Moral Science; a Compendium of Ethics

by Alexander Bain

Laying down one's right to anything is divesting one's self of the liberty of hindering another in the exercise of his own original right to the same. The right is renounced, when a man cares not for whose benefit; transferred, when intended to benefit some certain person or persons. In either case the man is obliged or bound not to hinder those, in whose favour the right is abandoned, from the benefit of it; it is his duty not to make void his own voluntary act, and if he does, it is injustice or injury, because he acts now sine Jure. Such conduct Hobbes likens to an intellectual absurdity or self-contradiction. Voluntary signs to be employed in abandoning a right, are words and actions, separately or together; but in all bonds, the strength comes not from their own nature, but from the fear of evil resulting from their rupture.

He concludes that not all rights are alienable, for the reason that the abandonment, being a voluntary act, must have for its object some good to the person that abandons his right. A man, for instance, cannot lay down the right to defend his life; to use words or other signs for that purpose, would be to despoil himself of the end—security of life and person—for which those signs were intended.

Contract is the mutual transferring of right, and with this idea he connects a great deal. First, he distinguishes transference of right to a thing, and transference of the thing itself. A contract fulfilled by one party, but left on trust to be fulfilled by the other, is called the Covenant of this other, (a distinction he afterwards drops), and leaves room for the keeping or violation of faith. To contract he opposes gift, free-gift, or grace, where there is no mutual transference of right, but one party transfers in the hope of gaining friendship or service from another, or the reputation of charity and magnanimity, or deliverance from the merited pain of compassion, or reward in heaven.

There follow remarks on signs of contract, as either express or by inference, and a distinction between free-gift as made by words of the present or past, and contract as made by words past, present, or future; wherefore, in contracts like buying and selling, a promise amounts to a covenant, and is obligatory.

The idea of Merit is thus explained. Of two contracting parties, the one that has first performed merits what he is to receive by the other's performance, or has it as due. Even the person that wins a prize, offered by free-gift to many, merits it. But, whereas, in contract, I merit by virtue of my own power and the other contractor's need, in the case of the gift, I merit only by the benignity of the giver, and to the extent that, when he has given it, it shall be mine rather than another's. This distinction he believes to coincide with the scholastic separation of merilum congrui and merilum condigni.

He adds many more particulars in regard to covenants made on mutual trust. They are void in the state of nature, upon any reasonable suspicion; but when there is a common power to compel observance, and thus no more room for fear, they are valid. Even when fear makes them invalid it must have arisen after they were made, else it should have kept them from being made. Transference of a right implies transference, as far as may be, of the means to its enjoyment. With beasts there is no covenant, because no proper mutual understanding. With God also none, except through special revelation, or with his lieutenant in his name. Anything vowed contrary to the law of nature is vowed in vain; if the thing vowed is commanded by the law of nature, the law, not the vow, binds. Covenants are of things possible and future. Men are freed from them by performance, or forgiveness, which is restitution of liberty. He pronounces covenants extorted by fear to be binding alike in the state of mere nature and in commonwealths, if once entered into. A former covenant makes void a later. Any covenant not to defend one's self from force by force is always void; as said above, there is no transference possible of right to defend one's self from death, wounds, imprisonment, &c. So no man is obliged to accuse himself, or generally to give testimony where from the nature of the case it may be presumed to be corrupted. Accusation upon torture is not to be reputed as testimony. At the close he remarks upon oaths. He finds in human nature two imaginable helps to strengthen the force of words, otherwise too weak to insure the performance of covenants. One of these—pride in appearing not to need to break one's word, he supposes too rare to be presumed upon. The other, fear, has reference either to power of spirits invisible, or of men. In the state of nature, it is the first kind of fear—a man's religion—that keeps him to his promises. An oath is therefore swearing to perform by the God a man fears. But to the obligation itself it adds nothing.

Of the other Laws of Nature, treated in Chap. XV., the third, that men perform their covenants made, opens up the discussion of Justice. Till rights have been transferred and covenants made there is no justice or injustice; injustice is no other than the non-performance of covenants. Further, justice (and also property) begins only where a regular coercive power is constituted, because otherwise there is cause for fear, and fear, as has been seen, makes covenants invalid. Even the scholastic definition of justice recognizes as much; for there can be no constant will of giving to every man his own, when, as in the state of nature, there is no own. He argues at length against the idea that justice, i.e., the keeping of covenants, is contrary to reason; repelling three different arguments. (1) He demonstrates that it cannot be reasonable to break or keep covenants according to benefit supposed to be gained in each case, because this would be a subversion of the principles whereon society is founded, and must end by depriving the individual of its benefits, whereby he would be left perfectly helpless. (2) He considers it frivolous to talk of securing the happiness of heaven by any kind of injustice, when there is but one possible way of attaining it, viz., the keeping of covenants. (3) He warns men (he means his contemporaries) against resorting to the mode of injustice known as rebellion to gain sovereignty, from the hopelessness of gaining it and the uncertainty of keeping it. Hence he concludes that justice is a rule of reason, the keeping of covenants being the surest way to preserve our life, and therefore a law of nature. He rejects the notion that laws of nature are to be supposed conducive, not to the preservation of life on earth, but to the attainment of eternal felicity; whereto such breach of covenant as rebellion may sometimes be supposed a means. For that, the knowledge of the future life is too uncertain. Finally, he consistently holds that faith is to be kept with heretics and with all that it has once been pledged to.

He goes on to distinguish between justice of men or manners, and justice of actions; whereby in the one case men are just or righteous, and in the other, guiltless. After making the common observation that single inconsistent acts do not destroy a character for justice or injustice, he has this: 'That which gives to human actions the relish of justice, is a certain nobleness or gallantness of courage rarely found, by which a man scorns to be beholden for the contentment of his life to fraud, or breach of promise.' Then he shows the difference between injustice, injury, and damage; asserts that nothing done to a mail with his consent can be injury; and, rejecting the common mode of distinguishing between commutative and distributive justice, calls the first the justice of a contractor, and the other an improper name for just distribution, or the justice of an arbitrator, i.e., the act of defining what is just—equivalent to equity, which is itself a law of nature.

The rest of the laws follow in swift succession. The 4th recommends Gratitude, which depends on antecedent grace instead of covenant. Free-gift being voluntary, i.e., done with intention of good to one's self, there will be an end to benevolence and mutual help, unless gratitude is given as compensation.

The 5th enjoins Complaisance; a disposition in men not to seek superfluities that to others are necessaries. Such men are sociable.