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Liberty, Equality, Fraternity - Chapter 4 - Part 1


The Doctrine of Liberty in Its Application to Morals - part of Sir Stephen's classic antithesis to John Stuart Mills' On Liberty

Part 2 of this chapter


James Fitzjames Stephen

 Author Notes

Lawyer, professor and judge, principle draftee of the Criminal Code of Canada (1892), author of History of the Criminal Law (1883), Liberty, Equality, Fraternity (1873) and other works. The latter book has endured as the classic refutation of John Stuart Mills' On Liberty and the precepts of classical liberalism.

Book by James Fitzjames Stephen
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Liberty, Equality, Fraternity: And Three Brief Essays
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 Essay - 1/1/1873

So far I have considered the theoretical grounds of Mr. Mill's principle and its practical application to liberty of thought and discussion. I now proceed to consider its application to morals. It may be well to restate it for fear that I may appear to be arguing with an imaginary opponent. "The object of this essay is to assert one very simple principle as entitled to govern absolutely all the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection." A little further on we are told that "from the liberty of each individual follows the liberty within the same limits of combination among individuals--freedom to unite for any purpose not involving harm to others."

The following consequences would flow, legitimately from this principle. A number of persons form themselves into an association for the purpose of countenancing each other in the practice of seducing women, and giving the widest possible extension to the theory that adultery is a good thing. They carry out these objects by organizing a system for the publication and circulation of lascivious novels and pamphlets calculated to inflame the passions of the young and inexperienced. The law of England would treat this as a crime. It would call such books obscene libels, and a combination for such a purpose a conspiracy. Mr. Mill, apparently, would not only regard this as wrong, but he would regard it as an act of persecution if the newspapers were to excite public indignation against the parties concerned by language going one step beyond the calmest discussion of the expediency of such an "experiment in living." Such an association would be impossible in this country, because if the law of the land did not deal with it, lynch law infallibly would. This Mr. Mill ought in consistency to regard as a lamentable proof of our bigotry and want of acquaintance with the true principles of liberty.

The manner in which he discusses an illustration closely analogous to this, and in which he attempts to answer an objection which must suggest itself to every one, throws the strongest possible light on the value of his own theory. His illustration is as follows:- "Fornication must be tolerated and so must gambling; but should a person be free to be a pimp or to keep a gambling house?" He puts the arguments on each side without drawing any conclusion, and the strongest of them are as follows:

On the side of toleration it may be said that if the principles which we have hitherto defended are true, society has no business as society to decide anything to be wrong which concerns only the individual; that it cannot go beyond persuasion, and that one person should be as free to persuade as another to dissuade. In opposition to this it may be contended that, although the public or the State are not warranted in authoritatively deciding for purposes of repression or punishment that such or such conduct affecting only the interests of the individual is good or bad, they are fully justified in assuming, if they regard it as bad, that its being so or not is at least a disputable question; that this being supposed they cannot be acting wrongly in endeavouring to exclude the influence of solicitations which are not disinterested, of instigators who cannot possibly be impartial, who have a direct personal interest on one side, and that the side which the State believes to be wrong, and who confessedly promote it for personal objects only.

There is a kind of ingenuity which carries its own refutation on its face. How can the State or the public be competent to determine any question whatever if it is not competent to decide that gross vice is a bad thing? I do not think the State ought to stand bandying compliments with pimps. "Without offence to your better judgment, dear Sir, and without presuming to set up my opinion against yours, I beg to observe that I am entitled for certain purposes to treat the question whether your views of life are right as one which admits of two opinions. I am far from expressing absolute condemnation of an experiment in living from which I dissent (I am sure that mere dissent will not offend a person of your liberality of sentiment), but still I am compelled to observe that you are not altogether unbiassed by personal considerations in the choice of the course of life which you have adopted (no doubt for reasons which appear to you satisfactory, though they do not convince me). I venture, accordingly, though with the greatest deference, to call upon you not to exercise your profession; at least I am not indisposed to think that I may, upon full consideration, feel myself compelled to do so." My feeling is that if society gets its grip on the collar of such a fellow it should say to him, "You dirty rascal, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion about you should be printed by the lash on your bare back. That question will be determined without the smallest reference to your wishes or feelings; but as to the nature of my opinion about you, there can be no question at all."

