A Handbook of Ethical Theory

by George Stuart Fullerton

(a) The laws protect life and limb. Much progress has been made in this respect in the last centuries past. I own no coat of mail; and, when I walk abroad, I neither carry a sword nor surround myself with armed retainers.

(b) They protect private property. To be sure, the "promoter" may prey upon my simplicity; and the state itself does not recognize that I have any absolute right to my property, any more than it recognizes that I have an absolute right to my life.

It may send me into the trenches. It may take from me what it will in the form of taxes. It may even forbid me to increase my income by using my property in ways which will make me insupportable to my neighbors. But it will not allow my neighbor, who is stronger than I, to take possession of my house without form of law. It will even allow me to dispose of my property by will, after my death.

I suggest that those, to whom this right appears to be rooted in the very nature of things, and not to be a creation of the State, called into being at the behest of the social will in a certain stage of its development, should read and re-read what Sir Henry Maine has to say about testamentary succession, in his wonderful little book on "Ancient Law." [Footnote: See chapters vi and vii.]

The State has not always treated a man as an individual, directly and personally responsible to the state. It has treated him as a member of a family or some other group; a being endowed, by virtue of his position, with certain rights, and burdened with certain duties. A being who, when he drops out of being, is automatically replaced by someone else who is clothed upon with both his rights and his responsibilities.

Our conceptions have changed. The lesser groups within the State have to some degree lost their cohesion, and the bond between the individual, as such, and the state has been correspondingly strengthened. But many traces of the old conception make themselves apparent. The law compels me to provide for my wife and children; and, if I die intestate, the law by no means assumes that my property is left without a claimant.

Have we been moving in the right direction, as judged by the standard of the Rational Social Will? We think so. But it is well to bear in mind what Herodotus said about the madness of Cambyses, and the prejudice men have in favor of their own customs. No state is a mere aggregate of unrelated individuals. Men are set in families, and the State seems to be composed of groups within groups. How far the State should recognize the will of the individual, as over against the claims of the lesser groups to which he may belong, is a nice question for the Rational Social Will to settle.

(c) The law must regulate marriage and divorce. Matters so vital to the interests of society cannot be left at the mercy of the egoistic whims of the individual. But to what law shall we have recourse? It seems highly irrational to have forty-eight independent authorities upon this subject within the limits of a single nation. And, if we turn the matter over to the churches, we discover that we have committed it to the care of one hundred and eighty, or more, sects. Add to this, that a state of any sort cannot be set upon its feet without some difficulty, while any enterprising man or woman can call a sect into existence any day. There is a new adherent for sectarian eccentricities born every minute. Surely, here is a field for the activities of the Rational Social Will.

(d) To paternalism of some sort the modern State, as law-giver, seems hopelessly pledged. If we ignore this we are simply closing our eyes. The State seems to be justified in educating its citizens, in protecting children and women against exploitation, in protecting the working classes, in stamping out infectious diseases. We are not even allowed to expectorate when and where we will, a privilege enjoyed by the merest savage.

(e) In one respect the paternalism of our own State has lagged behind that of certain others. We do little to secure to a man a decent privacy, or to safeguard his personal dignity. The newspaper reporter is allowed to rage unchecked, to unearth scandals in private families, and to cause great pain by printing the names of individuals.