maintain that the system of rights and obligations, as it is anywhere enforced by law,—the 'jus' or 'Recht' of any nation—is all that it ought to be. Even Hobbes holds that a law, though it cannot be unjust, may be pernicious. But there has been much objection to the admission of natural rights and obligations. At any rate the phrase is liable to misinterpretation. It may be taken to imply that rights and obligations can exist in a 'state of nature'—a state in which every individual is free to do as he likes—; that legal rights and obligations derive their authority from a voluntary act by which individuals contracted themselves out of this state; and that the individual retains from the state of nature certain rights with which no legal obligations ought to conflict. Such a doctrine is generally admitted to be untenable; but it does not follow from this that there is not a true and important sense in which natural rights and obligations exist,—the same sense as that in which duties may be said to exist though unfulfilled. There is a system of rights and obligations which should be maintained by law, whether it is so or not, and which may properly be called 'natural'; not in the sense in which the term 'natural' would imply that such a system ever did exist or could exist independently of force exercised by society over individuals, but 'natural' because necessary to the end which it is the vocation of human society to realise.

10. The 'jus naturae,' thus understood, is at once distinguished from the sphere of moral duty, and relative to it. It is distinguished from it because admitting of enforcement by law. Moral duties do not admit of being so enforced. The question sometimes put, whether moral duties should be enforced by law, is really an unmeaning one; for they simply cannot be enforced. They are duties to act, it is true, and an act can be enforced: but they are duties to act from certain dispositions and with certain motives, and these cannot be enforced. Nay, the enforcement of an outward act, the moral character of which depends on a certain motive and disposition, may often contribute to render that motive and disposition impossible: and from this fact arises a limitation to the proper province of law in enforcing acts, which will have to be further considered below. When obligations then are spoken of in this connection, as part of the 'jus naturae' correlative to rights, they must always be understood not as moral duties, not as relative to states of will, but as relative to outward acts, of which the performance or omission can and should be enforced. There is a moral duty to discharge such obligations, and to do so in a certain spirit, but the obligation is such as that with which law has to do or may have to do, is relative to an outward act merely, and does not amount to a moral duty. There is a moral duty in regard to obligations, but there can be no obligation in regard to moral duties. Thus the 'jus naturae'—the system of rights and obligations, as it should become no less than as it actually is maintained—is distinct from morality in the proper sense. But it is relative to it. This is implied in saying that there is a moral duty in regard to actual obligations, as well as in speaking of the system of rights and obligations as it should become. If such language is justifiable, there must be a moral ground both for conforming to, and for seeking to develope and improve, established 'Recht'; a moral ground which can only lie in the moral end served by that established system.

11. Thus we begin the ethical criticism of law with two principles:—(1) that nothing but external acts can be matter of 'obligation' (in the restricted sense); and (2) that, in regard to that which can be made matter of obligation, the question what should be made matter of obligation—the question how far rights and obligations, as actually established by law, correspond to the true 'jus naturae'—must be considered with reference to the moral end, as serving which alone law and the obligations imposed by law have their value.[1]

[1] There are two definitions of 'Recht' or 'jus naturae,' quoted by Ulrici (Naturrecht, p. 219), which embody the truths conveyed in these statements. (1) Krause defines 'Recht' as 'das organische Ganze der äusseren Bedingungen des Vernunftlebens,' 'the organic whole of the outward conditions necessary to the rational life.' (2) Henrici says that 'Recht' is 'was der Idee der Unverletzbarkeit der materiellen wesentlichen Bedingungen des moralischen Menschenthums, d. h. der menschlichen Persönlichkeit nach ihrer Existenz und ihrer Vervollkommnung, oder der unveräusserlichen Menschengüter im äusserlichen Verkehr entspricht': i.e. 'Right is what' (or, 'that is properly matter of legal obligation which') 'in the outward intercourse of men corresponds to the idea of the inviolability of the essential material conditions of a moral humanity, i.e. of the human personality in respect of its existence and its perfection;' or, more simply, 'Right is that which is really necessary to the maintenance of the material conditions essential to the existence and perfection of human personality.' Cf. Trendelenburg, Naturrecht, Sect. 46. 'Das Recht ist im sittlichen Ganzen der Inbegriff derjenigen allgemeinen Bestimmungen des Handelns, durch welche es geschieht dass das sittliche Ganze und seine Gliederung sich erhalten und weiter bilden kann.' Afterwards he emphasises the words 'des Handelns,' and adds: 'Zwar kann das Handeln nicht ohne den Willen gedacht werden, der zum Grunde liegt: aber die Rechtbestimmungen sind nicht Bestimmungen des Willens als solchen, was dem innern Gebiet, der Ethik der Gesinnung, anheimfallen würde. Der Wille der nicht Handlung wird entzieht sich dem Recht. Wenn das Recht Schuld und Versehen, dolus und culpa, in sein Bereich zieht, so sind sie als innere aber charakteristische Beschaffenbeiten des Handelns anzusehen.'

12. Before proceeding, some remarks have to be made as to what is implied in these principles, (a) Does the law, or is it possible that it should, confine its view to external acts? What exactly is meant by an external act? In the case of obligations which I am legally punishable for disregarding, the law, in deciding whether punishment is or is not due, takes account of much beside the external act; and this implies that much beside external action is involved in legal obligation. In the case where the person or property of another is damaged by me, the law does not inquire merely whether the act of damage was done, and done by means of my bodily members, but whether it was done intentionally: and if not done with the direct intention of inflicting the damage, whether the damage arose in a manner that might have been foreseen out of something which I did intend to do: whether, again, if it was done quite accidentally the accident was due to culpable negligence. This, however, does not show that the law can enforce or prevent anything but external action, but only that it is action which it seeks to enforce or prevent, for without intention there is no action. We talk indeed of a man acting against his will, but if this means acting against intention it is what it is impossible to do. What I call an act done against my will is either (1) an act done by someone else using my body, through superior force, as a means: in which case there is an act, but it is not mine (e.g. if another uses my hand to pull the trigger of a gun by which someone is shot); or (2) a natural event in which my limbs are affected in a certain way which causes certain results to another person (e.g. if the rolling of a ship throws me against another person who is thus thrown into the water); or (3) an act which I do under the influence of some strong inducement (e.g. the fear of death), but which is contrary to some strong wish. In this case the act is mine, but mine because I intend it; because it is not against my will as = intention. In saying, then, that the proper, because the only possible, function of law is to enforce the performance of or abstinence from external actions, it is implied that its function is to produce or prevent certain intentions, for without intention on the part of someone there is no act.