Most people, I think, would feel that the latter form of address is at all events the more natural. Which is the more proper I shall try to show further on, but by way of preface it will be as well to quote the other passage from Mr. Mill to which I have referred. After setting forth his theory as to personal vices being left to take their own course, he proceeds as follows:

The distinction here pointed out between the part of a person's life which concerns only himself and that which concerns others many persons will refuse to admit. How (it may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself without mischief reaching at least to his near connections, and often far beyond them.

He proceeds to enforce this by highly appropriate illustrations, which I need not quote. Further on he quotes a passage from an advocate of the suppression of intemperance, of which the following is a sample:- "If anything invades my social rights, certainly the traffic in strong drink does. It invades my primary right of security by constantly creating and stimulating social disorder." Upon this Mr. Mill observes:

A theory of "social rights," the like of which probably never before found its way into distinct language, being nothing short of this, that it is the absolute social right of every individual that every other individual should act in every respect precisely as he ought, that whosoever fails thereof in the smallest violates my social right and entitles me to demand from the Legislature the removal of the grievance. So monstrous a principle is far more dangerous than any single violation of liberty. ... The doctrine ascribes to all mankind a vested interest in each other's moral, intellectual, and even physical perfection, to be defined by each according to his own standard.

At the risk of appearing paradoxical, I own that the theory which appears to Mr. Mill so monstrous appears to me defective only in its language about rights and legislation, upon which I shall have more to say hereafter. It is surely a simple matter of fact that every human creature is deeply interested not only in the conduct, but in the thoughts, feelings, and opinions of millions of persons who stand in no other assignable relation to him than that of being his fellow-creatures. A great writer who makes a mistake in his speculations may mislead multitudes whom he has never seen. The strong metaphor that we are all members one of another is little more than the expression of a fact. A man would no more be a man if he was alone in the world than a hand would be a hand without the rest of the body.

I will now turn to the manner in which Mr. Mill deals with the objection just stated, and I must observe by the way that nothing proves his candour and honesty so clearly as the force with which he states objections to which he has no, or very weak, answers to make. His answer is twofold. He first admits that where "by conduct of this sort" (i.e. self-regarding vices) "a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. If, for example, a man through intemperance becomes unable to pay is debts, ... he is, deservedly reprobated, and might be justly punished, but it is for the breach of duty ... to his creditors, not for his extravagance." A party of people get drunk together at a public-house. Public opinion ought to stigmatize those only who could not afford it. The rest are "trying an experiment in living" which happens to suit their taste, and no one else has anything to say to it.

So far Mr. Mill's plea is a qualified admission. He admits that when one man's misconduct injures other definite persons in a definite way he may be punished. "But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself, the inconvenience is one which society can afford to bear for the sake of the greater good of human freedom." It is natural to ask why? especially as the question is whether "human freedom," understood as Mr. Mill understands it, is good or bad? The answer to the inquiry is twofold. First, "Society has had absolute power over all the early portion of their existence. It has had the whole period of childhood and nonage in which to try whether it could make them capable of rational conduct in life." The existing generation being itself imperfect cannot indeed make its pupils "perfectly wise and good," but it is well able to make the rising generation as a whole as good as and a little better than itself. "If society lets any considerable number of its members grow up as mere children incapable of being acted upon by rational considerations of distant motives, society has itself to blame for the consequences." Secondly, by issuing commands to grown-up people it will make people rebel, and "the strongest of all the arguments against the interference of the public with purely personal conduct is that when it does interfere the odds are that it interferes wrongly and in the wrong place."

This is Mr. Mill's whole case, and it appears to me so weak that I fear that I may have misunderstood or understated it. If so, I have done so unconsciously. As it stands it seems to involve the following errors.

