The Methods of Ethics

by Henry Sidgwick

In what way, then, are the terms of this fundamental compact to be known? No one now maintains the old view that the transition from the ‘natural’ to the ‘political’ state actually took place by means of an “original contract,” which conferred indelible legitimacy on some particular form of social organisation. Shall we say, then, that a man by remaining a member of a community enters into a ‘tacit undertaking’ to obey the laws and other commands imposed by the authority generally recognised as lawful in that community? In this way however the Ideal lapses into the Customary: and the most unlimited despotism, if established and traditional, might claim to rest on free consent as well as any other form of government: so that the principle of abstract Freedom would lead to the justification of the most unqualified concrete tyranny and servitude; and thus our theory would end by riveting men’s chains under pretence of exalting their freedom. If to avoid this result, we suppose that certain ‘Natural Rights’ are inalienable—or tacitly reserved in the tacit compact—and that laws are not strictly legitimate which deprive a man of these, we are again met by the difficulty of deducing these inalienable rights from any clear and generally accepted principles. For instance, as we have seen, a widely accepted opinion is that all such rights may be summed up in the notion of Freedom; but we have also seen that this principle is ambiguous, and especially that the right of private property as commonly recognised cannot be clearly deduced from it; and if so it would certainly be most paradoxical to maintain that no government can legitimately claim obedience for any commands except such as carry out the principle of protecting from interference the Freedom of the individuals governed. It has been thought that we can avoid this difficulty by constituting the supreme organ of government so that any law laid down by it will always be a law to which every person called on to obey it will have consented personally or by his representatives: and that a government so constituted, in which—to adopt Rousseau’s phrase—every one “obeys himself alone,” will completely reconcile freedom and order. But how is this result to be attained? Rousseau held that it could be attained by pure direct democracy, each individual subordinating his private will to the “general will” of the sovereign people of which all are equally members. But this “general will” must be practically the will of the majority: and it is paradoxical to affirm that the freedom and natural rights of a dissentient minority are effectively protected by establishing the condition that the oppressors must exceed the oppressed in number. Again, if the principle be absolute it ought to apply to all human beings alike: and if to avoid this absurdity we exclude children, an arbitrary line has to be drawn: and the exclusion of women, which even those who regard the suffrage as a natural right are often disposed to maintain, seems altogether indefensible. And to suppose—as some have done—that the ideal of “obeying oneself alone” can be even approximately realised by Representative Democracy, is even more patently absurd. For a Representative assembly is normally chosen only by a part of the nation, and each law is approved only by a part of the assembly: and it would be ridiculous to say that a man has assented to a law passed by a mere majority of an assembly against one member of which he has voted.

But, again, to lay down absolutely that the laws of any community ought to express the will of the majority of its members seems incompatible with the view so vigorously maintained by Socrates and his most famous disciples, that laws ought to be made by people who understand law-making. For though the majority of a representative assembly in a particular country at a particular time may be more fit to make laws for their country than any set of experts otherwise selected, it is certainly not self-evident that this will be universally the case. Yet surely the Socratic proposition (which is merely a special application of the principle noticed in the latter part of the preceding chapter, ‘that function should be allotted to the fittest’) has as much claim to be considered a primary intuition as the one that we have been discussing. Indeed, the secular controversy between Aristocracy and Democracy seems ultimately reducible to a conflict between those two principles: a conflict of which it is impossible to find a solution, so long as the argument remains in the a priori region.

§ 3. However, to discuss this exhaustively would carry us too far beyond the range of Ethics proper: but we may perhaps conclude that it is impossible to elicit from Common Sense any clear and certain intuitions as to the principles on which an ideal constitution should be constructed. And there is an equal want of agreement as to the intrinsic lawfulness of introducing such a constitution in violation of the traditional and established order in any community. For some think that a nation has a natural right to a government approximately conformed to the ideal, and that this right may be maintained by force in the last resort. Others, however, hold that, though the ideal polity may rightly be put forward and commended, and every means used to promote its realisation which the established government in any country permits,—still, rebellion can never be justifiable for this purpose alone. While others,—perhaps the majority,—would decide the question on grounds of expediency, balancing the advantages of improvement against the evils of disorder.

But further, as we saw, it is not so easy to say what the established government is. For sometimes an authority declared by law to be illegitimate issues ordinances and controls the administration of justice. The question then arises, how far obedience is due to such an authority. All are agreed that usurpation ought to be resisted; but as to the right behaviour towards an established government which has sprung from a successful usurpation, there is a great difference of opinion. Some think that it should be regarded as legitimate, as soon as it is firmly established: others that it ought to be obeyed at once, but under protest, with the purpose of renewing the conflict on a favourable opportunity: others think that this latter is the right attitude at first, but that a usurping government, when firmly established, loses its illegitimacy gradually, and that it becomes, after a while, as criminal to rebel against it as it was originally to establish it. And this last seems, on the whole, the view of Common Sense; but the point at which the metamorphosis is thought to take place can hardly be determined otherwise than by considerations of expediency.