13. But if an act necessarily includes intention, what is the nature of the restriction implied in calling it external? An external action is a determination of will as exhibited in certain motions of the bodily members which produce certain effects in the material world; not a determination of the will as arising from certain motives and a certain disposition. All that the law can do is to enjoin or forbid determinations of will as exhibited in such motions, &c. It does indeed present a motive, for it enforces its injunctions and prohibitions primarily by fear, by its threat of certain consequences if its commands are disobeyed. This enforcement is not an exercise of physical force in the strict sense, for in this sense no force can produce an action, since it cannot produce a determination of will; and the only way in which the law or its administrators employ such force is not in the production but in the prevention of action (as when a criminal is locked up or the police prevent mischievous persons from assaulting us or breaking into our houses). But though, in enforcing its commands by threats, the law is presenting a motive, and thus, according to our distinction, affecting action on its inner side, it does this solely for the sake of the external act. It does not regard the relation of the act to the motive fear as of any intrinsic importance. If the action is performed without this motive ever coming into play under the influence of what the moralist counts higher motives, the purpose of the law is equally satisfied. Indeed, it is always understood that its purpose is most thoroughly served when the threat of pains and penalties has ceased to be necessary, and the obligations correlative to the relations of individuals and of societies are fulfilled from other motives. Its business is to maintain certain conditions of life—to see that certain actions are done which are necessary to the maintenance of those conditions, others omitted which would interfere with them. It has nothing to do with the motive of the actions or omissions, on which, however, the moral value of them depends.

14. It appears, then, that legal obligations—obligations which can possibly form the subject of positive law—can only be obligations to do or abstain from certain acts, not duties of acting from certain motives, or with a certain disposition. It is not a question whether the law should or should not oblige to anything but performance of outward acts. It simply cannot oblige to anything else, because the only means at its command for obtaining the fulfilment of obligations are (1) threats of pain and offers of reward, by means of which it is possible indeed to secure the general performance of certain acts, but not their performance from the motive even of fear of the pain threatened or hope of the reward offered, much less from any higher motive; (2) the employment of physical force, (a) in restraining men disposed to violate obligations, (b) in forcibly applying the labour or the property of those who violate obligations to make good the breach, so far as is possible: (as, e.g., when the magistrate forestalls part of a man's wages to provide for a wife whom he has deserted, or when the property of a debtor is seized for the benefit of his creditors.)

15. Only outward acts, then, can be matter of legal obligation; but what sort of outward acts should be matter of legal obligation? The answer to this question arises out of the above consideration of the means which law employs to obtain the fulfilment of obligations, combined with the view of law as relative to a moral end, i.e. the formation of a society of persons, acting from a certain disposition, from interest in the society as such. Those acts only should be matter of legal injunction or prohibition of which the performance or omission, irrespectively of the motive from which it proceeds, is so necessary to the existence of a society in which the moral end stated can be realised, that it is better for them to be done or omitted from that unworthy motive which consists in fear or hope of legal consequences than not to be done at all.

16. We distinguish, then, the system of rights actually maintained and obligations actually enforced by legal sanctions ('Recht' or 'jus') from the system of relations and obligations which should be maintained by such sanctions ('Naturrecht'); and we hold that those actions or omissions should be made obligations which, when made obligations, serve a certain moral end; that this end is the ground or justification or rationale of legal obligation; and that thus we obtain a general rule, of both positive and negative application, in regard to the proper matter or content of legal obligation. For since the end consists in action proceeding from a certain disposition, and since action done from apprehension of legal consequences does not proceed from that disposition, no action should be enjoined or prohibited by law of which the injunction or prohibition interferes with actions proceeding from that disposition, and every action should be so enjoined of which the performance is found to produce conditions favourable to action proceeding from that disposition, and of which the legal injunction does not interfere with such action.

17. Does this general rule give any real guidance in the difficulties which practically arise in regard to the province of law—as to what should be required by law, and what left to the inclination of individuals? What cases are there or have there been of enactments which on this principle we can pronounce wrong? Have attempts ever been made by law to enforce acts as virtuous which lose their virtue when done under fear of legal penalties? It would be difficult, no doubt, to find instances of attempts to enforce by law actions of which we should say that the value lies in the disposition from which they are done, actions, e.g. of disinterested kindness, because the clear conception of virtue as depending not on outward results, but on disposition, is but slowly arrived at, and has never been reflected in law. But without any strictly moral object at all, laws have been made which check the development of the moral disposition. This has been done (a) by legal requirements of religious observance and profession of belief, which have tended to vitiate the religious source of morality; (b) by prohibitions and restraints, unnecessary, or which have ceased to be necessary, for maintaining the social conditions of the moral life, and which interfere with the growth of self-reliance, with the formation of a manly conscience and sense of moral dignity,—in short, with the moral autonomy which is the condition of the highest goodness; (c) by legal institutions which take away the occasion for the exercise of certain moral virtues (e.g. the Poor-law which takes away the occasion for the exercise of parental forethought, filial reverence, and neighbourly kindness).

18. Laws of this kind have often been objected to on the strength of a one-sided view of the function of laws; the view, viz., that its only business is to prevent interference with the liberty of the individual. And this view has gained undue favour on account of the real reforms to which it has led. The laws which it has helped to get rid of were really mischievous, but mischievous for further reasons than those conceived of by the supporters of this theory. Having done its work, the theory now tends to become obstructive, because in fact advancing civilisation brings with it more and more interference with the liberty of the individual to do as he likes, and this theory affords a reason for resisting all positive reforms, all reforms which involve an action of the state in the way of promoting conditions favourable to moral life. It is one thing to say that the state in promoting these conditions must take care not to defeat its true end by narrowing the region within which the spontaneity and disinterestedness of true morality can have play; another thing to say that it has no moral end to serve at all, and that it goes beyond its province when it seeks to do more than secure the individual from violent interference by other individuals. The true ground of objection to 'paternal government' is not that it violates the 'laissez faire' principle and conceives that its office is to make people good, to promote morality, but that it rests on a misconception of morality. The real function of government being to maintain conditions of life in which morality shall be possible, and morality consisting in the disinterested performance of self-imposed duties, 'paternal government' does its best to make it impossible by narrowing the room for the self-imposition of duties and for the play of disinterested motives.