First, there is no principle on which the cases in which Mr. Mill admits the justice of legal punishment can be distinguished from those in which he denies it. The principle is that private vices which are injurious to others may justly be punished, if the injury be specific and the persons injured distinctly assignable, but not otherwise. If the question were as to the possibility in most cases of drawing an indictment against such persons I should agree with him. Criminal law is an extremely rough engine, and must be worked with great caution; but it is one thing to point out a practical difficulty which limits the application of a principle and quite another to refute the principle itself. Mr. Mill's proviso deserves attention in considering the question whether a given act should be punished by law, but he applies it to "the moral coercion of public opinion," as well as to legal coercion, and to this the practical difficulty which he points out does not apply. A set of young noblemen of great fortune and hereditary influence, the representatives of ancient names, the natural leaders of the society of large districts, pass their whole time and employ all their means in gross debauchery. Such people are far more injurious to society than common pickpockets, but Mr. Mill says that if any one having the opportunity of making them ashamed of themselves uses it in order to coerce them into decency, he "Sins against liberty, unless their example does assignable harm to specific people. It might be right to say, "You, the Duke of A, by extravagantly keeping four mistresses--to wit, B and C in London, and D and E in Paris--set an example which induced your friend F to elope with Mrs. G at -- on --, and you are a great blackguard for your pains, and all the more because you are a duke." It could never be right to say, "You, the Duke of A, are scandalously immoral and ought to be made to smart for it, though the law cannot touch you." The distinction is more likely to be overlooked than to be misunderstood.

Secondly, the arguments against legal interference in the cases not admitted to be properly subject to it are all open to obvious answers.

Mr. Mill says that if grown-up people are grossly vicious it is the fault of society, which therefore ought not to punish them.

This argument proves too much, for the same may be said with even greater force of gross crimes, and it is admitted that they may be punished.

It is illogical, for it does not follow that because society caused a fault it is not to punish it. A man who breaks his arm when he is drunk may have to have it cut off when he is sober.

It admits the whole principle of interference, for it assumes that the power of society over people in their minority is and ought to be absolute, and minority and majority are questions of degree, and the line which separates them is arbitrary.

Lastly, it proceeds upon an exaggerated estimate of the power of education. Society cannot make ilk purses out of sows' ears, and there are plenty of. ears in the world which no tanning can turn even into serviceable pigskin.

Mr. Mill's other arguments are, that compulsion in such cases will make people rebel, and, above all, that the moral persecutor himself may very probably be mistaken.

This is true and important, but it goes to show not that compulsion should not be used at all, but that its employment is a delicate operation.

The Brahmins, it is said, being impressed with the importance of cattle to agriculture, taught people to regard the bull as a holy beast. He must never be thwarted, even if he put his nose into a shop and ate the shopkeeper's grain. He must never be killed, even in mercy to himself. If he slips over a cliff and breaks his bones and the vultures are picking out his eyes and boring holes between his ribs, he must be left to die. In several Indian towns the British Government has sent half the holy bulls to Mahommedan butchers, and the other half to draw commissariat wagons. Many matters go better in consequence of this arrangement, and agriculture in particular goes no worse. Liberty is Mr. Mill's Brahminee bull.

I find it difficult to understand how Mr. Mill's doctrine about individual liberty is to be reconciled with another of his theories to which I shall have occasion to refer more fully farther on. This is the theory about justice which is put forward in his essay on Utilitarianism, After a long and interesting discussion of the different senses in which the word justice is used, he at last works out a conclusion which is expressed as follows:-"We, do not call anything wrong unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow-creatures; if not by opinion, by the reproaches of his own conscience. This seems the real turning point of the distinction between morality and simple expediency. It is part of the notion of duty in every one of its form that a person may rightfully be compelled to do it." (p 72.) In other passages he says, "The sentiment of justice in that one of its elements which consists of the desire to punish is thus, I conceive, the natural feeling of retaliation or vengeance rendered by intellect and sympathy applicable to those injuries, that is to those hurts, which wound us through or in common with society at large. This sentiment in itself has nothing moral in it; what is moral is the exclusive subordination of it to the social sympathies, so as to wait on and obey their call. For the natural feeling tends to make us resent indiscriminately whatever any one does that is disagreeable to us; but when moralized by the social feeling it only acts in the directions conformable to the general good."

