Ethics

by John Dewey; James Hayden Tufts

§ 2. DEVELOPMENT OF CIVIL RIGHTS

Contrast of Primitive with Present Justice.—The significance of the accomplishments and the defects of the present administration of law may be brought out by a sketch of its contrast with primitive methods. In savage and barbarian society, on account of the solidarity of the kin-group, any member of the group is likely to be attacked for the offense of any other (see p. 28). He may not have participated in the act, or have had complicity in planning it. His guilt is that the same blood runs in his veins.[204] The punitive attack, moreover, is made directly and promiscuously by the injured man and by his blood-relatives; it is made in the heat of passion or in the vengeance of stealth as custom may decree. Says Hearn, the state "did not interfere in the private quarrels of its citizens. Every man took care of his own property and his own household, and every hand guarded its own head. If any injury were done to any person, he retaliated, or made reprisals, or otherwise sought redress, as custom prescribed."[205] The reprisal may itself have called for another, and the blood-feud was on. In any case, the state of affairs was one literally, not metaphorically, described as "private war."

Changes Now Effected.—This state of affairs has been superseded by one in which a third, a public and impartial authority (1) takes cognizance of offenses against another individual as offenses against the commonwealth; (2) apprehends the supposed offender; (3) determines and applies an objective standard of judgment, the same for all, the law; (4) tries the supposed offender according to rules of procedure, including rules of evidence or proof, which are also publicly promulgated; and (5) takes upon itself the punishment of the offender, if found guilty. The history of this change, important and interesting as it is, does not belong here. We are concerned here only with the relation of public authority, public law, and public activity to the development of the freedom of the individual on one side and of his responsibility on the other.[206] We shall point out in a number of particulars that the evolution of freedom and responsibility in individuals has coincided with the evolution of a public and impartial authority.

1. Good and Evil as Quasi-Physical.—There are two alternatives in the judgment of good and evil. (1) They may be regarded as having moral significance, that is, as having a voluntary basis and origin. (2) Or they may be considered as substantial properties of things, as a sort of essence diffused through them, or as a kind of force resident in them, in virtue of which persons and things are noxious or helpful, malevolent or kindly. Savage tribes, for instance, cannot conceive either sickness or death as natural evils; they are attributed to the malicious magic of an enemy. Similarly the evil which follows from the acts of a man is treated as a sign of some metaphysical tendency inherent in him. Some men bring bad luck upon everything and everybody they have anything to do with. A curse is on their doings. No distinction is made between such evils and those which flow from intention and character. The notion of the moral or voluntary nature of good and evil hardly obtains. The quasi-physical view, bordering upon the magical, prevails. The result is that evil is thought of as a contagious matter, transmitted from generation to generation, from class or person to class or person; and as something to be got rid of, if at all, by devices which are equally physical. Natural evils, plagues, defeats, earthquakes, etc., are treated as quasi-moral, while moral evils are treated as more than half physical. Sins are infectious diseases, and natural diseases are malicious interferences of a human or divine enemy. Morals are materialized, and nature is moralized or demoralized.[207]

Now it is hardly necessary to point out the effect of such conceptions in restricting the freedom and responsibility of the individual person. Man is hemmed in as to thought and action on all sides by all kinds of mysterious forces working in unforeseeable ways. This is true enough in his best estate. When to this limitation is added a direction of energy into magical channels, away from those controllable sources of evil which reside in human disposition, the amount of effective freedom possible is slight. This same misplacing of liability holds men accountable for acts they have not committed, because some magic tendency for evil is imputed to them. Famine, pestilence, defeat in war are evils to be remedied by sacrifice of goods or persons or by ritualistic ceremonies; while the remediable causes of harm in human ignorance and negligence go without attention.