19. The question before us, then, is, In what ways and how far do the main obligations enforced and rights maintained by law in all civilised societies contribute to the moral end described; viz. to establish those conditions of life in which a true, i.e. a disinterested or unselfish morality shall be possible? The answer to this question will be a theory of the 'jus naturae'; i.e. it will explain how far positive law is what it should be, and what is the ground of the duty to obey it; in other words, of political obligation. There are two things from which such a theory must be distinguished. (1) It is not an inquiry into the process by which actual law came to be what it is; nor (2) is it an inquiry how far actual law corresponds to and is derived from the exercise of certain original or natural rights. (1) It is not the former, because the process by which the law of any nation and the law in which civilised nations agree has come to be what it is, has not been determined by reference to that end to which we hold that law ought to be directed and by reference to which we criticise it. That is to say, the process has not been determined by any such conscious reference on the part of the agents in the process. No doubt a desire for social good as distinct from private pleasure, for what is good on the whole as distinct from what is good for the moment, has been a necessary condition of it; but (a), as an agent in the development of law, this has not reached the form of a conception of moral good according to that definition of it by which the value of law is to be estimated; and (b) in bringing law to its present state it has been indistinguishably blended with purely selfish passions and with the simple struggle for existence.

20. (2) A true theory of 'jus naturae,' a rationale of law or ideal of what it should be, is not to be had by inquiring how far actual law corresponds to, and is derived from, the exercise of certain original or natural rights, if that is taken to mean that we know, or can ascertain, what rights are natural on grounds distinct from those on which we determine what laws are justifiable, and that then we can proceed to ascertain what laws are justifiable by deduction from such rights. 'Natural rights,' so far as there are such things, are themselves relative to the moral end to which perfect law is relative. A law is not good because it enforces 'natural rights,' but because it contributes to the realisation of a certain end. We only discover what rights are natural by considering what powers must be secured to a man in order to the attainment of this end. These powers a perfect law will secure to their full extent. Thus the consideration of what rights are 'natural' (in the only legitimate sense) and the consideration what laws are justifiable form one and the same process, each presupposing a conception of the moral vocation of man.

21. The doctrine here asserted, that all rights are relative to moral ends or duties, must not be confused with the ordinary statement that every right implies a duty, or that rights and duties are correlative. This of course is true in the sense that possession of a right by any person both implies an obligation on the part of someone else, and is conditional upon the recognition of certain obligations on the part of the person possessing it. But what is meant is something different, viz. that the claim or right of the individual to have certain powers secured to him by society, and the counter-claim of society to exercise certain powers over the individual, alike rest on the fact that these powers are necessary to the fulfilment of man's vocation as a moral being, to an effectual self-devotion to the work of developing the perfect character in himself and others.

22. This, however, is not the ground on which the claim in question has generally been asserted. Apart from the utilitarian theory, which first began to be applied politically by Hume, the ordinary way of justifying the civil rights of individuals (i.e. the powers secured to them by law as against each other), as well as the rights of the state against individuals (i.e. the powers which, with the general approval of society, it exercises against them), has been to deduce them from certain supposed prior rights, called natural rights. In the exercise of these natural rights, it has been supposed, men with a view to their general interest established political society. From that establishment is derived both the system of rights and obligations maintained by law as between man and man, and the right of the state to the submission of its subjects. If the question, then, is raised, why I ought to respect the legal rights of my neighbours, to pay taxes, or have my children vaccinated, serve in the army if the state requires it, and generally submit to the law, the answer according to this theory will be that if I fail to do so, I shall directly or indirectly be violating the natural rights of other men; directly in those cases where the legal rights of my neighbours are also natural rights, as they very well may be (e.g. rights of liberty or personal safety); indirectly where this is not the case, because, although the rights of the state itself are not natural, and many rights exercised by individuals would not only not be secured but would not exist at all but for legal enactment, yet the state itself results from a covenant which originally, in the exercise of their natural rights, men made with each other, and to which all born under the state and sharing the advantages derived from it must be considered parties. There is a natural right, therefore, on the part of each member of a state to have this compact observed, with a corresponding obligation to observe it; and this natural right of all is violated by any individual who refuses to obey the law of the state or to respect the rights, not in themselves natural, which the state confers on individuals.

23. This, on the whole, was the form in which the ground of political obligation, the justification of established rights, was presented throughout the seventeenth century, and in the eighteenth till the rise of the 'utilitarian' theory of obligation. Special adaptations of it were made by Hobbes and others. In Hobbes, perhaps (of whom more later), may be found an effort to fit an anticipation of the utilitarian theory of political obligation into the received theory which traced political obligation, by means of the supposition of a primitive contract, to an origin in natural right. But in him as much as anyone the language and framework of the theory of compact is retained, even if an alien doctrine may be read between the lines. Of the utilitarian theory of political obligation more shall be said later. It may be presented in a form in which it would scarcely be distinguishable from the doctrine just now stated, the doctrine, viz., that the ground of political obligation, the reason why certain powers should be recognised as belonging to the state and certain other powers as secured by the state to individuals, lies in the fact that these powers are necessary to the fulfilment of man's vocation as a moral being, to an effectual self-devotion to the work of developing the perfect character in himself and others. Utilitarianism proper, however, recognises no vocation of man but the attainment of pleasure and avoidance of pain. The only reason why civil rights should be respected—the only justification of them—according to it, would be that more pleasure is attained or pain avoided by the general respect for them; the ground of our consciousness that we ought to respect them, in other words their ultimate sanction, is the fear of what the consequences would be if we did not. This theory and that which I deem true have one negative point in common. They do not seek the ground of actual rights in a prior natural right, but in an end to which the maintenance of the rights contributes. They avoid the mistake of identifying the inquiry into the ultimate justifiability of actual rights with the question whether there is a prior right to the possession of them. The right to the possession of them, if properly so called, would not be a mere power, but a power recognised by a society as one which should exist. This recognition of a power, in some way or other, as that which should be, is always necessary to render it a right. Therefore when we had shown that the rights exercised in political society were derived from prior 'natural' rights, a question would still remain as to the ground of those natural rights. We should have to ask why certain powers were recognised as powers which should be exercised, and thus became these natural rights.

24. Thus, though it may be possible and useful to show how the more seemingly artificial rights are derived from rights more simple and elementary, how the rights established by law in a political society are derived from rights that may be called natural, not in the sense of being prior to society, but in the sense of being prior to the existence of a society governed by written law or a recognised sovereign, still such derivation is no justification of them. It is no answer to the question why they should be respected; because this question remains to be asked in regard to the most primitive rights themselves. Political or civil rights, then, are not to be explained by derivation from natural rights, but in regard to both political and natural rights, in any sense in which there can be truly said to be natural rights, the question has to be asked, how it is that certain powers are recognised by men in their intercourse with each other as powers that should be exercised, or of which the possible exercise should be secured.