The passages seem to me to affirm the very principles for which I have been contending, and to be totally inconsistent with the doctrine of the essay on Liberty. The first passage involves the following consequence:- Persons who call debauchery wrong mean to imply that debauched persons ought to be punished either by public opinion or by their own consciences. The second passage involves the following consequence:- The sentiment of justice when moralized by the social feeling is the feeling of vengeance against a debauched person acting in a direction conformable to the general good--that is to say, acting in the direction of restraining him from following his vicious habits, which set a bad example to people at large. I do not know how it is possible to express in a more emphatic way the doctrine that public opinion ought to put a restraint upon vice, not to such an extent merely as is necessary for definite self-protection, but generally on the ground that vice is a bad thing from which men ought by appropriate means to restrain each other.

It may perhaps be replied that this is small criticism, and that Mr. Mill might answer it conclusively by striking out two or three lines of his essay on Liberty, and by admitting that its doctrine is somewhat too widely expressed. I do not think that is the case. If the expressions in question were withdrawn from the essay on Liberty, the whole theory would fall to the ground. Mr. Mill's writings form chains of thought from which no link can be withdrawn without destroying the value of the chain. Erase the few lines in question from the essay on Liberty and what remains is a commonplace hardly worth recording. The doctrine of the book would in that case be as follows:-Men are not justified in imposing the restraint of criminal law on each other's conduct except for the purpose of self-protection, but they are justified in restraining each other's conduct by the action of public opinion, not only for the purpose of self-protection, but for the common good, including the good of the persons so restrained, Now, this doctrine would be quite a different thing from the one for which Mr. Mill contends. I do not think it would be correct, but it would be hardly worth discussing. It would not affect in practice the questions of liberty of opinion and discussion, The restraints of criminal law in these days are few, and most of them may be justified on any one of several grounds. Moreover, there are many reasons against extending the sphere of criminal law which are altogether independent of general considerations about liberty, as I shall show hereafter. Criminal law, in short, has found its level in this country, and, though in many respects of great importance, can hardly be regarded as imposing any restraint on decent people which is ever felt as such. To the great mass of mankind a law forbidding robbery is no more felt as a restraint than the necessity of wearing clothes is felt as a restraint. The only restraints under which any one will admit that he frets are the restraints of public opinion, the "social intolerance" of which Mr. Mill gives such a striking account. This is the practically important matter, this it is which formerly retarded (it does not at present very much retard) the expression of unusual opinions on religion, the adoption by women of practices unusual among women, the modification of existing notions as to ranks of society and the like. This, in a word, is the great engine by which the whole mass of beliefs, habits, and customs, which collectively constitute positive morality, are protected and sanctioned. The very object of the whole doctrine of liberty as stated by Mr. Mill is to lay down a principle which condemns all such interference with any experiments in living which particular people may choose to make. It is that or it is nothing, for the wit of man cannot frame any distinction between the cases in which moral and physical coercion respectively are justifiable except distinctions which arise out of the nature of criminal law and the difficulty of putting it into operation, and this is a small and technical matter. The result is that Mr. Mill's doctrine that nothing but self-defence can justify the imposition of restraint on a man's self-regarding vices by public opinion is not merely essential to the coherence of his theory, but is by far the most important part of it in practice.

I now pass to what I have myself to offer on the subject of the relation of morals to legislation, and the extent to which people may and ought to be made virtuous by Act of Parliament, or by "the moral coercion of public opinion."

I have no simple principle to assert on this matter. I do not believe that the question admits of any solution so short and precise as that which Mr. Mill supplies. I think, however, that the points relevant to its solution may be classified, and its discussion simplified by the arrangement suggested in previous chapters--namely, by considering whether the object for which the compulsion is employed is good? whether the compulsion employed is likely to be effective? and whether it will be effective at a reasonable expense?