2. Accident and Intention.—Under such circumstances, little distinction can be made between the good and evil which an individual meant to do and that which he happened to do. The working presumption of society, up to a comparatively late stage of its history, was that every harmful consequence is an evidence of evil disposition in those who were in any way concerned. This limitation of freedom was accompanied by a counterpart limitation of responsibility. Where no harm actually resulted, there was thought to be no harmful intent. Animals and even inanimate objects which do injury are baleful things and come under disapprobation and penalty. Even in civilized Athens there was a survival of the practice of holding inanimate things liable. If a tree fell on a man and killed him, the tree was to be brought to trial, and after condemnation cast beyond the civic borders, i.e., outlawed.[208] Anyhow, the owner of an offending article was almost always penalized. Westermarck,[209] with reference to the guilt of animals, cites an instance, dated in 1457, "when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child; the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother." When sticks, stones, and animals are held accountable for evil results, there is little chance of discriminating intent and accident or misadventure in the case of personal agents. "The devil himself knoweth not the intent, the 'thought' of man" was the mediæval maxim; all that can be certain is that harm has come and the one who caused it must suffer; or else no overt harm has come and no one is to blame.[210] Harm has been done and any one concerned, even remotely, in the injurious situation, is ex officio guilty; it will not do to take chances. The remoteness of an implication which may involve liability is seen in the condition of English law in the thirteenth century: "At your request I accompany you when you are about your own affairs: my enemies fall upon and kill me: you must pay for my death. You take me to see a wild-beast show, or that interesting spectacle a madman: beast or madman kills me; you must pay. You hang up your sword; some one else knocks it down so that it cuts me; you must pay."[211] Only gradually did intent clearly evolve as the central element in an act, and thus lead to the idea of a voluntary or free act.

That the limitation upon the side of responsibility was equally great is obvious. If a man is held liable for what he did not and could not foresee or desire, there is no ground for his holding himself responsible for anticipating the consequences of his acts, and forming his plans according as he foresees. This comes out clearly in the obverse of what has just been said. If no harm results from a willful attempt to do evil, the individual is not blamed. He goes scot free. "An attempt to commit a crime is no crime."[212]

3. Character and Circumstances.—Even in law, to say nothing of personal moral judgments, we now almost as a matter of course take into account, in judging an agent's intent, both circumstances, and character as inferred from past behavior. We extend our view of consequences, taking into account in judging the moral quality of a particular deed, consequences its doer is habitually found to effect. We blame the individual less for a deed if we find it contrary to his habitual course. We blame him more, if we find he has a character given to that sort of thing. We take into account, in short, the permanent attitude and disposition of the agent. We also discriminate the conditions and consequences of a deed much more carefully. Self-defense, protection of others or of property, come in as "extenuating circumstances"; the degree of provocation, the presence of immediate impulsive fear or anger, as distinct from a definitely formed, long-cherished idea, are considered. The questions of first or of repeated offense, of prior criminality or good behavior, enter in. Questions of heredity, of early environment, of early education and opportunity are being brought to-day into account.

We are still very backward in this respect, both in personal and in public morals; in private judgment and in legal procedure and penalty. Only recently have we, for example, begun to treat juvenile delinquents in special ways; and the effort to carry appropriate methods further meets with strong opposition and the even stronger inertia of indifference. It is regarded by many good people as lowering the bars of responsibility to consider early training and opportunity, just as in its day it was so regarded to plead absence of intent in cases where evil had actually resulted. It is not "safe" to let any one off from the rigor of the law. The serious barrier, now as earlier, is upon the scientific or intellectual side. There was a time when it did not seem feasible to pass upon intent; it was hidden, known only to God. But we have now devised ways, adequate in principle, though faulty in detail, to judge immediate intent; similarly, with the growth of anthropology, psychology, statistics, and the resources of publicity in social science, we shall in time find it possible to consider the effects of heredity, early environment, and training upon character and so upon intent. We shall then regard present methods of judging intent to be almost as barbarous as we now consider the earlier disregard of accident and provocation. Above all we shall learn that increased, not relaxed responsibility, comes with every increase of discrimination of causes lying in character and conditions.[213]