sterile, and technical, while practice remains narrow, harsh, and also illiberal. Yet there is more cause for hope in that so much has been accomplished, than for despondency because mental power and service are still so limited and undeveloped. The intermixture and interaction of classes and nations are very recent. Hence the opportunities for an effective circulation of sympathetic ideas and of reasonable emotions have only newly come into existence. Education as a public interest and care, applicable to all individuals, is hardly more than a century old; while a conception of the richness and complexity of the ways in which it should touch any one individual is hardly half a century old. As society takes its educative functions more seriously and comprehensively into account, there is every promise of more rapid progress in the future than in the past. For education is most effective when dealing with the immature, those who have not yet acquired the hard and fixed directing forms of adult life; while, in order to be effectively employed, it must select and propagate that which is common and hence typical in the social values that form its resources, leaving the eccentric, the partial, and exclusive gradually to dwindle. Upon some generous souls of the eighteenth century there dawned the idea that the cause of the indefinite improvement of humanity and the cause of the little child are inseparably bound together.
LITERATURE Kant, _Philosophy of Law_, 1796 (trans. by Hastie, 1887); Fichte, _The Science of Rights_, 1798 (trans. by Kroeger, 1869); Rousseau, _Social Contract_, 1762 (trans. by Tozer, 1893); Bonar, _Philosophy and Political Economy_, 1893; Stephen, _Science of Ethics_, ch. iii. (on Social Motives); Caird, _Social Philosophy of Comte_, 1885; Sidgwick, _Practical Ethics_, 1898, Essay on Public Morality; Sidgwick, _Elements of Politics_, 1891, ch. iv. on Individualism, vi. on Contract, x. on Socialistic Interferences, xiii. on Law and Morality; Maine, _Ancient Law_, 1861, Pollock's ed., 1906, chs. iii. and iv. on law of nature and equity; Stephen, _Essays in Political and Moral Philosophy_, 1888; Rickaby, _Political and Moral Essays_, 1902; Hobhouse, _Morals in Evolution_, Vol. II., ch. vii. (on the general relation of the social and the moral). On the development of rights to life, limb, and freedom of movement, see Westermarck, chs. xiv.-xxii., and Sumner, _Folkways_, chs. vi., vii., and viii.; Hobhouse, Vol. I., ch. vii. (on slavery); Spencer, _Ethics_, Vol. II., Part IV. For charity, see Loch on Charity and Charities, _Encyclopædia Britannica_; Uhlhorn, _Christian Charity in the Ancient Church_; L'Allemand, _Histoire de la Charité_; Nicholl, _History of the English Poor Law_, 2 vols., 1898.
FOOTNOTES: [196] Vol. I., pp. 367-368, italics not in original.
[197] P. 262 of _Prolegomena to Ethics_; see chs. iii. and iv. of Book III.
[198] Alexander, _Moral Order and Progress_, pp. 384-898.
[199] This does not of course exclude change and reform. It means that, so far as a society is organized, these changes themselves occur in regular and authorized ways.
[200] It is stated, upon good authority, that a street railway system in a large American city declined to adopt an improved fender, which made it practically impossible to kill persons, because the annual cost would be $5,000 more than the existing expense for damages. This same system declined to adopt improved brakes which would reduce accidents to life and limb; and it was discovered that one of its directors was largely interested in the manufacture of the old brakes.
[201] Said Emerson: "If a man is sick, is unable, is mean-spirited and odious, it is because there is so much of his nature which is unlawfully withholden from him."
[202] Recent suppression by the police in the larger American cities of public meetings called to discuss unemployment or other matters deemed by some dangerous to vested interests, shows that the value of free speech as a "safety-valve" has not even yet been thoroughly learned. It also shows how the victories of freedom in the past have to be fought and won over again under new conditions, if they are to be kept alive.
CHAPTER XXI CIVIL SOCIETY AND THE POLITICAL STATE We have been considering responsible freedom as it centers in and affects individuals in their distinctive capacities. It implies a public order which guarantees, defines, and enforces rights and obligations.
This public order has a twofold relation to rights and duties: (1) As the social counterpart of their exercise by individuals, it constitutes _Civil Society_. It represents those forms of associated life which are orderly and authorized, because constituted by individuals in the exercise of their rights, together with those special forms which protect and insure them. Families, clubs, guilds, unions, corporations come under the first head; courts and civil administrative bodies, like public railway and insurance commissions, etc., come under the second.