But again, it is only in the case of an absolute government, where customary obedience is unconditionally due to one or more persons, that the fundamental difficulties of ascertaining the legitimacy of authority are of the simple kind just discussed. In a constitutionally governed state numerous other moral disagreements arise. For, in such a state, while it is of course held that the sovereign is morally bound to conform to the constitution,[232] it is still disputed whether the subjects’ obligation to obedience is properly conceived as conditional upon this conformity: and whether they have the moral right (1) to refuse obedience to an unconstitutional command; and (2) even to inflict on the sovereign the penalty of rebellion for violating the constitution. Again, in determining what the constitutional obligations really are we find much perplexity and disagreement, not merely as to the exact ascertainment of the relevant historical facts but as to the principles on which these facts ought to be treated. For the various limitations of sovereign authority comprised in the constitution have often been originally concessions extorted by fear from a sovereign previously absolute; and it is doubted how far such concessions are morally binding on the sovereign from whom they were wrested, and still more how far they are binding on succeeding sovereigns. Or, vice versâ, a people may have allowed liberties once exercised to fall into disuse; and it is doubted whether it retains the right of reclaiming them. And, generally, when a constitutional rule has to be elicited from a comparison of precedents, it is open to dispute whether a particular act of either party should be regarded as a constitutive precedent or as an illegitimate encroachment. And hence we find that, in constitutional countries, men’s view of what their constitution traditionally is has often been greatly influenced by their view of what it ideally ought to be: in fact, the two questions have rarely been kept quite distinct.

§ 4. But even in cases where we can ascertain clearly to what authority obedience is properly due, further difficulties are liable to arise when we attempt to define the limits of such obedience. For in modern society, as we have seen, all admit that any authority ought to be disobeyed which commands immoral acts; but this is one of those tautological propositions, so common in popular morality, which convey no real information; the question is, what acts there are which do not cease to be immoral when they have been commanded by a rightful authority. There seems to be no clear principle upon which these can be determined. It has sometimes been said that the Law cannot override definite duties; but the obligation of fidelity to contract is peculiarly definite, and yet we do not consider it right to fulfil a contract of which a law, passed subsequently to the making of the contract, has forbidden the execution. And, in fact, we do not find any practical agreement on this question, among persons who would not consciously accept the utilitarian method of deciding it by a balance of conflicting expediences. For some would say that the duties of the domestic relations must yield to the duty of law-observance, and that (e.g.) a son ought not to aid a parent actively or passively in escaping the punishment of crime: while others would consider this rule too inhuman to be laid down, and others would draw the line between assistance and connivance. And similarly, when a rightly constituted government commands acts unjust and oppressive to others; Common Sense recoils from saying either that all such commands ought to be obeyed or that all ought to be disobeyed; but—apart from utilitarian considerations—I can find no clear accepted principle for distinguishing those unjust commands of a legitimate government which ought to be obeyed from those which ought not to be obeyed. Again, some jurists hold that we are not strictly bound to obey laws, when they command what is not otherwise a duty, or forbid what is not otherwise a sin; on the ground that in the case of duties prescribed only by positive laws, the alternatives of obeying or submitting to the penalty are morally open to us.[233] Others, however, think this principle too lax; and certainly if a widespread preference of penalty to obedience were shown in the case of any particular law, the legislation in question would be thought to have failed. Nor, on the other hand, does there seem to be any agreement as to whether one is bound to submit to unjust penalties.

Since, then, on all these points there is found to be so much difference of opinion, it seems idle to maintain that there is any clear and precise axiom or first principle of Order, intuitively seen to be true by the common reason and conscience of mankind. There is, no doubt, a vague general habit of obedience to laws as such (even if bad laws), which may fairly claim the universal consensus of civilised society: but when we try to state any explicit principle corresponding to this general habit, the consensus seems to abandon us, and we are inevitably drawn into controversies which seem to admit of no solution except that offered by the utilitarian method.[234]

§ 5. We have next to treat of Good Faith, or Fidelity to Promises; which it is natural to consider in this place, because, as has been seen, the Duty of Law-observance has by some thinkers been based upon a prior duty of fulfilling a contract. The Social Contract however, as above examined, seems at best merely a convenient fiction, a logical artifice, by which the mutual jural relations of the members of a civilised community may be neatly expressed: and in stating the ethical principles of Common Sense, such a fiction would seem to be out of place. It must, however, be allowed that there has frequently been a close historical connection between the Duty of Law-observance and the duty of Good Faith. In the first place, a considerable amount of Constitutional Law at least, in certain ages and countries, has been established or confirmed by compacts expressly made between different sections of the community; who agree that for the future government shall be carried on according to certain rules. The duty of observing these rules thus presents itself as a Duty of Fidelity to compact. Yet more is this the case, when the question is one of imposing not a law, but a law-giver; whose authority is strengthened by the exaction of an oath of allegiance from his subjects generally or a representative portion of them. Still, even in such cases, it can only be by a palpable fiction that the mass of the citizens can be regarded as bound by an engagement which only a few of them have actually taken.

We may begin our examination of the duty of Keeping Promises by noticing that some moralists have classified or even identified it with Veracity. From one point of view there certainly seems to be an analogy between the two; as we fulfil the obligations of Veracity and Good Faith alike by effecting a correspondence between words and facts—in the one case by making fact correspond with statement, and in the other by making statement correspond with fact. But the analogy is obviously superficial and imperfect; for we are not bound to make our actions correspond with our assertions generally, but only with our promises. If I merely assert my intention of abstaining from alcohol for a year, and then after a week take some, I am (at worst) ridiculed as inconsistent: but if I have pledged myself to abstain, I am blamed as untrustworthy. Thus the essential element of the Duty of Good Faith seems to be not conformity to my own statement, but to expectations that I have intentionally raised in others.

On this view, however, the question arises whether, when a promise has been understood in a sense not intended by the promiser, he is bound to satisfy expectations which he did not voluntarily create. It is, I think, clear to Common Sense that he is so bound in some cases, if the expectation was natural and such as most men would form under the circumstances: but this would seem to be one of the more or less indefinite duties of Justice, and not properly of Good Faith, as there has not been, strictly speaking, any promise at all. The normal effect of language is to convey the speaker’s meaning to the person addressed (here the promiser’s to the promisee), and we always suppose this to have taken place when we speak of a promise. If through any accident this normal effect is missed, we may say that there is no promise, or not a perfect promise.