25. I have tried to show in lectures on morals that the conception expressed by the 'should be' is not identical with the conception of a right possessed by some man or men, but one from which the latter conception is derived. It is, or implies on the part of whoever is capable of it, the conception of an ideal, unattained condition of himself, as an absolute end. Without this conception the recognition of a power as a right would be impossible. A power on the part of anyone is so recognised by others, as one which should be exercised, when these others regard it as in some way a means to that ideal good of themselves which they alike conceive: and the possessor of the power comes to regard it as a right through consciousness of its being thus recognised as contributory to a good in which he too is interested. No one therefore can have a right except (1) as a member of a society, and (2) of a society in which some common good is recognised by the members of the society as their own ideal good, as that which should be for each of them. The capacity for being determined by a good so recognised is what constitutes personality in the ethical sense; and for this reason there is truth in saying that only among persons, in the ethical sense, can there come to be rights; (which is quite compatible with the fact that the logical disentanglement of the conception of rights precedes that of the conception of the legal person; and that the conception of the moral person, in its abstract and logical form, is not arrived at till after that of the legal person).

Conversely, everyone capable of being determined by the conception of a common good as his own ideal good, as that which unconditionally should be (of being in that sense an end to himself), in other words, every moral person, is capable of rights; i.e. of bearing his part in a society in which the free exercise of his powers is secured to each member through the recognition by each of the others as entitled to the same freedom with himself. To say that he is capable of rights, is to say that he ought to have them, in that sense of 'ought' in which it expresses the relation of man to an end conceived as absolutely good, to an end which, whether desired or no, is conceived as intrinsically desirable. The moral capacity implies a consciousness on the part of the subject of the capacity that its realisation is an end desirable in itself, and rights are the condition of realising it. Only through the possession of rights can the power of the individual freely to make a common good his own have reality given to it. Rights are what may be called the negative realisation of this power. That is, they realise it in the sense of providing for its free exercise, of securing the treatment of one man by another as equally free with himself, but they do not realise it positively, because their possession does not imply that in any active way the individual makes a common good his own. The possession of them, however, is the condition of this positive realisation of the moral capacity, and they ought to be possessed because this end (in the sense explained) ought to be attained.

26. Hence on the part of every person ('person' in the moral sense explained) the claim, more or less articulate and reflected on, to rights on his own part is co-ordinate with his recognition of rights on the part of others. The capacity to conceive a common good as one's own, and to regulate the exercise of one's powers by reference to a good which others recognise, carries with it the consciousness that powers should be so exercised; which means that there should be rights, that powers should be regulated by mutual recognition. There ought to be rights, because the moral personality,—the capacity on the part of an individual for making a common good his own,—ought to be developed; and it is developed through rights; i.e. through the recognition by members of a society of powers in each other contributory to a common good, and the regulation of those powers by that recognition.

27. In saying that only among 'persons' can there come to be rights, and that every 'person' should have rights, I have been careful to explain that I use 'person' in the moral, not merely in the legal, sense. In dealing, then, with such phrases as 'jura personarum' and 'personal rights,' we must keep in view the difference between the legal and ethical sense of the proposition that all rights are personal, or subsist as between persons. In the legal sense, so far as it is true,—and it is so only if 'person' is used in the sense of Roman law,—it is an identical proposition. A person means a subject of rights and nothing more. Legal personality is derived from the possession of right, not vice versa. Like other identical propositions, its use is to bring out and emphasise in the predicate what is included in the understood connotation of the subject; to remind us that when we speak of rights we imply the existence of parties, in English phraseology, capable of suing and being sued. In the ethical sense, it means that rights are derived from the possession of personality as = a rational will (i.e. the capacity which man possesses of being determined to action by the conception of such a perfection of his being as involves the perfection of a society in which he lives), in the sense (a) that only among beings possessed of rational will can there come to be rights, (b) that they fulfil their idea, or are justifiable, or such rights as should be rights, only as contributing to the realisation of a rational will. It is important to bear this distinction in mind in order that the proposition in its ethical sense, which can stand on its own merits, may not derive apparent confirmation from a juristic truism.

28. The moral idea of personality is constantly tending to affect the legal conception of the relation between rights and persons. Thus the 'jura personarum,' which properly = either rights arising out of 'status,' or rights which not only (like all rights) reside in someone having a legal status and are available against others having a legal status, but are exercised over, or in respect of, someone possessed of such status (e.g. a wife or a servant), come to be understood as rights derived from the human personality or belonging to man as man. It is with some such meaning that English writers on law speak of rights to life and liberty as personal rights. The expression might seem pleonastic, since no right can exist except as belonging to a person in the legal sense. They do not use the phrase either pleonastically or in the sense of the Roman lawyers' 'jura personarum' above, but in the sense that these rights are immediately derived from, or necessarily attach to, the human personality in whatever that personality is supposed to consist. There is no doubt, however, that historically the conception of the moral person, in any abstract form, is not arrived at till after that of the legal person has been thus disentangled and formulated; and further that the abstract conception of the legal person, as the sustainer of rights, is not arrived at till long after rights have been actually recognised and established. But the disentanglement or abstract formulation of the conception of moral personality is quite a different thing from the action of the consciousness in which personality consists.

29. The capacity, then, on the part of the individual of conceiving a good as the same for himself and others, and of being determined to action by that conception, is the foundation of rights; and rights are the condition of that capacity being realised. No right is justifiable or should be a right except on the ground that directly or indirectly it serves this purpose. Conversely every power should be a right, i.e. society should secure to the individual every power, that is necessary for realising this capacity. Claims to such powers as are directly necessary to a man's acting as a moral person at all—acting under the conception of a good as the same for self and others—may be called in a special sense personal rights (though they will include more than Stephen includes under that designation); they may also be called, if we avoid misconceptions connected with these terms, 'innate' or 'natural' rights. They are thus distinguished from others which are (1) only indirectly necessary to the end stated, or (2) are so only under special conditions of society; as well as from claims which rest merely on legal enactment and might cease to be enforced without any violation of the 'jus naturae.'

