The Methods of Ethics

by Henry Sidgwick

We have hitherto spoken of intentional wrong-doing: but positive law awards punishment also for harm that is due to rashness or negligence; and the justification of this involves us in further difficulties. Some jurists seem to regard rashness and negligence as positive states of mind, in which the agent consciously refuses the attention or reflection which he knows he ought to give; and no doubt this sort of wilful recklessness does sometimes occur, and seems as properly punishable as if the resulting harm had been positively intended. But the law as actually administered does not require evidence that this was the agent’s state of mind (which indeed in most cases it would be impossible to give): but is content with proof that the harm might have been prevented by such care as an average man would have shown under the circumstances. And most commonly by ‘carelessness’ we simply mean a purely negative psychological fact, i.e. that the agent did not perform certain processes of observation or reflection; it is therefore at the time strictly involuntary, and so scarcely seems to involve ill-desert. It may be said perhaps that though the present carelessness is not blameworthy, the past neglect to cultivate habits of care is so. But in many individual instances we cannot reasonably infer even this past neglect; and in such cases the utilitarian theory of punishment, which regards it as a means of preventing similar harmful acts in the future, seems alone applicable. Similar difficulties arise, as was before hinted (p. [282]), in determining the limits within which Reparation is due; that is, on the view that it is not incumbent on us to make compensation for all harm caused by our muscular actions, but only for harm which—if not intentional—was due to our rashness or negligence.

The results of this examination of Justice may be summed up as follows. The prominent element in Justice as ordinarily conceived is a kind of Equality: that is, Impartiality in the observance or enforcement of certain general rules allotting good or evil to individuals. But when we have clearly distinguished this element, we see that the definition of the virtue required for practical guidance is left obviously incomplete. Inquiring further for the right general principles of distribution, we find that our common notion of Justice includes—besides the principle of Reparation for injury—two quite distinct and divergent elements. The one, which we may call Conservative Justice, is realised (1) in the observance of Law and Contracts and definite understandings, and in the enforcement of such penalties for the violation of these as have been legally determined and announced; and (2) in the fulfilment of natural and normal expectations. This latter obligation, however, is of a somewhat indefinite kind. But the other element, which we have called Ideal Justice, is still more difficult to define; for there seem to be two quite distinct conceptions of it, embodied respectively in what we have called the Individualistic and the Socialistic Ideals of a political community. The first of these takes the realisation of Freedom as the ultimate end and standard of right social relations: but on examining it closer we find that the notion of Freedom will not give a practicable basis for social construction without certain arbitrary[230] definitions and limitations: and even if we admit these, still a society in which Freedom is realised as far as is feasible does not completely suit our sense of Justice. Prima facie, this is more satisfied by the Socialistic Ideal of Distribution, founded on the principle of requiting Desert: but when we try to make this principle precise, we find ourselves again involved in grave difficulties; and similar perplexities beset the working out of rules of Criminal Justice on the same principle.

CHAPTER VI
LAWS AND PROMISES

§ 1. In the discussion of Justice the moral obligations of obedience to Law and observance of Contract have been included, and have, indeed, appeared to be the most definite part of the complex system of private duties commonly included under that term. At the same time, as we have seen, there are some laws, the violation of which does not interfere with the rights of others, and therefore has not the characteristics of an act of Injustice. While again, the duty of Fidelity to promises is also commonly conceived as independent of any injury that might be done to the promisee by breaking it: for (e.g.) men ordinarily judge that promises to the dead, though they are beyond the reach of injury, ought to be kept: indeed, some would regard them as even more sacred than promises made to the living. It seems therefore desirable to examine the propositions ‘that Law ought to be obeyed’ and ‘that promises ought to be kept,’ considered as independent principles.

To begin with the former: how are we to ascertain what the Law is which, as is commonly thought, we are morally bound to obey, as such? It is plain that we cannot here distinguish Legal from other rules by considering the sanctions actually attached to them, as we had occasion to do in a previous chapter.[231] For commands issued by rebels and usurpers are held to have as such no general bindingness, though they may be enforced by judicial penalties; it would be generally agreed that so far as it is our duty to obey such commands this is solely in order to avoid the greater evils which might result to ourselves and others from our disobedience; and that the extent of such a duty must be determined by considerations of expediency. Nor, again, can we say that all commands even of a legitimate sovereign are to be regarded as Laws in the sense in which the term must be taken in the proposition that ‘laws ought to be obeyed’: since we all recognise that a rightful sovereign may command his subjects to do what is wrong, and that it is then their duty to disobey him. It seems therefore that for our present purpose we must define Laws to be Rules of Conduct laid down by a Rightful Authority, commanding within the limits of its authority.

There are therefore two questions to be settled, if the proposition that laws ought to be obeyed is to furnish practical guidance: (1) how we are to distinguish the Rightful Lawmaker—whether individual or body, and (2) how we are to ascertain the limits of this lawmaker’s authority. The questions should be distinguished; but, as we shall see, they can only be partially separated. Beginning with the first question, we may assume that the authority to make laws resides in some living man or men. No doubt in some societies, at some stages of their development, the whole or a part of the code of laws habitually observed, or at least recognised as binding, has been believed to be of divine or semi-divine institution; or perhaps from mere antiquity to possess a sanctity superior to that of any living authority, so as to be not legitimately alterable. But we hardly find this view in the Common Sense of civilised Europe, upon which we are now reflecting: at any rate in our societies there is not thought to be any portion of the definite prescriptions of positive law which, in virtue of its origin, is beyond the reach of alteration by any living authority.

Where then is this authority to be found?

In the answers commonly given to this question, the conflict between the Ideal and the Traditional or Customary, which has perplexed us in seeking the definition of Justice, meets us again in an even more complicated form. For not only do some say that obedience is always due to the traditionally legitimate authority in any country, while others maintain that an authority constituted in accordance with certain abstract principles is essentially legitimate, and that a nation has a right to claim that such an authority shall be established, even at the risk of civil strife and bloodshed: but often, too, the authority actually established is not even traditionally legitimate. So that we have to distinguish three claims to authority, each of which may come into conflict with either of the other two: (1) that of the Government held to be ideally or abstractly right, and such as ought to be established: (2) that of the Government de jure, according to the constitutional traditions in any given country: and (3) that of the de facto Government.

§ 2. Let us begin by considering the Ideal. Here I do not propose to consider all views as to the right constitution of supreme authority which speculative thinkers have put forward; but only such as have a prima facie claim to express the Common Sense of mankind on the subject. Of these the most important, and the most widely urged and admitted, is the principle that the Sovereign in any community can only be rightly constituted by the Consent of the Subjects. This, as was noticed in the preceding chapter, is involved in the adoption of Freedom as the ultimate end of political order: if no one originally owes anything to another except non-interference, he clearly ought only to be placed in the relation of Subject to Sovereign by his own consent. And thus, in order to reconcile the original right of Freedom with the actual duty of Law-observance, some supposition of a social compact appears necessary; by means of which Obedience to Law becomes merely a special application of the duty of keeping compacts.