goody-goodiness) of individuals. One of the most fundamental of moral duties is that of making the legal order a more adequate expression of the common good.
=Special Problems.=--Civil Society thus imposes upon its members not only specific obligations, but it also imposes upon all who enjoy its benefits the supreme obligation of seeing that the civic order is itself intelligently just in its methods of procedure. The peculiar moral problems which men have to face as members of civil society change, of course, from time to time with change of conditions; among the more urgent of present problems, we may mention: =1. Reform of Criminal Procedure.=--The negative side of morality is never so important as the positive, because the pathological cannot be as important as the physiological of which it is a disturbance and perversion. But no fair survey of our methods, either of locating criminality or of punishing it, can fail to note that they contain far too many survivals of barbarism. Compared with primitive times we have indeed won a precious conquest. Even as late as 1813, a proposal to change the penalty for stealing five shillings from death to transportation to a remote colony, was defeated in England.[219] But we are likely in flattering ourselves upon the progress made to overlook that which it remains to make. Our trials are technical rather than human: they assume that just about so much persistent criminality must persist in any case. They endeavor, in rather routine and perfunctory ways, to label this and that person as criminal in such and such degrees, or, by technical devices and resources, to acquit. In many American states, distrust of government, inherited from days of tyrannical monarchy or oligarchy, protects the accused in all sorts of ways. For fear the government will unjustly infringe upon the liberty of the individual, the latter is not only--as is just--regarded as innocent till proved guilty; but is provided with every possible technical advantage in rules of evidence, postponements and appeals, advantages backed up, in many cities, by association with political bosses which gives him a corrupt "pull."
On the other hand, there is as yet no general recognition of the possibility of an unbiased scientific investigation into all the antecedents (hereditary and environmental) of evildoers; an investigation which would connect the wrong done with the _character of the individual_ committing it, and not merely with one of a number of technical degrees of crime, laid down in the statute books in the abstract, without reference to particular characters and circumstances.
Thus while the evildoer has in one direction altogether too much of a chance to evade justice, he has in another direction a chance at only technical, rather than at moral, justice--justice as an individual human being. It is not possible to discuss here various methods which have been proposed for remedying these defects. But it is clearly the business of the more thoughtful members of society to consider the evils seriously and to interest themselves actively in their reform. We need, above all, a change in two respects: (a) recognition of the possibilities of new methods of judgment which the sciences of physiology, psychology, and sociology have brought about; and (b) surrender of that feudal conception according to which men are divided, as it were essentially, into two classes: one the criminal and the other the meritorious. We need to consider the ways in which the pressure and the opportunities of environment and education, of poverty and comfortable living, of extraneous suggestion and stimulation, make the differences between one man and another; and to recognize how fundamentally one human nature is at bottom. Juvenile courts, probation officers, detention officers, mark the beginnings of what is possible, but only the beginnings. For the most part crime is still treated sordidly and by routine, except when, being sensational, it is the occasion for a great battle of wits between keen prosecuting attorney and clever "criminal lawyer," with the world through the newspapers watching the display.
=2. Reform of Punishment.=--Emerson's bitter words are still too applicable. "Our distrust is very expensive. The money we spend for courts and prisons is very ill laid out. We make, by distrust, the thief and burglar and incendiary, and by our court and jail we keep him so."[220] Reformatories, whose purpose is change of disposition, not mere penalization, have been founded; but there are still many more prisons than reformatories. And, if it be argued that most criminals are so hardened in evil-doing that reformatories are of no use, the answer is twofold. We do not know, because we have never systematically and intelligently tried to find out; and, even if it were so, nothing is more illogical than to turn the unreformed criminal, at the end of a certain number of months or years, loose to prey again upon society.
Either reform or else permanent segregation is the logical alternative.
Indeterminate sentences, release on probation, discrimination of classes of offenders, separation of the first and more or less accidental and immature offender from the old and experienced hand, special matrons for women offenders, introduction of education and industrial training into penitentiaries, the finding of employment for those released--all mark improvements. They are, however, as yet inchoate. Intelligent members of society need to recognize their own responsibility for the promotion of such reforms and for the discovery of new ones.