(2) The public order also fixes the fundamental terms and conditions on which at any given time rights are exercised and remedies secured; it is organized for the purpose of defining the basic methods of exercising the activities of its constituent elements, individual and corporate. In this aspect it is the _State_.
§ 1. CIVIL RIGHTS AND OBLIGATIONS Every act brings the agent who performs it into association with others, whether he so intends or not. His act takes effect in an organized world of action; in social arrangement and institutions. So far as such combinations of individuals are recurrent or stable, their nature and operations are definitely formulated and definitely enforceable.
Partnerships, clubs, corporations, guilds, families are such stable unions, with their definite spheres of action. Buying and selling, teaching and learning, producing and consuming, are recurrent activities whose legitimate methods get prescribed. These specific provinces and methods of action are defined in Civil Rights. They express the guaranteed and regular ways in which an individual, through action, voluntarily enters into association or combination with others for the sake of a common end. They differ from political rights and obligations in that the latter concern modes of social organization which are so fundamental that they are not left to the voluntary choice and purpose of an individual. As a social being, he must have political relationships, must be subject to law, pay taxes, etc.
=1. Contract Rights.=--Modes of association are so numerous and variable that we can only select those aspects of civil rights which are morally most significant. We shall discriminate them according as they have to do (1) with the more temporary and casual combinations of individuals, for limited and explicit purposes; and (2) with more permanent, inclusive, and hence less definable ends; and (3) with the special institutions which exist for guaranteeing individuals the enjoyment of their rights and providing remedies if these are infringed upon. (1) Contract rights. Rights of the first type are rights resulting from express or implied agreements of certain agents to do or refrain from doing specific acts, involving exchange of services or goods to the mutual benefit of both parties in the transaction. Every bargain entered into, every loaf of bread one buys or paper of pins one sells, involves an implied and explicit contract. A genuinely free agreement or contract means (i.) that each party to the transaction secures the benefit he wants; (ii.) that the two parties are brought into coöperative or mutually helpful relations; and that (iii.) the vast, vague, complex business of conducting social life is broken up into a multitude of specific acts to be performed and of specific goods to be delivered, at definite times and definite places. Hence it is hardly surprising that one school of social moralists has found in the conception of free contract its social ideal. Every individual concerned assumes obligations which it is to his interest to perform so that the performance is voluntary, not coerced; while, at the same time, some other person is engaged to serve him in some way. The limitations of the contract idea will concern us later.
=2. The Permanent Voluntary Associations.=--Partnerships, limited liability corporations, guilds, trades unions, churches, schools, clubs, are more permanent and comprehensive associations, involving more far-reaching rights and obligations. Societies organized for conversation and sociability or conviviality, "corporations not for profit," but for mutual enjoyment or for benevolent ends, come under the same head. Most significant are the associations which, while entered only voluntarily and having therefore a basis in contract, are for generic ends. Thus they are permanent, and cover much more than can be written in the contract. Marriage, in modern society, is entered into by contract; but married life is not narrowed to the exchange of specific services at specific times. It is a union for mutual economic and spiritual goods which are coextensive with all the interests of the parties. In its connection with the generation and rearing of children, it is a fundamental means of guarding all social interests and of directing their progress. Schools, colleges, churches, federations of labor, organizations of employers, and of both together, represent other forms of permanent voluntary organizations which may have the most far-reaching influence both upon those directly concerned and upon society at large.
=3. Right to Use of Courts.=--All civil rights get their final application and test in the right to have conflicting rights defined and infringed rights remedied by appeal to a public authority having general and final jurisdiction. "The right to sue and be sued" may seem too legal and external a matter to be worthy of much note in an ethical treatise; but it represents the culmination of an age-long experimentation with the problem of reconciling individual freedom and public order. No civil right is effective unless it carries with it a statement of a method of enforcement and, if necessary, of redress and remedy. Otherwise it is a mere name. Moreover, conflicts of civil rights are bound to occur even when there is good faith on the part of all concerned, just because new situations arise. Unless there is a way of defining the respective rights of each party in the new situation, each will arbitrarily and yet in good faith insist upon asserting his rights on the old basis: private war results. A new order is not achieved and the one already attained is threatened or disrupted. The value of rights to the use of courts resides, then, to a comparatively small degree, in the specific cases of deliberate wrong which are settled. What is more important is that men get instruction as to the proper scope and limits of their activities, through the provision of an effective mechanism for amicable settlement of disputes in those cases in which rights are vague and ambiguous because the situations are novel.