30. The objection to calling them 'innate' or 'natural,' when once it is admitted on the one side that rights are not arbitrary creations of law or custom but that there are certain powers which ought to be secured as rights, on the other hand that there are no rights antecedent to society, none that men brought with them into a society which they contracted to form, is mainly one of words. They are 'innate' or 'natural' in the same sense in which according to Aristotle the state is natural: not in the sense that they actually exist when a man is born and that they have actually existed as long as the human race, but that they arise out of, and are necessary for the fulfilment of, a moral capacity without which a man would not be a man. There cannot be innate rights in any other sense than that in which there are innate duties, of which, however, much less has been heard. Because a group of beings are capable each of conceiving an absolute good of himself and of conceiving it to be good for himself as identical with, and because identical with, the good of the rest of the group, there arises for each a consciousness that the common good should be the object of action, i.e. a duty, and a claim in each to a power of action that shall be at once secured and regulated by the consciousness of a common good on the part of the rest, i.e. a right. There is no ground for saying that the right arises out of a primary human capacity, and is thus 'innate,' which does not apply equally to the duty.

31. The dissociation of innate rights from innate duties has gone along with the delusion that such rights existed apart from society. Men were supposed to have existed in a state of nature, which was not a state of society, but in which certain rights attached to them as individuals, and then to have formed societies by contract or covenant. Society having been formed, certain other rights arose through positive enactment; but none of these, it was held, could interfere with the natural rights which belonged to men antecedently to the social contract or survived it.

Such a theory can only be stated by an application to an imaginary state of things, prior to the formation of societies as regulated by custom or law, of terms that have no meaning except in relation to such societies. 'Natural right,' as = right in a state of nature which is not a state of society, is a contradiction. There can be no right without a consciousness of common interest on the part of members of a society. Without this there might be certain powers on the part of individuals, but no recognition of these powers by others as powers of which they allow the exercise, nor any claim to such recognition; and without this recognition or claim to recognition there can be no right.

B. SPINOZA.

32. Spinoza is aware of this. In the Tractatus Politici, IT. 4, he says, 'Per jus itaque naturae intelligo … ipsam naturae potentiam.' [1] … 'Quicquid unusquisque homo ex legibus suae naturae agit, id summo naturae jure agit, tantumque in naturam habet juris, quantum potentia valet.' If only, seeing that the 'jus naturae' was mere 'potentia,' he had denied that it was 'jus' at all, he would have been on the right track. Instead of that, however, he treats it as properly 'jus,' and consistently with this regards all 'jus' as mere 'potentia': nor is any 'jus humanum' according to him guided by or the product of reason. It arises, in modern phrase, out of the 'struggle for existence.' As Spinoza says, 'homines magis caeca cupiditate quam ratione ducuntur; ac proinde hominum naturalis potentia sive jus non ratione, sed quocumque appetitu quo ad agendum determinantur, quoque se conservare conantur, definiri debet' (II. 5). The 'jus civile' is simply the result of the conflict of natural powers, which = natural rights, which arises from the effort of every man to gratify his passions and 'suum esse conservare.' Man is simply a 'pars naturae,' the most crafty of the animals. 'Quatenus homines ira, invidia aut aliquo odii affectu conflictantur, eatenus diverse trahuntur et invicem contrarii sunt, et propterea eo plus timendi, quo plus possunt, magisque callidi et astuti sunt, quam reliqua animalia; et quia homines ut plurimum his affectibus natura sunt obnoxii, sunt ergo homines ex natura hostes' (II. 14). Universal hostility means universal fear, and fear means weakness. It follows that in the state of nature there is nothing fit to be called 'potentia' or consequently 'jus'; 'atque adeo concludimus jus naturae vix posse concipi nisi ubi homines jura habent communia, qui simul terras, quas habitare et colere possunt, sibi vindicare, seseque munire, vimque omnem repellere et ex communi omnium sententia vivere possunt. Nam (per art. 13 hujus cap.) quo plures in unum sic conveniunt, eo omnes simul plus juris habent' (15). The collective body, i.e., has more 'jus in naturam,' i.e. 'potentiam,' than any individual could have singly (13). In the advantage of this increased 'jus in naturam' the individual shares. On the other hand (16), 'Ubi homines jura communia habent omnesque una veluti mente ducuntur, certum est (per art. 13 hujus cap.) eorum unumquemque tanto minus habere juris, quanto reliqui simul ipso potentiores sunt, hoc est, ilium revera jus nullum in naturam habere praeter id, quod ipsi commune concedit jus. Ceterum quicquid ex communi consensu ipsi imperatur, teneri exsequi vel (per art. 4 hujus cap.) jure ad id cogi.' This 'jus' by which the individual's actions are now to be regulated, is still simply 'potentia.' 'Hoc jus, quod multitudinis potentia definitur, imperium appellari solet' (17). It is not to be considered anything different from the 'jus naturae.' It is simply the 'naturalis potentia' of a certain number of men combined; 'multitudinis quae una veluti mente ducitur' (III. 2). Thus in the 'status civilis' the 'jus naturae' of the individual in one sense disappears, in another does not. It disappears in the sense that the individual member of the state has no mind to act or power to act against the mind of the state. Anyone who had such mind or power would not be a member of the state. He would be an enemy against whose 'potentia' the state must measure its own. On the other hand, 'in statu civili,' just as much as 'in statu naturali,' 'homo ex legibus suae naturae agit suaeque utilitati consulit' (3). He exercises his 'naturalis potentia' for some natural end of satisfying his wants and preserving his life as he did or would do outside the 'status civilis.' Only in the 'status civilis' these motives on the part of individuals so far coincide as to form the 'una veluti mens' which directs the 'multitudinis potentia.' According to this view, any member of a state will have just so much 'jus,' i.e. 'potentia,' against other members as the state allows him. If he can exercise any 'jus' or 'potentia' against another 'ex suo ingenio,' he is so far not a member of the state and the state is so far imperfect. If he could exercise any 'jus' or 'potentia' against the state itself, there would be no state, or, which is the same, the state would not be 'sui juris.'

[1] [Many of the Latin passages quoted in this chapter are translated in Bosanquet's Supplement. Tr]

33. Is there then no limit to the 'jus' which the state may exercise? With Spinoza this is equivalent to the question, is there no limit to the 'potentia' which it can exercise? As to this, he suggests three considerations.

(1). Its power is weakened by any action against right reason, because this must weaken the 'animorum unio' on which it is founded. 'Civitatis jus potentia multitudinis, quae una veluti mente ducitur, determinatur. At haec animorum unio concipi nulla ratione posset, nisi civitas id ipsum maxime intendat, quod sana ratio omnibus hominibus utile esse docet' (III. 7).

(2). The 'right' or 'power' of the state depends on its power of affecting the hopes and fears of individual citizens…. 'Subditi eatenus non sui, sed civitatis juris sint, quatenus ejus potentiam seu minas metuunt, vel quatenus statum civilem amant (per art. 10 praeced. cap.). Ex quo sequitur, quod ea omnia, ad quse agenda nemo praemiis aut minis induci potest, ad jura civitatis non pertineant' (III. 8). Whatever cannot be achieved by rewards and threats, is beyond the power and therefore beyond the 'right' of the state. Examples are given in the same section.