=3. Increase of Administrative Efficiency.=--In the last one hundred years, society has rapidly grown in internal complexity. Commercial changes have brought about an intense concentration of population in cities; have promoted migratory travel and intercourse, with destruction of local ties; have developed world markets and collective but impersonal (corporate) production and distribution. Many new problems have been created, while at the same time many of the old agencies for maintaining order have been weakened or destroyed, especially such as were adapted to small groups with fixed habits. A great strain has thus been put upon the instrumentalities of justice. Pioneer conditions retarded in America the development of the problems incident upon industrial reconstruction. The possibility of moving on, of taking up new land, finding unutilized resources of forest and mine, the development of new professions, the growth of population with new needs to be met, stimulated and rewarded individual enterprise. Under such circumstances there could be no general demand for public agencies of inspection, supervision, and publicity. But the pioneer days of America are practically ended. American cities and states find themselves confronted with the same problems of public health, poverty and unemployment, congested population, traffic and transportation, charitable relief, tramps and vagabondage, and so forth, that have troubled older countries.
We face these problems, moreover, with traditions which are averse to "bureaucratic" administration and public "interference." Public regulation is regarded as a "paternalistic" survival, quite unsuited to a free and independent people. It would be foolish, indeed, to overlook or deny the great gains that have come from our American individualistic convictions: the quickening of private generosity, the growth of a generalized sense of _noblesse oblige_--of what every successful individual owes to his community; of personal initiative, self-reliance, and versatile "faculty"; of interest in all the voluntary agencies which by education and otherwise develop the individuality of every one; and of a demand for equality of opportunity, a fair chance, and a square deal for all. But it is certain that the country has reached a state of development, in which these individual achievements and possibilities require new civic and political agencies if they are to be maintained as realities. Individualism means inequity, harshness, and retrogression to barbarism (no matter under what veneer of display and luxury), unless it is a _generalized_ individualism: an individualism which takes into account the real good and effective--not merely formal--freedom of _every_ social member.
Hence the demand for civic organs--city, state, and federal,--of expert inquiry, inspection, and supervision with respect to a large number of interests which are too widespread and too intricate to be well cared for by private or voluntary initiative. The well-to-do in great cities may segregate themselves in the more healthful quarters; they may rely upon their automobiles for local transportation; they may secure pure milk and unadulterated foods from personal resources; they may, by their combined "pull," secure good schools, policing, lighting, and well-paved streets for their own localities. But the great masses are dependent upon public agencies for proper air, light, sanitary conditions of work and residence, cheap and effective transportation, pure food, decent educative and recreative facilities in schools, libraries, museums, parks.
The problems which fall to the lot of the proper organs of administrative inspection and supervision are essentially _scientific_ problems, questions for expert intelligence conjoined with wide sympathy. In the true sense of the word political, they are political questions: that is, they relate to the welfare of society as an organized community of attainment and endeavor. In the cant sense of the term political, the sense of conventional party-issues and party-lines, they have no more to do with politics than have the multiplication table and the laws of hygiene. Yet they are at present almost hopelessly entangled with irrelevant "political" issues, and are almost hopelessly under the heel of party-politicians whose least knowledge is of the scientific questions involved, just as their least interest is for the human issues at stake. So far "civil service reform" has been mainly negative: a purging away of some of the grosser causes which have influenced appointments to office. But now there is needed a constructive reform of civil administration which will develop the agencies of inquiry, oversight, and publicity required by modern conditions; and which will necessitate the selection of public servants of scientifically equipped powers.
§ 3. POLITICAL RIGHTS AND OBLIGATIONS No hard and fast line can be drawn between civil society and the State.
By the State, however, we denote those conditions of social organization and regulation which are most fundamental and most general:--conditions which are summed up in and expressed through the general will as manifested in legislation and its execution. As a civil right is technically focused in the right to use the courts, "to sue and be sued," that is in the right to have other claims adjudicated and enforced by a public, impartial authority, so a political right is technically summed up in the power to vote--either to vote directly upon laws or to vote for those who make and carry out laws. To have the right in a legislative assembly to speak for or against a certain measure; to be able to say "yea" or "nay" upon a roll-call; to be able to put into a ballot-box a piece of paper with a number of names written thereon, are not acts which of themselves possess the inherent value of many of the most ordinary transactions of daily life. But the representative and potential significance of political rights exceeds that of any other class of rights. Suffrage stands for direct and active participation in the regulation of the terms upon which associated life shall be sustained, and the pursuit of the good carried on. Political freedom and responsibility _express an individual's power and obligation to make effective all his other capacities by fixing the social conditions of their exercise_.