=Classes of Wrongs and Remedies.=--Infringements upon rights, such as murder, theft, arson, forgery, imply a character which is distinctly anti-social in its bent. The wrong, although done to one, is an expression of a disposition which is dangerous to all. Such a wrong is a crime; it is a matter for the direct jurisdiction of public authority.
It is the business of all to coöperate in giving evidence, and it may render one a criminal accomplice to conceal or suppress evidence, just as it is "compounding a felony" for the wronged individual to settle the wrong done him by arranging privately for compensation. The penalty in such cases is generally personal; imprisonment or at least a heavy fine.
The violation may, however, be of the nature of a wrong or "tort," rather than of a crime; it may indicate a disposition indifferent to social interests or neglectful of them rather than one actively hostile to them. Such acts as libels, trespasses upon the land of another, are illustrations. In such cases, the machinery of justice is put in motion by the injured individual, not by the commonwealth. This does not mean that society as a whole has no interest in the matter; but that under certain circumstances encouraging individuals to look out for their own rights and wrongs is socially more important than getting certain wrongs remedied irrespective of whether men stand up for their own rights or not. Then again, there are civil disputes which indicate neither a criminal nor a harmful disposition, but rather uncertainty as to what the law really is, leading to disputes about rights--interpretations of a contract, express or implied. Here the interest of society is to provide a method of settlement which will hinder the growth of ill will and private retaliation; and which also will provide precedents and principles that will lessen uncertainty and conflict in like cases in the future.
Peace and tranquillity are not merely the absence of open friction and disorder. They mean specific, easily-known, and generally recognized principles which determine the province and limits of the legitimate activity of every person. Publicity, standards, rules of procedure, remedies acknowledged in common, are their essence. _Res publica_, the common concern, remains vague and latent till defined by impartial, disinterested social organs. Then it is expressed in regular and guaranteed modes of activity. In the pregnant phrase of Aristotle, the administration of justice is also its determination: that is, its discovery and promulgation.
§ 2. DEVELOPMENT OF CIVIL RIGHTS =Contrast of Primitive with Present Justice.=--The significance of the accomplishments and the defects of the present administration of law may be brought out by a sketch of its contrast with primitive methods. In savage and barbarian society, on account of the solidarity of the kin-group, any member of the group is likely to be attacked for the offense of any other (see p. 28). He may not have participated in the act, or have had complicity in planning it. His guilt is that the same blood runs in his veins.[204] The punitive attack, moreover, is made directly and promiscuously by the injured man and by his blood-relatives; it is made in the heat of passion or in the vengeance of stealth as custom may decree. Says Hearn, the state "did not interfere in the private quarrels of its citizens. Every man took care of his own property and his own household, and every hand guarded its own head. If any injury were done to any person, he retaliated, or made reprisals, or otherwise sought redress, as custom prescribed."[205] The reprisal may itself have called for another, and the blood-feud was on.
In any case, the state of affairs was one literally, not metaphorically, described as "private war."
=Changes Now Effected.=--This state of affairs has been superseded by one in which a third, a public and impartial authority (1) takes cognizance of offenses against another individual as offenses against the commonwealth; (2) apprehends the supposed offender; (3) determines and applies an objective standard of judgment, the same for all, the law; (4) tries the supposed offender according to rules of procedure, including rules of evidence or proof, which are also publicly promulgated; and (5) takes upon itself the punishment of the offender, if found guilty. The history of this change, important and interesting as it is, does not belong here. We are concerned here only with the relation of public authority, public law, and public activity to the development of the freedom of the individual on one side and of his responsibility on the other.[206] We shall point out in a number of particulars that the evolution of freedom and responsibility in individuals has coincided with the evolution of a public and impartial authority.
=1. Good and Evil as Quasi-Physical.=--There are two alternatives in the judgment of good and evil. (1) They may be regarded as having _moral_ significance, that is, as having a voluntary basis and origin. (2) Or they may be considered as substantial properties of things, as a sort of essence diffused through them, or as a kind of force resident in them, in virtue of which persons and things are noxious or helpful, malevolent or kindly. Savage tribes, for instance, cannot conceive either sickness or death as natural evils; they are attributed to the malicious magic of an enemy. Similarly the evil which follows from the acts of a man is treated as a sign of some metaphysical tendency inherent in him. Some men bring bad luck upon everything and everybody they have anything to do with. A curse is on their doings. No distinction is made between such evils and those which flow from intention and character. The notion of the moral or voluntary nature of good and evil hardly obtains. The quasi-physical view, bordering upon the magical, prevails. The result is that evil is thought of as a contagious matter, transmitted from generation to generation, from class or person to class or person; and as something to be got rid of, if at all, by devices which are equally physical. Natural evils, plagues, defeats, earthquakes, etc., _are treated as quasi-moral, while moral evils are treated as more than half physical_. Sins are infectious diseases, and natural diseases are malicious interferences of a human or divine enemy. Morals are materialized, and nature is moralized or demoralized.[207] Now it is hardly necessary to point out the effect of such conceptions in restricting the freedom and responsibility of the individual person.