(3). 'Ad civitatis jus ea minus pertinere, quae plurimi indignantur' (III. 9). Severities of a certain kind lead to conspiracies against the state, and thus weaken it. 'Sicut unusquisque civis sive homo in statu naturali, sic civitas eo minus sui juris est, quo majorem timendi causam habet.'

Just so far then as there are certain things which the state cannot do, or by doing which it lessens its power, so far there are things which it has no 'right' to do.

34. Spinoza proceeds to consider the relation of states or sovereign powers to each other. Here the principle is simple. They are to each other as individuals in the state of nature, except that they will not be subject to the same weaknesses. 'Nam quandoquidem (per art. 2 hujus cap.) jus summae potestatis nihil est praeter ipsum naturae jus, sequitur duo imperia ad invicem sese habere, ut duo homines in statu naturali, excepto hoc, quod civitas sibi cavere potest, ne ab alia opprimatur, quod homo in statu naturali non potest, nimirum qui quotidie somno, saepe morbo aut animi aegritudine, et tandem senectute gravatur, et prater haec aliis incommodis est obnoxius, a quibus civitas securam se reddere potest' (III. 11). In other words, '… duae civitates natura hostes sunt. Homines enim in statu naturali hostes sunt. Qui igitur jus naturae extra civitatem retinent, hostes manent' (III. 13). The 'jura belli' are simply the powers of any one state to attack or defend itself against another. The 'jura pacis,' on the other hand, do not appertain to any single state, but arise out of the agreement of two at least. They last as long as the agreement, the 'foedus,' lasts; and this lasts as long as the fear or hope, which led to its being made, continues to be shared by the states which made it. As soon as this ceases to be the case, the agreement is necessarily at an end, 'nec dici potest, quod dolo vel perfidia agat, propterea quod fidem solvit, simulatque metus vel spei causa sublata est, quia haec conditio unicuique contrahentium aequalis fuit, ut scilicet quae prima extra metum esse potest, sui juris esset, eoque ex sui animi sententia uteretur, et praeterea quia nemo in futurum contrahit nisi positis prsecedentibus circumstantiis' (III. 14).

35. It would seem to follow from the above that a state can do no wrong, in the sense that there are no rights that it can violate. The same principle is applicable to it as to the individual. 'In statu naturali non dari peccatum, vel si quis peccat, is sibi, non alteri peccat: … nihil absolute naturae jure prohibetur, nisi quod nemo potest' (II. 18). A state is to any other state, and to its subjects, as one individual to another 'in statu naturali.' A wrong, a 'peccatum,' consists in a violation by individuals of the 'commune decretum.' There can be no 'peccare' on the part of the 'commune decretum' itself. But 'non id omne, quod jure fieri dicimus, optime fieri affirmamus. Aliud namque est agrum jure colere, aliud agrum optime colere; aliud, inquam, est sese jure defendere, conservare, judicium ferre, &c, aliud sese optime defendere, conservare, atque optimum judicium ferre; et consequenter aliud est jure imperare et reipublicae curam habere, aliud optime imperare et rempublicam optime gubernare. Postquam itaque de jure cujuscumque civitatis in genere egimus, tempus est, ut de optimo cujuscumque imperii statu agamus' (V. 1). Hence a further consideration 'de optimo cujusque imperii statu.' This is guided by reference to the 'finis status civilis,' which is 'pax vitaeque securitas.' Accordingly that is the best government under which men live in harmony, and of which the rights are kept inviolate. Where this is not the case, the fault lies with the government, not with any 'subditorum malitia.' 'Homines enim civiles non nascuntur, sed fiunt. Hominum praeterea naturales affectus ubique iidem sunt' (V. 2).

The end is not fully attained where men are merely kept in order by fear. Such a state of things is not peace but merely absence of war. 'Pax enim non belli privatio, sed virtus est, quae ex animi fortitudine oritur;[1] est namque obsequium constans voluntas id exsequendi, quod ex communi civitatis decreto fieri debet' (V. 4).

The 'peace,' then, which it is the end of the state to obtain, consists in rational virtue; in a common mind, governed by desire on the part of each individual for perfection of being in himself and others. The harmony of life, too, which is another way of expressing its object, is to be understood in an equally high sense. The life spoken of is one 'quae maxime ratione, vera mentis virtute et vita, definitur.'

The 'imperium' which is to contribute to this end must clearly be one 'quod multitudo libera instituit, non autem id, quod in multitudinem jure belli acquiritur.' Between the two forms of 'imperium' there may be no essential difference in respect of the 'jus' which belongs to each, but there is the greatest in respect of the ends which they serve as well as in the means by which they have to be maintained (V. 6).

[1] For the definition of 'fortitudo,' see Ethics, III. 59, Schol. 'Omnes actiones quae sequuntur ex affectibus qui ad mentem referuntur, quatenus intelligit, ad fortitudinem refero, quam in animositatem et generositatem distinguo. Nam per animositatem intelligo cupiditatem, qua unusquisque conatur suum esse ex solo rationis dictamine conservare. Per generositatem … cupiditatem qua unusquisque ex solo rationis dictamine conatur reliquos homines juvare et sibi amicitia jungere.'

36. This conclusion of Spinoza's doctrine of the state does not seem really consistent with the beginning. At the outset, no motives are recognised in men but such as render them 'natura hostes.' From the operation of these motives the state is supposed to result. Each individual finds that the war of all against all is weakness for all. Consequently the desire on the part of each to strengthen himself, which is a form of the universal effort 'suum esse conservare,' leads to combination, it being discovered that 'homini nihil homine utilius' (Eth. IV. 18. Schol.). But we are expressly told that the civil state does not bring with it other motives than those operative 'in statu naturali.' 'Homo namque tam in statu naturali quam civili ex legibus suae naturae agit, suaeque utilitati consulit.' But then it appears that there supervenes or may supervene on such motives 'constans voluntas id exsequendi quod ex communi civitatis decreto fieri debet,' and that not of a kind which seeks to carry out the 'commune decretum' as a means of escaping pain or obtaining pleasure, for it is said to arise from the 'animi fortitudo' which rests on reason ('ad mentem refertur quatenus intelligit') and includes 'generositas' defined as above. It is also said that the true object of 'imperium' is 'vitam concorditer transigere' or 'vitam colere' in a sense of 'vita' in which it 'maxime ratione … definitur.' And as the 'imperium' established for this end is one which 'multitudo libera instituit,' it seems [1] to be implied that there is a desire for such an end on the part of the people. It is not explained how such desires should arise out of the conflict of 'naturales potentiae' or out of the impulses which render men 'natura hostes.' On the other hand, if the elements of them already exist in the impulses which lead to the formation of the 'status civilis,' the reasons for saying that men are 'natura hostes' disappear, and we get a different view of 'jus,' whether 'naturale' or 'civile,' from that which identifies it simply with 'potentia.' Some power of conceiving and being interested in a good as common, some identification of the 'esse' of others with the 'suum esse' which every man, as Spinoza says, seeks to preserve and promote, must be supposed in those who form the most primitive social combinations, if these are to issue in a state directed to such ends and maintained by such a 'constans voluntas' as Spinoza describes. And it is the interest of men in a common good, the desire on the part of each which he thinks of others as sharing, for a good which he conceives to be equally good for them, that transforms mere 'potentia' into what may fitly be called 'jus,' i.e. a power claiming recognition as exercised or capable of being exercised for the common good.