The object is to make people better than they would be without compulsion. This statement is so very general that it can scarcely be understood without some preliminary observations as to the general position of morality in human affairs, and the manner in which it is produced and acted upon.

Men are so closely connected together that it is quite impossible to say how far the influence of acts apparently of the most personal character may extend. The sentiments of the founder of a great religion, the reflections of a great philosopher, the calculations of a great general may affect the form of the mould in which the lives, thoughts, and feelings of hundreds of millions of men may be cast. The effect of Henry VIII's personal feelings on the English Reformation is only a single illustration which happens to have come to light of the operations of a principle which usually works in secret. There are events in every man's life which might easily have been otherwise, but which give their whole colour to it. A happy marriage, which might have been prevented by any one of numberless accidents, will lead a man to take a cheerful view of life. Some secret stab in the affections, of which two or three people only are aware, may convert a man who would otherwise have been satisfied and amiable into a stoic, a sour fanatic, or a rebel against society, as the case may be. If Dante had been personally happy, or Shakespeare personally wretched, if Byron had married Miss Chaworth, if Voltaire had met with no personal ill-usage, their literary influence would have been very different. The result is that we can assign no limits at all to the importance to each other of men's acts and thoughts. Still less can we assign limits to that indefinable influence which they exercise over each other by their very existence, by the fact of their presence, by the spirit which shines through their looks and gestures, to say nothing of their words and thoughts. If the inhabitants of the earth were all perfectly healthy and robust in mind and body, if there were not too many of them, if they rose rapidly to maturity and died before they began to lose their faculties, each man's happiness would be increased not only by the difference between his present condition and the condition in which he individually would then be placed, but by the difference between the position of a strong and healthy man living in a strong and healthy world and the same man living in a sickly world. It is easy to ride to death the analogy between health and disease and virtue and vice. They differ in several essential respects, but they resemble each other in several leading points. Vice is as infectious as disease, and happily virtue is infectious, though health is not. Both vice and virtue are transmissible, and, to a considerable extent, hereditary. Virtue and vice resemble health and disease in being dependent upon broad general causes which, though always present, and capable of being greatly modified by human efforts, do not always force themselves on our attention. Good air, clean water, and good food are now coming to be recognized as the great conditions of health. The maintenance of a high moral standard, the admiration and honour of virtue and the condemnation of vice, what is called in a school or a regiment a good moral tone, is the great condition of virtue. When soldiers speak of an army which is thoroughly frightened as I demoralized," they use an expression which by its significance atones for its politeness.

Besides this, we must recollect that the words virtue and vice, and their equivalents, have different meanings in different parts of the world and in different ages. I shall have occasion to speak elsewhere of Mr. Mill's ethical opinions more fully, and to say how far I agree with him and how far I disagree on several points. For the present, it is enough to say that I agree with him in taking its tendency to produce happiness as the test of the moral quality of an action, but this is subject to several important qualifications, of which I may mention one by way of illustration. Different people form very different ideals of happiness. The ideals of different nations, ages, and classes differ as much as the ideals of different individuals. The Christian ideal is not the Roman ideal, the Roman Catholic ideal is not the Protestant ideal, nor is the ideal of a lay Roman Catholic the same as that of a devotee. Compare the morals of Corneille, for instance, with the morals of Port Royal, or the morals of Port Royal with those of the Jesuits. They differ like the oak, the elm, and the larch. Each has a trunk and leaves and branches and roots, and whatever belongs to a tree: but the roots, the bark, the grain of the wood, the shape of the leaves, and the branches differ in every particular.