Man is hemmed in as to thought and action on all sides by all kinds of mysterious forces working in unforeseeable ways. This is true enough in his best estate. When to this limitation is added a direction of energy into magical channels, away from those controllable sources of evil which reside in human disposition, the amount of effective freedom possible is slight. This same misplacing of liability holds men accountable for acts they have not committed, because some magic tendency for evil is imputed to them. Famine, pestilence, defeat in war are evils to be remedied by sacrifice of goods or persons or by ritualistic ceremonies; while the remediable causes of harm in human ignorance and negligence go without attention.
=2. Accident and Intention.=--Under such circumstances, little distinction can be made between the good and evil which an individual _meant_ to do and that which he _happened_ to do. The working presumption of society, up to a comparatively late stage of its history, was that every harmful consequence is an evidence of evil disposition in those who were in any way concerned. This limitation of freedom was accompanied by a counterpart limitation of responsibility. Where no harm actually resulted, there was thought to be no harmful intent. Animals and even inanimate objects which do injury are baleful things and come under disapprobation and penalty. Even in civilized Athens there was a survival of the practice of holding inanimate things liable. If a tree fell on a man and killed him, the tree was to be brought to trial, and after condemnation cast beyond the civic borders, i.e., outlawed.[208] Anyhow, the owner of an offending article was almost always penalized.
Westermarck,[209] with reference to the guilt of animals, cites an instance, dated in 1457, "when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child; the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother." When sticks, stones, and animals are held accountable for evil results, there is little chance of discriminating intent and accident or misadventure in the case of personal agents. "The devil himself knoweth not the intent, the 'thought' of man" was the mediæval maxim; all that can be certain is that harm has come and the one who caused it must suffer; or else no overt harm has come and no one is to blame.[210] Harm has been done and any one concerned, even remotely, in the injurious situation, is _ex officio_ guilty; it will not do to take chances. The remoteness of an implication which may involve liability is seen in the condition of English law in the thirteenth century: "At your request I accompany you when you are about your own affairs: my enemies fall upon and kill me: you must pay for my death. You take me to see a wild-beast show, or that interesting spectacle a madman: beast or madman kills me; you must pay. You hang up your sword; some one else knocks it down so that it cuts me; you must pay."[211] Only gradually did intent clearly evolve as the central element in an act, and thus lead to the idea of a voluntary or free act.
That the limitation upon the side of responsibility was equally great is obvious. If a man is held liable for what he did not and could not foresee or desire, there is no ground for his _holding himself_ responsible for anticipating the consequences of his acts, and forming his plans according as he foresees. This comes out clearly in the obverse of what has just been said. If no harm results from a willful attempt to do evil, the individual is not blamed. He goes scot free. "An attempt to commit a crime is no crime."[212] =3. Character and Circumstances.=--Even in law, to say nothing of personal moral judgments, we now almost as a matter of course take into account, in judging an agent's intent, both circumstances, and character as inferred from past behavior. We extend our view of consequences, taking into account in judging the moral quality of a particular deed, consequences its doer is _habitually_ found to effect. We blame the individual less for a deed if we find it contrary to his habitual course. We blame him more, if we find he has a character given to that sort of thing. We take into account, in short, the permanent attitude and disposition of the agent. We also discriminate the conditions and consequences of a deed much more carefully. Self-defense, protection of others or of property, come in as "extenuating circumstances"; the degree of provocation, the presence of immediate impulsive fear or anger, as distinct from a definitely formed, long-cherished idea, are considered. The questions of first or of repeated offense, of prior criminality or good behavior, enter in. Questions of heredity, of early environment, of early education and opportunity are being brought to-day into account.
We are still very backward in this respect, both in personal and in public morals; in private judgment and in legal procedure and penalty.
