Problems of Conduct: An Introductory Survey of Ethics

by Durant Drake

CHAPTER XXVIII

LIBERTY AND LAW

WE have spoken of the practical defects and dangers inherent in the various proposals that look to the rectification of industrial wrongs. But there is one source of opposition to these proposals that requires more extended consideration-the fear that they-and especially socialism-unduly threaten that ideal of personal liberty which our fathers so passionately served and we have come to look upon as the cornerstone of our prosperity. What is this ideal of liberty, and how should it affect our efforts at industrial regeneration? What are the essential aspects of the ideal of liberty? Throughout a long stretch of human history one of the most vexing obstacles to general happiness and progress has been the irresponsible power of sovereigns and oligarchies. To generations it has seemed that if freedom from selfish tyranny could but be won, the millennium would be at hand. Our heroes have been those who fought against despots for the rights of the people; we measure progress by such milestones as the Magna Charta, the French Revolution, the American Declaration of Independence. To this day we engrave the word "liberty" on our coins; and the converging multitudes from Europe look up eagerly to the great statue that welcomes them in New York Harbor and symbolizes for them the freedom that they have often suffered so much to gain. In Mrs. Hemans's hymn, in Patrick Henry's famous speech, in Mary Antin's wonderful autobiography, The Promised Land, we catch glimpses of that devotion to liberty which, it is now said, we are jeopardizing by our increasing mass of legislative restraints and propose to banish for good and all by an indefinite increase in the powers of the State. More than a generation ago Mill wrote: "There is in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation; and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable."[Footnote: Essay on Liberty, Introductory.] Not a few observers today are reiterating this note of alarm with increasing emphasis. Are their fears well founded? We may at once agree in applauding the liberty worship of our fathers and of our contemporaries in the more backward countries. No secure steps in civilization can be taken until liberty of body, of movement, and of possession are guaranteed; there must be no fear of arbitrary execution, arrest, or confiscation. To this must be added liberty of conscience, of speech, and of worship; the right of free assembly, a free press, and that "freedom to worship God" that the Pilgrims sought. Wherever these rights, so fundamental to human happiness, are impugned, "Liberty!" is still the fitting rallying-cry.[Footnote: The exact limits within which freedom of speech must be allowed are debatable, (a) Speech which incites to crime, to lawbreaking, to sexual and other vice, must be prevented; and (b) slander, the public utterance of grossly disparaging statements concerning any person, without reasonable evidence of their truth. May we attempt to stifle the utterance of (c) such other untruths as are inexcusable in the light of our common knowledge? There are certainly many matters where there is no longer room for legitimate difference of opinion; and the general diffusion of correct knowledge is greatly retarded by the silly utterances of uninformed people. Yet to draw the line here is so difficult that we must probably tolerate this evil forever rather than run the risk of stifling some generally unsuspected truth.] rights are safely won; the danger now is rather of abusing them. We must not forget that liberty is only a means, not an end in itself, to be restricted in so far as may be necessary for the greatest happiness. From our discussion in Part II it should be clear that there are no "natural rights" which the community is bound to respect; liberty must be granted the individual so far, and only so far, as it does not impede the general welfare. We do not hesitate to end the liberty, or even to take the life, of those we deem dangerous to society. We do not hesitate to confiscate the land which we deem necessary for a highway or railroad or public building. Indeed, we hedge personal liberty about with a thousand restrictions by general consent, in the realization that public interests must come before private. We have no need to discuss the doctrine of anarchism [Footnote: For an eloquent defense of anarchism see Tolstoy's writings; here is a sample statement: "For a Christian to promise to subject himself to any government whatsoever-a subjection which may be considered the foundation of state life-is a direct negation of Christianity." (Kingdom of God, chap. IX.) Cf. this utterance of one of the Chicago anarchists of 1886. "Whoever prescribes a rule of action for another to obey is a tyrant: usurper, and an enemy of liberty.">[- unrestricted liberty since the general chaos that would result there from, in the present stage of human nature, is sufficiently apparent. Liberty can never be absolute. Indeed, there has been a curious reversal of situation. The older cry of liberty that stirs us was a cry of the oppressed masses against their masters; now it is a slogan of the privileged upper classes against that increasing popular legislation which restricts their powers. Kings are now but figureheads, if they linger at all, in our modern democracies; governments are not irresponsible masters of the people, they are instruments for carrying out the popular will. The real tyrants now, those whose irresponsible authority is dangerous to the masses, are the kings of industry; if the cry of "liberty" is to be raised again, it should be raised, according to all historical precedent, in behalf of the slaves of modern industry rather than in behalf of the fortunate few who give up so grudgingly the practical powers they have usurped. There were those, indeed, who fought passionately for the divine right of kings, those who died to maintain the right of a white man to hold Negroes as slaves; there are those today who with a truly religious fervor uphold the right of the capitalistic class to manage the industries of the country at their own sweet will, unhampered by such legislative restrictions as the majority may deem expedient for the general welfare. But it is a travesty on the sacred word "liberty" that it should be thus invoked to uphold the prerogatives of the favored few. Liberty, in the sense in which it is properly an ideal for man, connotes the right to all such forms of activity as are consonant with the greatest general happiness, and to no others. It implies the right not to be oppressed, not the right to oppress. Mere freedom of contract is not real freedom, if the alternative be to starve; such formal freedom may be practical slavery. The real freedom is freedom to live as befits a man; and it is precisely because such freedom is beyond the grasp of multitudes today that our system of "free contract" is discredited; it offers the name of liberty without the reality. But apart from this questionable appeal to the ideal of liberty, there are not a few who sincerely believe, on grounds of practical expediency, that legislation ought not to interfere any more than proves absolutely necessary with the conduct of industry. This scheme of individualism we will now consider.