[1] Certainly this is so, if we apply to the 'libera multitudo' the definition of freedom applied to the 'liber homo.' 'Hominem eatenus liberum omnino voco, quatenus ratione ducitur, quia eatenus ex causis, quae per solam eius naturam possunt adaequate intelligi, ad agendum determinatur, tametsi ex iis necessario ad agendum determinetur. Nam libertas agendi necessitatem non tollit, sed ponit'(II. 11).

37. If this qualification of 'potentia' which alone renders it 'jus' had been apprehended by Spinoza, he would have been entitled to speak of a 'jus naturale' as preceding the 'jus civile,' i.e. of claims to the recognition of powers and the actual customary recognition of such, as exercised for a common good, preceding the establishment of any regular institutions or general laws for securing their exercise. As it is, the term 'jus naturale' is with him really unmeaning. If it means no more than 'potentia,' why call it 'jus'? 'Jus' might have a meaning distinct from that of 'potentia' in the sense of a power which a certain 'imperium' enables one man to exercise as against another. This is what Spinoza understands by 'jus civile.' But there is no need to qualify it as 'civile,' unless 'jus' may be employed with some other qualification and with a distinctive meaning. But the 'jus naturale,' as he understands it, has no meaning other than that of 'potentia,' and his theory as it stands would have been more clearly expressed if instead of 'jus naturale' and 'jus civile' he had spoken of 'potentia' and 'jus,' explaining that the latter was a power on the part of one man against others, maintained by means of an 'imperium' which itself results from a combination of 'powers.' He himself in one passage shows a consciousness of the impropriety of speaking of 'jus' except with reference to a community; 'jus naturae, quod humani generis proprium est, vix posse concipi, nisi ubi homines jura habent communia, qui simul terras, quas habitare et colere possunt, sibi vindicare, seseque munire, vimque omnem repellere et ex communi omnium sententia vivere possunt' (II. 15). He takes no notice, however, of any forms of community more primitive than that of the state. The division into the 'status naturalis' and the 'status civilis' he seems to treat as exhaustive, and the 'status naturalis' he regards, after the manner of his time, as one of pure individualism, of simple detachment of man from man, or of detachment only modified by conflict. From such a 'status naturalis,' lacking both the natural and the rational principles of social development (the natural principle, i.e. the interest in others arising primarily from family ties, and the rational principle, i.e. the power of conceiving a good consisting in the more perfect being of the individual and of those in whom he is interested), no process could be traced to the 'status civilis.' The two 'status' stand over against each other with an impassable gulf between. 'Homines civiles non nascuntur, sed fiunt.' They are so made, he seems to hold, by the action of the 'imperium' upon them. But how is the 'imperium' to be made? Men must first be, if not 'civiles,' yet something very different from what they are in the 'status naturalis,' between which and the 'status civilis' Spinoza recognises no middle term, before any 'imperium' which could render them 'civiles' could be possible.

38. The cardinal error of Spinoza's 'Politik' is the admission of the possibility of a right in the individual apart from life in society, apart from the recognition by members of a society of a correlative claim upon and duty to each other, as all interested in one and the same good. The error was the error of his time, but with Spinoza it was confirmed by his rejection of final causes. The true conception of 'right' depends on the conception of the individual as being what be really is in virtue of a function which he has to fulfil relatively to a certain end, that end being the common well-being of a society. A 'right' is an ideal attribute ('ideal' in the sense of not being sensibly verifiable, not reducible to any perceivable fact or facts) which the individual possesses so far as this function is in some measure freely fulfilled by him—i.e. fulfilled with reference to or for the sake of the end—and so far as the ability to fulfil it is secured to him through its being recognised by the society as properly belonging to him. The essence of right lies in its being not simply a power producing sensible effects, but a power relative to an insensible function and belonging to individuals only in so far as each recognises that function in himself and others. It is not in so far as I can do this or that, that I have a right to do this or that, but so far as I recognise myself and am recognised by others as able to do this or that for the sake of a common good, or so far as in the consciousness of myself and others I have a function relative to this end. Spinoza, however, objects to regard anything as determined by relation to a final cause. He was not disposed therefore to regard individuals as being what they are in virtue of functions relative to the life of society, still less as being what they are in virtue of the recognition by each of such functions in himself and others. He looked upon man, like everything else in nature, as determined by material and efficient causes, and as himself a material and efficient cause. But as such he has no 'rights' or 'duties,' but only 'powers.'

39. It was because Plato and Aristotle conceived the life of the πόλις [1] so clearly as the τέλος of the individual, relation to which makes him what he is—the relation in the case of the πολίτης proper being a conscious or recognised relation—that they laid the foundation for all true theory of 'rights.' It is true that they have not even a word for 'rights.' The claims which in modern times have been advanced on behalf of the individual against the state under the designation 'natural rights' are most alien from their way of thinking. But in saying that the πόλις was a 'natural' institution and that man was φύσει πολιτικός, Aristotle, according to the sense which he attached to πόλις, was asserting the doctrine of 'natural rights' in the only sense in which it is true. He regards the state (πόλις) as a society of which the life is maintained by what its members do for the sake of maintaining it, by functions consciously fulfilled with reference to that end, and which in that sense imposes duties; and at the same time as a society from which its members derive the ability, through education and protection, to fulfil their several functions, and which in that sense confers rights. It is thus that the πολίτης μετέχει τοῦ ἄρχειν καὶ τοῦ ἄρχεσθαι. Man, being φύσει πολίτης,—being already in respect of capacities and tendencies a member of such a society, existing only in κοινωνίαι which contain its elements,—has 'naturally' the correlative duties and rights which the state imposes and confers. Practically it is only the Greek man that Aristotle regards as φύσει πολίτης, but the Greek conception of citizenship once established was applicable to all men capable of a common interest. This way of conceiving the case, however, depends on the 'teleological' view of man and the forms of society in which he is found to live, i.e. on the view of men as being what they are in virtue of non-sensible functions, and of certain forms of life determined by relation to more perfect forms which they have the capacity or tendency to become.