Not only are the varieties of morality innumerable, but some of them are conflicting with each other. If a Mahommedan, for instance, is fully to realize his ideal, to carry out into actual fact his experiment of living, he must be one of a ruling race which has trodden the enemies of Islam under their feet, and has forced them to choose between the tribute and the sword. He must be able to put in force the law of the Koran both as to the faithful and as to unbelievers. In short, he must conquer. Englishmen come into a country where Mahommedans had more or less realized their ideal, and proceed to govern it with the most unfeigned belief in the order of ideas of which liberty is the motto. After a time they find that to govern without any principles at all is impossible, though they think it would be very pleasant, and they are thus practically forced to choose between governing as Englishmen and governing as Mahommedans. They govern as Englishmen accordingly. To suppose that this process does not in fact displace and tend to subvert Mahommedan ideas is absurd. It is a mere shrinking from unpleasant facts.

This is only one illustration of the general truth that the intimate sympathy and innumerable bonds of all kinds by which men are united, and the differences of character and opinions by which they are distinguished, produce and must for ever produce continual struggles between them. They are like a pack of hounds all coupled together and all wanting to go different ways. Mr. Mill would like each to take his own way. The advice is most attractive, and so long as the differences are not very apparent it may appear to be taken, but all the voting in the world will not get the couples off, or prevent the stronger dogs from having their own way in the long run and making the others follow them. We are thus brought to the conclusion that in morals as well as in religion there is and must be conflict between men. The good man and the bad man whose goodness and badness are of different patterns, are really opposed to each other. There is a real, essential, and eternal conflict between them.

At first sight it may appear as if this was a cynical paradox, but attention to another doctrine closely connected with it will show that it is far less formidable than it appears to be at first sight. The influences which tend to unite men and which give them an interest in each other's welfare are both more numerous and more powerful than those which throw them into collision. The effect of this is not to prevent collisions, but to surround them with acts of friendship and goodwill which confine them within limits and prevent people from going to extremities. The degree to which a man feels these conflicting relations and practically reconciles them in his conduct is not at all a bad measure of the depth, the sensibility, and the vigour of his character. The "play of contradictory sentiments gives most of its interest to tragedy, and the conflict itself is the tragedy of life. Take as one instance out of a million the Cid's soliloquy on the alternative in which he is placed between allowing the outrage offered to his own father to go unpunished, and punishing it by killing the father of his mistress--

Cher et cruel espoir d'une Ame genereuse

Mais ensemble amoureux,

Digne ennemi de mon plus grand bonheur;

Fer, qui cause ma peine,

M'es-tu donne pour venger mon honneur

M'es-tu donne pour perdre Chimene?

This is a single illustration of the attitude of all mankind to each other. Complete moral tolerance is possible only when men have become completely indifferent to each other--that is to say, when society is at an end. If, on the other hand, every struggle is treated as a war of extermination, society will come to an end in a shorter and more exciting manner, but not more decisively.

A healthy state of things will be a compromise between the two. There are innumerable differences which obviously add to the interest of life, and without which it would be unendurably dull. Again, there are differences which can neither be left unsettled nor be settled without a struggle, and a real one, but in regard to which the struggle is rather between inconsistent forms of good than between good and evil. In cases of this sort no one need see an occasion for anything more than a good-tempered trial of strength and skill, except those narrow minded fanatics whose minds are incapable of taking in more than one idea at a time, or of having a taste for more things than one, which one thing is generally a trifle. There is no surer mark of a poor, contemptible, cowardly character than the inability to conduct disputes of this sort with fairness, temper, humanity, goodwill to antagonists, and a determination to accept a fair defeat in good part and to make the best of it. The peculiar merit of English people, a virtue which atones for so many vices that we are apt to misapprehend its nature and forget its weak sides, is our general practical recognition of this great truth. Every event of our lives, from schoolboy games up to the most important struggles of public life, even, as was shown in the 17th century, if they go the length of civil war, is a struggle in which it is considered a duty to do your best to win, to treat your opponents fairly, and to abide by the result in good faith when you lose, without resigning the hope of better luck next time. War there must be, life would be insupportable without it, but we can fight according to our national practice like men of honour and people who are friends at bottom, and without attaching an exaggerated value to the subject matter of our contention.