The ideal of individualism. The individualistic, or laissez-faire, ideal dates perhaps from Rousseau and the French doctrinaires; its best-known representatives in English speech are Mill and Spencer. Dewey and Tufts have pithily expressed it as follows: "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."[Footnote: Ethics, p. 483.] Its leading arguments may be presented and answered, summarily, as follows:

(1) Legislation has so often been mischievous that it is well to have as little of it as possible. The masses are uneducated, the prey of impulse and passion; politics are corrupt; to submit the genius of free ENTREPRENEURS to the clumsy and ill-fitted yoke of a popularly wrought legal control is to stifle their enterprise and interfere with their chances of success. After all, every one knows his own needs best; and if we leave people alone, they will secure their own welfare better than if we try to dictate to them how they shall seek it. "Out of the fourteen thousand odd acts which, in our own country, have been repealed, from the date of the Statute of Merton down to 1872 . . . how many have been repealed because they were mischievous? . . . Suppose that only three thousand of these acts were abolished after proved injuries had been caused, which is a low estimate. What shall we say of these three thousand acts which have been hindering human happiness and increasing human misery; now for years, now for generations, now for centuries?"[Footnote: H. Spencer, Principles of Ethics, part IV, sec. 131.] But to admit that much legislation has been blundering is not to admit that the principle of social control is wrong. Our political system must, indeed, be made must be placed in the way of overhasty and ill-considered lawmaking. But it is not always true that the individual is the best judge of his own ultimate interests; and it is demonstrably untrue that the pursuit by each of what he deems best for himself will bring the greatest happiness for all. The stronger and more favorably situated will take advantage of their position and resources; the weaker, though theoretically free, will in reality be under the handicap of poverty, ignorance, hunger. Such a system is inevitably vicious in its moral effects. To say that in a popular government legislation cannot properly standardize practice, cannot formulate a higher code of public morality than men can be depended upon to attain if unrestrained, is unwarrantably to discredit democracy. If the laws are bad, improve them. If the public is uneducated, educate it. If our system gives us poor lawmakers, change the system. But to give up the attempt at legal control, to leave things as they are or rather, to leave them to go from bad to worse, is unthinkable.