[1] [Greek πόλις (polis) = city, τέλος (telos) = end or purpose, πολίτης (polites) = citizen, φύσει πολίτης or φύσει πολιτικός (physei polites or politikos) = social or a citizen by nature, πολίτης μετέχει τοῦ ἄρχειν καὶ τοῦ ἄρχεσθαι (polites metechei tou archein kai tou archesthai) = a citizen by turns rules and is ruled, κοινωνίαι (koinoniai) = associations. Tr]

40. Spinoza, like Bacon, found the assumption of ends which things were meant to fulfil in the way of accurate inquiry into what things are (materially) and do. He held Plato and Aristotle cheap as compared with Democritus and Epicurus (Epist. LX. 13). Accordingly he considers the individual apart from his vocation as a member of society, the state apart from its office as enabling the individual to fulfil that vocation. Each, so considered, is merely a vehicle of so much power (natural force). On the other hand, he recognises a difference between a higher and lower, a better and worse, state of civil society, and a possibility of seeking the better state because it is understood to be better. And this is to admit the possibility of the course of human affairs being affected by the conception of a final cause. It is characteristic of Spinoza that while he never departs from the principle 'homo naturae pars,' he ascribes to him the faculty of understanding the order of nature, and of conforming to it or obeying it in a new way on account of that understanding. In other words, he recognised the distinction called by Kant the distinction between determination according to law and determination according to the consciousness of law; though in his desire to assert the necessity of each kind of determination he tends to disguise the distinction and to ignore the fact that, if rational determination (or the determination by a conception of a law) is a part of nature, it is so in quite a different sense from determination merely according to laws of nature. As he puts it, the clear understanding that we are parts of nature, and of our position in the universe of things, will yield a new character. We shall only then desire what is ordained for us and shall find rest in the truth, in the knowledge of what is necessary. This he regards as the highest state of the individual, and the desire to attain it he evidently considers the supreme motive by which the individual should be governed. The analogue in political life to this highest state of the individual is the direction of the 'imperium' by a 'libera multitudo' to the attainment of 'pax vitaeque securitas' in the high sense which he attaches to those words in Tract. Pol. cap. V. [1]

[1] Cp. Eth. IV. Appendix, xxxii. 'Ea quae nobis eveniunt contra id, quod nostrae utilitatis ratio postulat, aequo animo feremus, si conscii simus nos functos nostro officio fuisse, et potentiam, quam habemus, non potuisse se eo usque extendere, ut eadem vitare possemus, nosque partem totius naturae esse, cujus ordinem sequimur. Quod si clare et distincte intelligamus, pars illa nostri, quae intelligentia definitur, hoc est, pars melior nostri, in eo plane acquiescet et in ea acquiescentia perseverare conabitur. Nam quatenus intelligimus, nihil appetere nisi id, quod necessarium est, nec absolute nisi in veris acquiescere possumus; adeoque quatenus haec recte intelligimus, eatenus conatus melioris partis nostri cum ordine totius naturae convenit.' Eth. IV. Preface … 'Per bonum … intelligam id, quod certo scimus medium esse, ut ad exemplar humanae naturae, quod nobis proponimus, magis magisque accedamus…. Deinde homines perfectiores aut imperfectiores dicemus, quatenus ad hoc idem exemplar magis aut minus accedunt.'

41. The conclusion, then, is that Spinoza did really, though not explicitly, believe in a final cause determining human life. That is to say, he held that the conception of an end consisting in the greater perfection of life on the part of the individual and the community might, and to some extent did, determine the life of the individual and the community. He would have said no doubt that this end, like every good, existed only in our consciousness; that it was 'nihil positivum in rebus in se consideratis' (Ethics, IV. Preface); but an existence of the end in human consciousness, determining human action, is a sufficiently real existence, without being 'positivum in rebus.' But he made the mistake of ignoring the more confused and mixed forms in which the conception of this end operates; of recognising it only in the forms of the philosophic 'amor Dei,' or in the wisdom of the exceptional citizen, whom alone he would admit 'ratione duci.' And in particular he failed to notice that it is the consciousness of such an end to which his powers may be directed, that constitutes the individual's claim to exercise them as rights, just as it is the recognition of them by a society as capable of such direction which renders them actually rights; in short that, just as according to him nothing is good or evil but thinking makes it so, so it is only thinking that makes a might a right,—a certain conception of the might as relative to a social good on the part at once of the person or persons exercising it, and of a society which it affects.

C. HOBBES.

42. All the more fruitful elements in Spinoza's political doctrine are lacking in that of Hobbes, but the principle of the two theories is very much the same. Each begins with the supposition of an existence of human individuals, unaffected by society, and each struggling for existence against the rest, so that men are 'natura hostes.' Each conceives 'jus naturale' as = 'potentia naturalis.' But Spinoza carries out this conception much more consistently. He does not consider that the natural right, which is might, ceases to exist or becomes anything else when a multitude combine their natural rights or mights in an 'imperium.' If the ostensible 'imperium' comes into collision with the powers of individuals, single or combined, among those who have hitherto been subject to it, and proves the weaker, it ipso facto ceases to be an 'imperium.' Not having superior power, it no longer has superior right to the 'subditi.' It is on this principle, as we have seen, that he deals with the question of limitations to the right of a sovereign. Its rights are limited because its powers are so. Exercised in certain ways and directions they defeat themselves. Thus as he puts it in Epist. L. (where he points out his difference from Hobbes), 'Supremo magistratui in qualibet urbe non plus in subditos juris, quam juxta mensuram potestatis, qua subditum superat, competere statuo.' Hobbes, on the other hand, supposes his sovereign power to have an absolute right to the submission of all its subjects, singly or collectively, irrespectively of the question of its actual power against them. This right he considers it to derive from a covenant by which individuals, weary of the state of war, have agreed to devolve their 'personae,' in the language of Roman law, upon some individual or collection of individuals, which is henceforward to represent them, and to be considered as acting with, their combined powers. This covenant being in the nature of the case irrevocable, the sovereign derives from it an indefeasible right to direct the actions of all members of the society over which it is sovereign.