=Growth of Democracy.=--The evolution of democratically regulated States, as distinct from those ordered in the interests of a small group, or of a special class, is the social counterpart of the development of a comprehensive and common good. Externally viewed, democracy is a piece of machinery, to be maintained or thrown away, like any other piece of machinery, on the basis of its economy and efficiency of working. Morally, it is the effective embodiment of the moral ideal of a good which consists in the development of all the social capacities of every individual member of society.
=Present Problems: 1. Distrust of Government.=--Present moral problems connected with political affairs have to do with safeguarding the democratic ideal against the influences which are always at work to undermine it, and with building up for it a more complete and extensive embodiment. The historic antecedent of our own governmental system was the exercise of a monopoly by a privileged class.[221] It became a democratic institution partly because the King, in order to secure the monopoly, had to concede and guarantee to the masses of the people certain rights as against the oligarchical interests which might rival his powers; and partly because the centralization of power, with the arbitrary despotism it created, called out protests which finally achieved the main popular liberties: safety of life and property from arbitrary forfeiture, arrest, or seizure by the sovereign; the rights of free assembly, petition, a free press, and of representation in the law-making body.
Upon its face, the struggle for individual liberty was a struggle against the overbearing menace of despotic rulers. This fact has survived in an attitude towards government which cripples its usefulness as an agency of the general will. Government, even in the most democratic countries, is still thought of as an external "ruler," operating from above, rather than as an organ by which people associated in pursuit of common ends can most effectively coöperate for the realization of their own aims. Distrust of government was one of the chief traits of the situation in which the American nation was born. It is embodied not only in popular tradition, and party creeds, but in our organic laws, which contain many provisions expressly calculated to prevent the corporate social body from effecting its ends freely and easily through governmental agencies.[222] There can be no doubt that the movement to restrict the functions of government, the _laissez-faire_ movement, was in its time an important step in human freedom, because so much of governmental action was despotic in intention and stupid in execution. But it is also a mistake to continue to think of a government which is only the people associated for the assuring of their own ends as if it were the same sort of thing as a government which represented the will of an irresponsible class.
The advance of means of publicity, and of natural and social science, provides not only protection against ignorant and unwise public action, but also constructive instrumentalities of intelligent administrative activities. One of the chief moral problems of the present day is, then, that of making governmental machinery such a prompt and flexible organ for expressing the _common_ interest and purpose as will do away with that distrust of government which properly must endure so long as "government" is something imposed from above and exercised from without.
=2. Indifference to Public Concerns.=--The multiplication of private interests is a measure of social progress: it marks the multiplication of the sources and ingredients of happiness. But it also invites neglect of the fundamental general concerns which, seeming very remote, get pushed out of sight by the pressure of the nearer and more vivid personal interests. The great majority of men have their thoughts and feelings well occupied with their family and business affairs; with their clubs for recreation, their church associations, and so on.
"Politics" becomes the trade of a class which is especially expert in the manipulation of their fellows and skilled in the "acceleration" of public opinion. "Politics" then gets a bad name, and the aloofness from public matters of those best fitted, theoretically, to participate in them is further promoted. The saying of Plato, twenty-five hundred years ago, that the penalty good men pay for not being interested in government is that they are then ruled by men worse than themselves, is verified in most of our American cities.
=3. Corruption.=--This indifference of the many, which throws the management of political affairs into the hands of a few, leads inevitably to corruption. At the best, government is administered by human beings possessed of ordinary human frailties and partialities; and, at the best, therefore, its ideal function of serving impartially the common good must be compromised in its execution. But the control of the inner machinery of governmental power by a few who can work in irresponsible secrecy because of the indifference and even contempt of the many, incites to deliberate perversion of public functions into private advantages. As embezzlement is appropriation of trust funds to private ends, so corruption, "graft," is prostitution of public resources, whether of power or of money, to personal or class interests.