The real problem of liberty and tolerance is simply this: What is the object of contention worth? Is the case one--and no doubt such cases do occur--in which all must be done, dared, and endured that men can do, dare, or endure; or is it one in which we can honourably submit to defeat for the present subject to the chance of trying again? According to the answer given to this question the form of the struggle will range between internecine war and friendly argument.

These explanations enable me to restate without fear of misapprehension the object of morally intolerant legislation. It is to establish, to maintain, and to give power to that which the legislator regards as a good moral system or standard. For the reasons already assigned I think that this object is good if and in so far as the system so established and maintained is good. How far any particular system is good or not is a question which probably does not admit of any peremptory final decision; but I may observe that there are a considerable number of things which appear good and bad, though no doubt in different degrees, to all mankind. For the practical purpose of legislation refinements are of little importance. In any given age and nation virtue and vice have meanings which for that purpose are quite definite enough. In England at the present day many theories about morality are current, and speculative men differ about them widely, but they relate not so much to the question whether particular acts are right or wrong, as to the question of the precise meaning of the distinction, the manner in which the moral character of particular actions is to be decided, and the reasons for preferring right to wrong conduct. The result is that the object of promoting virtue and preventing vice must be admitted to be both a good one and one sufficiently intelligible for legislative purposes.

If this is so, the only remaining questions will be as to the efficiency of the means at the disposal of society for this purpose, and the cost of their application. Society has at its disposal two great instruments by which vice may be prevented and virtue promoted--namely, law and public opinion; and law is either criminal or civil. The use of each of these instruments is subject to certain limits and conditions, and the wisdom of attempting to make men good either by Act of Parliament or by the action of public opinion depends entirely upon the degree in which those limits and conditions are recognized and acted upon.

First, I will take the case of criminal law. What are the conditions under which and the limitations within which it can be applied with success to the object of making men better? In considering this question it must be borne in mind that criminal law is at once by far the most powerful and by far the roughest engine which society can use for any purpose. Its power is shown by the fact that it can and does render crime exceedingly difficult and dangerous. Indeed, in civilized society it absolutely prevents avowed open crime committed with the strong hand, except in cases where crime rises to the magnitude of civil war. Its roughness hardly needs illustration. It strikes so hard that it can be enforced only on the gravest occasions, and with every sort of precaution against abuse or mistake. Before an act can be treated as a crime, it ought to be capable of distinct definition and of specific proof, and it ought also to be of such a nature that it is worth while to prevent it at the risk of inflicting great damage, direct and indirect, upon those who commit it. These conditions are seldom, if ever, fulfilled by mere vices. It would obviously be impossible to indict a man for ingratitude or perfidy. Such charges are too vague for specific discussion and distinct proof on the one side, and disproof on the other. Moreover, the expense of the investigations necessary for the legal punishment of such conduct would be enormous. It would be necessary to go into an infinite number of delicate and subtle inquiries which would tear off all privacy from the lives of a large number of persons. These considerations are, I think, conclusive reasons against treating vice in general as a crime.

The excessive harshness of criminal law is also a circumstance which very greatly narrows the range of its application. It is the ratio ultima of the majority against persons whom its application assumes to have renounced the common bonds which connect men together. When a man is subjected to legal punishment, society appeals directly and exclusively to his fears. It renounces the attempt to work upon his affections or feelings. In other words, it puts itself into distinct, harsh, and undisguised opposition to his wishes; and the effect of this will be to make him rebel against the law. The violence of the rebellion will be measured partly by the violence of the passion the indulgence of which is forbidden, and partly by the degree to which the law can count upon an ally in the man's own conscience. A law which enters into a direct contest with a fierce imperious passion, which the person who feels it does not admit to be bad, and which is not directly injurious to others, will generally do more harm than good; and this is perhaps the principal reason why it is impossible to legislate directly against unchastity, unless it takes forms which every one regards as monstrous and horrible. The subject is not one for detailed discussion, but any one who will follow out the reflections which this hint suggests will find that they supply a striking illustration of the limits which the harshness of criminal law imposes upon its range.