Only recently have we, for example, begun to treat juvenile delinquents in special ways; and the effort to carry appropriate methods further meets with strong opposition and the even stronger inertia of indifference. It is regarded by many good people as lowering the bars of responsibility to consider early training and opportunity, just as in its day it was so regarded to plead absence of intent in cases where evil had actually resulted. It is not "safe" to let any one off from the rigor of the law. The serious barrier, now as earlier, is upon the scientific or intellectual side. There was a time when it did not seem feasible to pass upon intent; it was hidden, known only to God. But we have now devised ways, adequate in principle, though faulty in detail, to judge immediate intent; similarly, with the growth of anthropology, psychology, statistics, and the resources of publicity in social science, we shall in time find it possible to consider the effects of heredity, early environment, and training upon character and so upon intent. We shall then regard present methods of judging intent to be almost as barbarous as we now consider the earlier disregard of accident and provocation. Above all we shall learn that increased, not relaxed responsibility, comes with every increase of discrimination of causes lying in character and conditions.[213] =4. Intellectual Incapacity and Thoughtlessness.=--With increasing recognition of character as the crucial element in voluntary action, we now take into account such matters as age, idiocy, and insanity as factors of judgment. But this also has been a slow growth. If we take the one question of insanity, for example, in 1724 exculpation for harm resulting from a madman's acts required that the person excused "be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast." At the beginning of the nineteenth century, the excuse was no longer that of being such a raving lunatic as is here implied; but of knowing right and wrong from each other _in the abstract_. By a celebrated case in 1843, the rule was changed, in English law, to knowledge of the difference between right and wrong in the particular case. Further advance waits upon progress of science which will make it more possible to judge the specific mental condition of the person acting; and thus do away with the abuses of the present system which tend, on the one hand, to encourage the pleading of insanity where none may exist; and, on the other hand (by a rigid application of a technical rule), to condemn persons really irresponsible.[214] Popular judgment still inclines to impute clear and definite intention on the basis of results; and to ignore conditions of intellectual confusion and bewilderment, and justifies itself in its course on the ground that such is the only "safe" course.[215] =Responsibility for Thoughtlessness.=--But the release from responsibility for deeds in which the doer is intellectually incapacitated, is met on the other side by holding individuals of normal mental constitution responsible for some consequences which were not thought of at all. We even hold men accountable for _not_ thinking to do certain acts. The former are acts of heedlessness or carelessness, as when a mason on top of a building throws rubbish on to a street below which injures some one, without any thought on his part of this result, much less any deliberate desire to effect it. The latter are acts of negligence, as when, say, an engineer fails to note a certain signal. In such cases even when no harm results, we now hold the agent morally culpable. Similarly we blame children for _not_ thinking of the consequences of their acts; we blame them for _not_ thinking to do certain things at a certain time--to come home when told, and so on.
This is not merely a matter of judgment by others. The more conscientious a person is, the more occasions he finds to judge _himself_ with respect to results which _happened because he did not think or deliberate or foresee at all_--provided he has reason to believe he would have thought of the harmful results if he had been of a different character. Because we were absorbed in something else we did not think, and while, in the abstract, this something else may have been all right, in the concrete it may be proof of an unworthy character. The very fact that we permitted ourselves to become so absorbed that the thought of an engagement, or of an opportunity to help some friend whom we knew to be in need, did not occur to us, is evidence of a selfish, i.e., inconsiderate, character.
The case seems paradoxical and is crucial. Others hold us responsible because we _were_ irresponsible in action and _in order_ that we may _become_ responsible. We blame ourselves precisely because we discover that an unconscious preference for a private or exclusive good led us to be careless of the good of others. The effect (if the regret is genuine, not simulated) is to develop a habit of greater thoughtfulness in the future. Less and less do men accept for others or for themselves ignorance as an excuse for bad consequences, when the ignorance itself flows from character. Our chief moral business is to become acquainted with consequences. Our moral character surely does not depend in this case, then, upon the fact that we had alternatives clearly in mind and chose the worse; the difficulty is that we had only one alternative in mind and did not _consciously_ choose at all. Our freedom lies in the _capacity_ to alter our mode of action, through having our ignorance enlightened by being held for the neglected consequences when brought to accountability by others, or by holding ourselves accountable in subsequent reflection. Cases of careless acts and of acts omitted through negligence are thus crucial for any theory of freedom and responsibility. Either we are all wrong in blaming ourselves or others in such cases, because there is no free or voluntary element in them; or else there is responsibility when deliberate comparison of alternatives and conscious preference are absent. There is responsibility for the absence of deliberation. Nature does not forbear to attach consequences to acts because of the ignorance of the one who does the deed. The evil results that follow in the wake of a thoughtless act are precisely the reminders that make one take thought the next time. Similarly, to be held liable by others or to take ourselves to task for forgetfulness, inconsiderateness, and negligence, is the way in which to build up conscientious foresight and deliberate choice. The increased complexity and danger of modern industrial activity, the menace of electric power, of high explosives, of railway trains and trolley cars, of powerful machines, have done much to quicken recognition that negligence may be criminal, and to reawaken the conviction of Greek thought that thoughtless ignorance, where knowledge is possible, is the worst of evils. The increased interdependence of men, through travel and transportation, collective methods of production, and crowding of population in cities, has widened the area of the harm likely to result from inconsiderate action, and has strengthened the belief that adequate thoughtfulness is possible only where there is sympathetic interest in others.