(2) Too much legislation stifles individuality, drags genius down to the dead level of average ideas, tends to produce an unprogressive uniformity of practice. It imposes the conceptions of the past upon the future. "If the measures have any effect at all, the effect must in part be that of causing some likeness among the individuals; to deny this is to deny that the process of molding is operative. But in so far as uniformity results advance is retarded. Every one who has studied the order of nature knows that without variety there can be no progress."[Footnote: H. Spencer, op. cit, sec. 138.] "Persons of genius, it is true, are, and are always likely to be, a small minority; but in order to have them it is necessary to preserve the soil in which they grow. Genius can only breathe freely in an atmosphere of freedom. … It is important to give the freest scope possible to uncustomary things, in order that it may in time appear which of these are fit to be converted into customs." [Footnote: J. S. Mill, On Liberty, chap. III.] But the intention of social legislation is to check only such individual action as is demonstrably detrimental; the uniformity produced will be only a uniform absence of flagrant wrongs and adoption of such positive precautions as will make the detection and checking of these harmful acts easy. Beyond this minimum uniformity (which, however, must include an enormous number of details, so manifold have the possibilities of wrongdoing become) there will on any system be ample range for the development of new methods and processes. Whatever danger there once was in choking individual initiative by needlessly paralyzing restrictions, will be, in the long run, negligible in an age of omnivorous reading and free discussion, and in a land whose conscious ideal is improvement, new invention, progress. As a matter of fact, it is chiefly through legislation that new methods of social practice become diffused. Each of our forty-eight States is experimenting in social guidance, trying to thwart this or that sin, to remedy this or that wrong, to work out a plan by which men can happily cooperate in our complex public life. The process of evolving an efficient and frictionless social machine, instead of being retarded by this activity of lawmaking, is actually accelerated thereby. Private business tends to fall into ruts; and one man's ideals are blocked by lack of cooperation from others. Legislation tends not only to preserve the best of past experiments; but, goaded by the zeal of reformers, and pushed by political parties, to drag complacent and inert individuals along new and untried paths. The greatest field for genius lies today in devising successful constructive legislation; and the greatest hope for progress in this era of mutual dependence lies in the winning of a majority for some social scheme that must be generally adopted if at all.

(3) Laws, however beneficent, which rise above the general conscience of the people are undesirable; character should precede legislation. "To conform to custom, merely as custom, does not educate or develop in

Our experience has been costly enough; and if it has revealed its lessons too late to save contemporary social life, at least it should serve as warning for our sons. To sacrifice right conduct to moral gymnastics is to set up the means as more important than the end; every good act that can be lifted from the plane of moral struggle and put securely on the plane of habit is a step in human progress, and leaves men freer to grapple with the remaining temptations. If you wish to educate men up to a law, put it upon the statute books if you can, compel attention to it and discussion of the reasons pro and con, show its practical workings; it is far easier to educate conscience up to an existing law than beyond it. Moreover, it must be said that those who prefer to see men left to think things out anew for themselves, without the restraint and guidance of the law, show a singular callousness toward those whom their action, if they choose wrongly, will hurt. If we could trust men to choose aright-but we cannot; and men must be protected against their own stupidity and weakness, and that of others, by the collective wisdom and will.

(4) Individualism makes for prosperity. Offering a fair chance to all, it brings the best to the top; the fittest survive, and win the positions of power; the community as a whole is, then, in the end advantaged. "Free competition in profits coordinates industrial efficiency and industrial reward.This is equality of opportunity, through which every man is rewarded according to his worth to the consumer." [Footnote: F. Y. Gladney, in the Outlook, vol. 101, p. 261.] Unfortunately, however, it is those who are fittest to serve not the community but their own interests that have the best chance to survive-the clever, the privileged, the unscrupulous. Nor is there equality of opportunity where some will not play fair and others have a long start. The individualistic struggle makes for the selection of a type of greedy, self-centered man, with little sense of social responsibility. Even granted that the men who reach the top are the men best fitted to manage the industries of the country, this method of selection of leaders is too wasteful of strength, too hard on the unsuccessful, to be generally profitable. The prosperity of modern industry is due not primarily to its chaotic plan of individual effort and cross-purposes, but to the measure of cooperation we have nevertheless attained, with its consequent division and specialization of labor and large-scale production, aided by the extraordinary development of invention and machinery. The ideal of legal control. The epoch of ultra individualism, of what Huxley called "administrative nihilism," is rapidly passing. Jane Addams speaks of "the inadequacy of those eighteenth-century ideals the breakdown of the machinery which they provided," pointing out that "that worldly wisdom which counsels us to know life as it is" discounts the assumption "that if only the people had freedom they would walk continuously in the paths of justice and righteousness." [Footnote: Newer Ideals of Peace, pp. 31-32.] H. G. Wells remarks, "We do but emerge now from a period of deliberate happy- go-lucky and the influence of Herbert Spencer, who came near raising public shiftlessness to the dignity of a natural philosophy. Everything would adjust itself-if only it was left alone." [Footnote: Social Forces in England and America, p. 80.] It is becoming clear that we cannot trust to education and the conscience of individuals to right matters, not only because as yet we provide no moral education of any consequence for our youth, but because, if we did, the temptations in a world where every man is free to grab for himself would still be almost irresistible. But there are two positive arguments for the extension of legal control that clinch the matter:

(1) Without the support of the law it is often impossible for the conscientious man to act in a purely social spirit. The competition of those who are less answerable to moral motives forces him to lower his own ideals if he would not see his business ruined. The employer of child labor in one factory cannot afford to hire adults, at their higher wage, until all the other factories give up the cheaper labor also. Where sweatshop labor produces cheap clothing for some manufacturers, the more scrupulous are undersold. One employer cannot, unless he is unusually prosperous, raise the wages of his employees or shorten their hours until his competitors do likewise. Improvement of conditions must take place all along the line or not at all. And since unanimous voluntary consent is practically impossible to obtain, and of precarious duration if obtained, the legal enforcement of common standards is necessitated.

(2) Men generally are willing to bind themselves by law to higher codes than they will live up to if not bound. In their reflective moments, when they are deciding how to vote, temptations are less insistent and ideals stronger than when they are confronting concrete situations. To vote for a law which will restrain others, and incidentally one's self, comes easier than to make a purely personal sacrifice that leaves general practice unaltered. To realize that this is true, we need but look at the remarkable ethical gains made now year by year through laws voted for by many of the very men whose practice had hitherto been upon a lower moral level. Very many evils that once seemed fastened upon society have been thus legislated out of existence.[Footnote: For a vivid picture of earlier industrial conditions which would not now be tolerated, see Charles Reade's Put Yourself in His Place.] And if the industrial situation still seems wretched, it is because, in our swift advance, new evils are arising about as fast as older evils are eradicated. The law necessarily lags behind the spread of abuses, so that "there will probably always be a running duel between anti-social action and legislation designed to check it. Novel methods of corruption will constantly require novel methods of correction . . But this constant development of the law should make corrupt practices increasingly difficult for the less gifted rascals who must always constitute the great majority of would-be offenders." [Footnote: R. C. Brooks, Corruption in American Politics and Life, p. 99.] The law can never, of course, cover the whole field of human conduct; it represents, in Stevenson's phrase," that modicum of morality which can be squeezed out of the rock of mankind." Unnecessary extension of the law is cumbersome, expensive, and provocative of impatience and rebellion. Moreover, there is always some minimum of danger of injustice in attempting legal constraint; the law itself, as approved by the majority, may be unfair, or its application to the concrete case may be unfair. The individualists are right in feeling that men must be left alone, wherever the possible results are not too dangerous. But no hard-and-fast line can be drawn between activities that must be left free and those which must be regulated. Such apparently personal matters as the use of opium or alcohol must be checked because the general happiness is, in the end, greatly and obviously enhanced by such restraint. But there will always be, beyond the law, a wide field for the satisfaction of personal tastes and the practice of generosity. There is no double standard; if an act is legally right and morally wrong, that simply means that it lies beyond the boundaries of the limited field which the law covers. The extension of that field is a matter of practical expediency in each type of situation; beyond that field, but working to the same ends, the forces of education and public opinion are alone available. [Footnote: For a discussion of this point, see F. Paulsen, System of Ethics, book III, chap. IX, sec. 9. International Journal of Ethics, vol. 18, p. 18.] Should existing laws always be obeyed? Year by year we are extending our network of laws over human conduct; more and more pertinent becomes the them? and the further question, Are there times when the law may be rightly disobeyed? We shall discuss the second question first. It is obvious that our whole social structure rests upon the willingness of the people to obey the law. The watchword of republics should be, not "liberty," but "obedience"; their gravest danger now is not tyranny, but anarchy. We must individually submit with patience and good temper to the decisions of the majority, even if we disapprove those decisions. We must abide by the rules of the game until we can get the rules changed. And all changes must be effected according to the rules agreed upon for effecting changes. This law-abiding spirit is the great triumph of democracy; only so long as it exists can popular government stand. Though it be slower and exacting of greater effort and skill, evolution, not revolution, is the method of permanent progress. We must, then, band together against any groups that, in