That a "public office is a public trust" is at once an axiom of political ethics and a principle most difficult to realize.
In our own day, a special field has been opened within which corruption may flourish, in the development of public utility companies. Railways, city transportation systems, telegraph and telephone systems, the distribution of water and light, require public franchises, for they either employ public highways or they call upon the State to exercise its power of eminent domain. These enterprises can be carried on efficiently and economically only as they are either monopolies, or quasi-monopolies. All modern life, however, is completely bound up with and dependent upon facilities of communication, intercourse, and distribution. Power to control the various public-service corporations carries with it, therefore, power to control and to tax all industries, power to build up and cast down communities, companies, and individuals, to an extent which might well have been envied by royal houses of the past. It becomes then a very special object for great corporations to control the agencies of legislation and administration; and it becomes a very special object for party leaders and bosses to get control of party machinery in order to act as brokers in franchises and in special favors--sometimes directly for money, sometimes for the perpetuation and extension of their own power and influence, sometimes for the success, through influential support and contribution to party funds, of the national party with which they are identified.
=4. Reforms in Party Machinery.=--The last decade or so of our history has been rife with schemes to improve political conditions. It has become clear, among other things, that our national growth has carried with it the development of secondary political agencies, not contemplated by the framers of our constitutions, agencies which have become primary in practical matters. These agencies are the "machines" of political parties, with their hierarchical gradation of bosses from national to ward rulers, bosses who are in close touch with great business interests at one extreme, and with those who pander to the vices of the community (gambling, drink, and prostitution) at the other; parties with their committees, conventions, primaries, caucuses, party-funds, societies, meetings, and all sorts of devices for holding together and exciting masses of men to more or less blind acquiescence.
It is not necessary to point out the advantages which parties have subserved in concentrating and defining public opinion and responsibility in large issues; nor to dwell upon their value in counteracting tendencies which break up and divide men into a multitude of small groups having little in common with one another. But behind these advantages a vast number of abuses have sheltered themselves.
Recent legislation and recent discussion have shown a marked tendency formally to recognize the part actually played by party machinery in the conduct of the State, and to take measures to make this factor more responsible in its exercise. Since these measures directly affect the conditions under which the government as the organ of the general will does its work of securing the fundamental conditions of equal opportunity for all, they have a direct moral import. Such questions as the Australian ballot, the recognition of party emblems and party groupings of names; laws for direct primary nominations; the registering of voters for primary as well as for final elections; legal control of party committees and party conventions; publicity of accounts as to the reception and use of party funds; forbidding of contributions by corporations, are thus as distinctly moral questions as are bribery and ballot-box stuffing.
=5. Reforms in Governmental Machinery.=--Questions that concern the respective advantages of written versus unwritten constitutions are in their present state problems of technical political science rather than of morals. But there are problems, growing out of the fact that for the most part American constitutions were written and adopted under conditions radically unlike those of the present, which have a direct ethical import. As already noted, our constitutions are full of evidences of distrust of popular coöperative action. They did not and could not foresee the direction of industrial development, the increased complexity of social life, nor the expansion of national territory. Many measures which have proved indispensable have had therefore to be as it were smuggled in; they have been justified by "legal fictions" and by interpretations which have stretched the original text to uses undreamed of. At the same time, the courts, which are the most technical and legal of our political organs, are supreme masters over the legislative branch, the most popular and general. The distribution of functions between the states and the nation is curiously ill-adapted to present conditions (as the discussions regarding railway regulation indicate); and the distribution of powers between the state and its municipalities is hardly less so, resting in theory upon the idea of local self-government, and in practice doing almost everything possible to discourage responsible initiative for the conduct of their own affairs on the part of municipalities.