=5. The Conflict of Form and Substance.=--The technical forms of procedure concerned in establishing and remedying rights were, for long ages, more important than the substantial ends by which alone the forms may be justified. Any effort for a remedy was nullified if the minutiæ of complicated formulæ (largely magical or ritualistic in their origin) were deviated from. Almost any obligation might be escaped by some quirk or turn in some slight phrase or motion, without which no agreement was binding, so sacramental was the importance of the very words. In early days the rigidity of these semi-ritualistic performances doubtless served to check arbitrary and reckless acts, and to impress the sense of the value of a standard.[216] But they survived as "rudimentary organs" long after they had done their work in this respect; and after they had been eliminated from legal procedure they survived as habits of judging conduct.
=Survivals of Spirit of Individualistic Litigation.=--The fact that the procedure of justice originated as methods of supplying impartial umpires for conflicts waged between individuals, has had serious consequences. It has had indeed the desirable consequence of quickening men to the perception of their rights and to their obligation as social members to maintain them intact. But it has also had the undesirable result of limiting the function of the public interest to the somewhat negative one of securing fair play between contentious individuals. The battle is not now fought out with fists or spears or oaths or ordeals: but it is largely a battle of wits and of technical resources between the opposite parties and their lawyers, with the State acting the part of a benevolently neutral umpire. The ignorant, the poor, the foreign, and the _merely_ honest are almost inevitably at a discount in this battle.[217] And, in any case, the technical aspect of justice, that is, the question of proper forms gets out of true perspective. The "legally-minded" man is likely to be one with whom technical precedents and rules are more important than the goods to be achieved and the evils to be avoided. With increase of publicity and scientific methods of determining and interpreting facts, and with a public and professional criticism which is impartial and wise, we may anticipate that the supremacy of the general good will be increasingly recognized in cases of litigation, and that the courts, as organs of public justice, will take a more active and substantial part in the management of all legal controversies.[218] =Legal and Moral.=--But, at the best, definitions of rights and of remedial procedures only (1) lay down general, not individual conditions, and (2), so far as they are strict, register precedent and custom rather than anticipate the novel and variable. They can state what shall not be done. Except in special cases, they cannot state what shall be done, much less the spirit and disposition in which it shall be done. In their formulations, they present a sort of minimum limit of morality not to be overstepped by those inclined to ill. They throw little light on the positive capacities and responsibilities of those who are socially minded. They have a moral purpose: they free energy from the friction attendant upon vague, obscure, and uncertain situations, by enlightening men as to what they may do and how they may do it. But the exaggeration of form at the expense of the substantial end and good, leads to misplaced emphasis and false perspective. The rules are treated as ends; they are employed not to get insight into consequences, but as justifying, apart from consequences, certain acts.
The would-be conscientious agent is led into considering goodness as a matter of obeying rules, not of fulfilling ends. The average individual conceives he has satisfied the requirements of morality when he has conformed to the average level of legal definition and prescription.
Egoistic, self-seeking men regard their actions as sanctioned if they have _not_ broken the laws; and decide this question by success in evading penalties. The intelligence that should go to employing the spirit of laws to enlighten behavior is spent in ingenious inventions for observing their letter. The "respectable" citizen of this type is one of the unsocialized forces that social reformers find among their most serious obstacles.
This identification of morality with the legal and jural leads to a reaction which is equally injurious: the complete separation of the legal and the moral, the former conceived as merely "outer," concerned entirely with acts, not at all with motive and character. The effect of this divorce is perhaps more serious upon the moral than upon the legal.
The separation makes morals sentimental and whimsical, or else transcendental and esoteric. It leads to neglect of the social and institutional realities which form a world of action as surely as natural objects and energies form a physical world, and ends in the popular conception of morals as just a matter of "goodness" (the