their impatience of reform or opposition to the common will, cast aside the restraints of law. However dearly we may long for woman's suffrage, we must sternly repress those excited suffragettes who would gain this end by defiance of law and destruction of property; even if they further their particular cause by their violence-which is highly doubtful-they do it at the expense of something still more precious, the preservation of the law-abiding spirit. Other organizations will not be slow to profit by the lesson of their success; and we shall have Heaven knows how many causes seeking to attain their ends by destructiveness and resistance. Similarly, the more serious and menacing rebellion of labor against law must be firmly controlled; much as we may sympathize with their grievances, we cannot countenance the attempt to remedy them by violence. The Industrial Workers of the World, with action, [Footnote: Cf, in a pamphlet issued by them: "The I.W.W. will get the results sought with the least expenditure of time and energy. The tactics used are determined solely by the power of the organization to make good in their use". The question of 'right' and 'wrong' does not concern us. In short, the I.W.W. advocates the use of militant 'direct action' tactics to the full extent of our power to make them." (Quoted in Atlantic Monthly, vol. 109, p. 703.)] have made themselves enemies of society. The advocates of "sabotage," the "reds" in the socialist camp, the preachers of practical anarchism, must be treated as among the most dangerous of criminals. On the other hand, the spread of the spirit of lawlessness among the lower classes should serve to warn the upper classes that present social conditions will not much longer be endured.[Footnote: Cf. Ettor (quoted in Outlook, vol. 101, p. 340): "They tell us to get what we want by the ballot. They want us to play the game according to the established rules. But the rules were made by the capitalists. THEY have laid down the laws of the game. THEY hold the pick of the cards. We never can win by political methods. The right of suffrage is the greatest hoax of history. Direct action is the only way.">[ There is a great deal of idealism among the advocates of violence;[Footnote: Cf, for example, Giovannitti's poem, The Cage, in the Atlantic Monthly, June, 1913.] there is a great deal of sympathy on the part of the public with lawless strikers, with the I.W.W. gangs that have recently invaded city churches, with all those under-dogs who are now determining to have a share in the good things of life. Unless the employing and governing classes meet their demands halfway, gunpowder and dynamite pretty surely lie ahead. Will the spirit of lawlessness spread? Ought we to slacken our process of lawmaking lest we make the yoke too hard to bear? As a matter of fact, it is through more laws, better laws, and a better mechanism for punishing infraction of laws, that we can hope to check lawlessness. Lynching-as we noted in chapter XXV-have been the product of inadequate legislation and judicial procedure; as our laws against the worst crimes become sharper, our police forces more efficient, and our court trials quicker and less hampered by technicalities, they decrease in number. As education on the liquor question spreads, violations of prohibition laws become fewer. The kind of lawlessness that is on the increase is that which exists as a protest against and a means of remedying evils that the laws have not yet properly dealt with. Give us by law an industrial code that will minimize the exploitation of the weak by the strong, bringing a good measure of security and comfort to all, and such outrages as those of the McNamara brothers will cease, or at worst will be merely sporadic and generally condemned. Allow present conditions to drift on without sharp legal guidance, and such outrages will certainly become more and more numerous. The alternative that confronts the modern world is plainly evolution by law or revolution by violence. Individualism: J. S. Mill, On Liberty. H. Spencer, Principles of Ethics, part iv, chaps, XXV-XXIX; Social Statics; and many other writings. J. H. Levy, The Outcome of Individualism. Various publications of the British Personal Rights Association. W. Donisthorpe, Individualism. W. Fite, Individualism, lect. IV. Legal control: Florence Kelley, Some Ethical Gains through Legislation. Jane Addams, Newer Ideals of Peace. E. A. Ross, Social Control, chap. XXXI. D. S. Ritchie, Principles of State Interference. J. W. Jenks, Government Action for Social Welfare. A. V. Dicey, Law and Opinion. J. Seth, Study of Ethical Principles, pp. 297-331. H. C. Potter, Relation of the Individual to the Industrial Situation, chap. VI. W. J. Brown, Underlying Principles of Modern Legislation. Journal of Philosophy, Psychology, and Scientific Methods, vol. 10, p. 113. A. T. Hadley, Freedom and Responsibility. J. W. Garner, Introduction to Political Science, chaps, IX, X. Edmond Kelly, Evolution and Effort. Lawlessness: Atlantic Monthly, vol. 109, p. 441. Outlook, vol. 98, p. 12; vol. 99, p. 901; vol. 100, p. 359. J. G. Brooks, American Syndicalism.