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.