These conditions have naturally brought forth a large crop of suggestions for reforms. It is not intended to discuss them here, but the more important of them, so far as involving moral questions, may be briefly noted. The proposals termed the initiative and the referendum and the "recall" (this last intended to enable the people to withdraw from office any one with whose conduct of affairs they are dissatisfied) are clearly intended to make the ideal of democratic control more effective in practice. Proposals for limited or complete woman's suffrage call attention to the fact that one-half of the citizenship does the political thinking for the other half, and emphasize the difficulty under such conditions of getting a comprehensive social standpoint (which, as we have already seen, is the sympathetic and reasonable standpoint) from which to judge social issues. Many sporadic propositions from this and that quarter indicate a desire to revise constitutions so as to temper their cast-iron quality and increase their flexible adaptation to the present popular will, and so as to emancipate local communities from subjection to State legislatures in such a way as to give them greater autonomy and hence greater responsibility, in the management of their own corporate affairs. It is not the arguments _pro_ and _con_ that we are here concerned with; but we are interested to point out that moral issues are involved in the settlement of these questions. It may, moreover, be noted that dividing lines in the discussion are generally drawn, consciously or unconsciously, on the basis of the degree of faith which exists in the democratic principle and ideal, as against the class idea in some of its many forms.
=6. Constructive Social Legislation.=--The rapid change of economic methods, the accumulation and concentration of wealth, the aggregation of capital and labor into distinct bodies of corporations and trusts, on one side, and federated labor unions, on the other; the development of collective agencies of production and distribution, have brought to the focus of public attention a large number of proposals for new legislation, almost all of which have a direct moral import. These matters are discussed at length in subsequent chapters (chs.
xxii.-xxv.); and so are passed over here with the reminder that, while on one side they are questions of the ethics of industry, they are also questions of the right and wrong use of political power and authority.
We may also note that the theoretical principle at issue, the extension versus the restriction of governmental agencies, so far as it is not simply a question of what is expedient under the given circumstances, is individualism. The democratic movement of emancipation of personal capacities, of securing to each individual an _effective_ right to count in the order and movement of society as a whole (that is, in the common good), has gone far enough to secure to many, more favored than others, peculiar powers and possessions. It is part of the irony of the situation that such now oppose efforts to secure equality of opportunity to _all_ on the ground that these efforts would effect an invasion of individual liberties and rights: i.e., of privileges based on inequality. It requires perhaps a peculiarly sympathetic imagination to see that the question really involved is not one of magnifying the powers of the State against individuals, but is one of making individual liberty a more extensive and equitable matter.
=7. The International Problem.=--The development of national States marks a tremendous step forward in the realization of the principle of a truly inclusive common good. But it cannot be the final step. Just as clans, sects, gangs, etc., are intensely sympathetic within and intensely exclusive and jealous without, so States are still arrayed against States, with patriotism, loyalty, as an internal virtue, and the distrust and hatred of divisive hostility as the counterpart vice. The idea of humanity in the abstract has been attained as a moral ideal. But the political organization of this conception, its embodiment in law and administrative agencies, has not been achieved. International law, arbitration treaties, and even a court like the Hague tribunal, whose power is sentimental rather than political, mark steps forward. Nothing could be more absurd, from the historic point of view, than to regard the conception of an international State of federated humanity, with its own laws and its own courts and its own rules for adjudicating disputes, as a mere dream, an illusion of sentimental hope. It is a very slight step to take forward compared with that which has substituted the authority of national States for the conflict of isolated clans and local communities; or with that which has substituted a publicly administered justice for the régime of private war and retaliation. The argument for the necessity (short of the attainment of a federated international State with universal authority and policing of the seas) of preparing in peace by enlarged armies and navies for the possibility of war, must be offset at least by recognition that the possession of irresponsible power is always a direct temptation to its irresponsible use. The argument that war is necessary to prevent moral degeneration of individuals may, under present conditions, where every day brings its fresh challenge to civic initiative, courage, and vigor, be dismissed as unmitigated nonsense.
§ 4. THE MORAL CRITERION OF POLITICAL ACTIVITY The moral criterion by which to try social institutions and political measures may be summed up as follows: The test is whether a given custom or law sets free individual capacities in such a way as to make them available for the development of the general happiness or the common good. This formula states the test with the emphasis falling upon the side of the individual. It may be stated from the side of associated life as follows: The test is whether the general, the public, organization and order are promoted in such a way as to equalize opportunity for all.