If we now look at the different acts which satisfy the conditions specified, it will, I think, be found that criminal law in this country actually is applied to the suppression of vice and so to the promotion of virtue to a very considerable extent; and this I say is right.

The punishment of common crimes, the gross forms of force and fraud, is no doubt ambiguous. It may be justified on the principle of self-protection, and apart from any question as to their moral character. It is not, however, difficult to show that these acts have in fact been forbidden and subjected to punishment not only because they are dangerous to society, and so ought to be prevented, but also for the sake of gratifying the feeling of hatred--call it revenge, resentment, or what you will--which the contemplation of such conduct excites in healthily constituted minds. If this can be shown, it will follow that criminal law is in the nature of a persecution of the grosser forms of vice, and an emphatic assertion of the principle that the feeling of hatred and the desire of vengeance above-mentioned are important elements of human nature which ought in such cases to be satisfied in a regular public and legal manner.

The strongest of all proofs of this is to be found in the principles universally admitted and acted upon as regulating the amount of punishment. If vengeance affects, and ought to affect, the amount of punishment, every circumstance which aggravates or extenuates the wickedness of an act will operate in aggravation or diminution of punishment. If the object of legal punishment is simply the prevention of specific acts, this will not be the case. Circumstances which extenuate the wickedness of the crime will often operate in aggravation of punishment. If, as I maintain, both objects must be kept in view, such circumstances will operate in different ways according to the nature of the case.

A judge has before him two criminals, one of whom appears, from the circumstances of the case, to be ignorant and depraved, and to have given way to very strong temptation, under the influence of the other, who is a man of rank and education, and who committed the offence of which both are convicted under comparatively slight temptation. I will venture to say that if he made any difference between them at all every judge on the English bench would give the first man a lighter sentence than the second.

What should we think of such an address to the prisoners as this? You, A, are a most dangerous man. You are ignorant, you are depraved, and you are accordingly peculiarly liable to be led into crime by the solicitations or influence of people like your accomplice B. Such influences constitute to men like you a temptation practically all but irresistible. The class to which you belong is a large one, and is accessible only to the coarsest possible motives. For these reasons I must put into the opposite scale as heavy a weight as I can, and the sentence of the court upon you is that you be taken to the place from whence you came and from thence to a place of execution, and that there you be hanged by the neck till you are dead. As to you, B, you are undoubtedly an infamous wretch. Between you and your tool A there can, morally speaking, be no comparison at all. But I have nothing to do with that. You belong to a small and not a dangerous class. The temptation to which you gave way was slight, and the impression made upon me by your conduct is that you really did not care very much whether you committed this crime or not. From a moral point of view, this may perhaps increase your guilt; but it shows that the motive to be overcome is less powerful in your case than in A's. You belong, moreover, to a class, and occupy a position in society, in which exposure and loss of character are much dreaded. This you will have to undergo. Your case is a very odd one, and it is not likely that you will wish to commit such a crime again, or that others will follow your example. Upon the whole, I think that what has passed will deter others from such conduct as much as actual punishment. It is, however, necessary to keep a hold over you. You will therefore be discharged on your own recognizance to come up and receive judgment when called upon, and unless you conduct yourself better for the future, you will assuredly be so called upon, and if you do not appear, your recognizance will be inexorably forfeited.

Caricature apart, the logic of such a view is surely unimpeachable. If all that you want of criminal law is the prevention of crime by the direct fear of punishment, the fact that a temptation is strong is a reason why punishment should be severe. In some instances this actually is the case. It shows the reason why political crimes and offences against military discipline are punished so severely. But in most cases the strength of the temptation operates in mitigation of punishment, and the reason of this is that criminal law operates not merely by producing fear, but also indirectly, but very powerfully, by giving distinct shape to the feeling of anger, and a distinct satisfaction to the desire of vengeance which crime excites in a healthy mind.

Other illustrations of the fact that English criminal law does recognize morality are to be found in the fact that a considerable number of acts which need not be specified are treated as crimes merely because they are regarded as grossly immoral.

[Part 2 of this chapter]

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