=Comparison with the Individualistic Formula.=--The formula of the individualistic school (in the narrow sense of that term--the _laissez-faire_ school) reads: The moral end of political institutions and measures is the maximum possible freedom of the individual consistent with his not interfering with like freedom on the part of other individuals. It is quite possible to interpret this formula in such a way as to make it equivalent to that just given. But it is not employed in that sense by those who advance it. An illustration will bring out the difference. Imagine one hundred workingmen banded together in a desire to improve their standard of living by securing higher wages, shorter hours, and more sanitary conditions of work. Imagine one hundred other men who, because they have no families to support, no children to educate, or because they do not care about their standard of life, are desirous of replacing the first hundred at lower wages, and upon conditions generally more favorable to the employer of labor. It is quite clear that in offering themselves and crowding out the others, they are not interfering with the _like_ freedom on the part of others.
The men already engaged are "free" to work for lower wages and longer time, if they want to. But it is equally certain that they are interfering with the _real_ freedom of the others: that is, with the effective expression of their _whole_ body of activities.
The formula of "_like_ freedom" artificially isolates some one power, takes that in the abstract, and then inquires whether _it_ is interfered with. The one truly moral question is what relation this particular power, say the power to do a certain work for a certain reward, sustains to all the other desires, purposes, and interests of the individual. How are _they_ affected by the way in which some one activity is exercised?
It is in them that the concrete freedom of the man resides. We do not know whether the freedom of a man is interfered with or is assisted until we have taken into account his whole system of capacities and activities. The maximum freedom of one individual consistent with equal _concrete_ or _total_ freedom of others, would indeed represent a high moral ideal. But the individualistic formula is condemned by the fact that it has in mind only an abstract, mechanical, external, and hence formal freedom.
=Comparison with the Collectivistic Formula.=--There is a rival formula which may be summed up as the subordination of private or individual good to the public or general good: the subordination of the good of the part to the good of the whole. This notion also _may_ be interpreted in a way which renders it identical with our own criterion. But it is usually not so intended. It tends to emphasize quantitative and mechanical considerations. The individualistic formula tends in practice to emphasize the freedom of the man who has power at the expense of his neighbor weaker in health, in intellectual ability, in worldly goods, and in social influence. The collectivistic formula tends to set up a static social whole and to prevent the variations of individual initiative which are necessary to progress. An individual variation may involve opposition, not conformity or subordination, to the existing social good taken statically; and yet may be the sole means by which the existing State is to progress. Minorities are not always right; but every advance in right begins in a minority of one, when some individual conceives a project which is at variance with the social good as it _has_ been established.
A true public or social good will accordingly not subordinate individual variations, but will encourage individual experimentation in new ideas and new projects, endeavoring only to see that they are put into execution under conditions which make for securing responsibility for their consequences. A just social order promotes in all its members habits of criticizing its attained goods and habits of projecting schemes of new goods. It does not aim at intellectual and moral subordination. Every form of social life contains survivals of the past which need to be reorganized. The struggle of some individuals _against_ the existing subordination of their good to the good of the whole is the method of the reorganization of the whole in the direction of a more generally distributed good. Not order, but orderly progress, represents the social ideal.
LITERATURE Green, _Principles of Political Obligation_, 1888; Ritchie, _Principles of Right_, 2 vols., 1901; Willoughby, _An Examination of the Nature of _The Nation_, 1882; Spencer, _Principles of Sociology_, Vol. II., Part V., 1882, on Political Institutions; Bentham, _Fragment on Government_, _Jurisprudence_, 2 vols., 4th ed., 1873; Hadley, _The Relations between Freedom and Responsibility in the Evolution of Democratic Government_, 1903; Pollock, _Expansion of the Common Law_, 1904; Hall, _Crime in Its Relations to Social Progress_, 1901; _Philanthropy and Social Progress_, 1873 (a criticism of Mill's _Liberty_); Tufts, _Some Contributions of Psychology to the Conception of Justice_, Philosophical Review, Vol.
XV., p. 361.
FOOTNOTES: [204] A traveler tells of overhearing children in Australia, when one of their kin had injured some one in another clan, discuss whether or no they came within the degree of nearness of relationship which made them liable to suffer.
[205] Hearn, _The Aryan Household_, p. 431. Hearn is speaking, moreover, of a later and more advanced condition of society, one lying well within "civilization."
[206] Those interested in this important history, as every student of morals may well be, will find easily accessible material in the following references: Hobhouse, _Morals in Evolution_, ch. iii. of Vol.