Ethics

by John Dewey; James Hayden Tufts

4. Intellectual Incapacity and Thoughtlessness.—With increasing recognition of character as the crucial element in voluntary action, we now take into account such matters as age, idiocy, and insanity as factors of judgment. But this also has been a slow growth. If we take the one question of insanity, for example, in 1724 exculpation for harm resulting from a madman's acts required that the person excused "be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast." At the beginning of the nineteenth century, the excuse was no longer that of being such a raving lunatic as is here implied; but of knowing right and wrong from each other in the abstract. By a celebrated case in 1843, the rule was changed, in English law, to knowledge of the difference between right and wrong in the particular case. Further advance waits upon progress of science which will make it more possible to judge the specific mental condition of the person acting; and thus do away with the abuses of the present system which tend, on the one hand, to encourage the pleading of insanity where none may exist; and, on the other hand (by a rigid application of a technical rule), to condemn persons really irresponsible.[214] Popular judgment still inclines to impute clear and definite intention on the basis of results; and to ignore conditions of intellectual confusion and bewilderment, and justifies itself in its course on the ground that such is the only "safe" course.[215]

Responsibility for Thoughtlessness.—But the release from responsibility for deeds in which the doer is intellectually incapacitated, is met on the other side by holding individuals of normal mental constitution responsible for some consequences which were not thought of at all. We even hold men accountable for not thinking to do certain acts. The former are acts of heedlessness or carelessness, as when a mason on top of a building throws rubbish on to a street below which injures some one, without any thought on his part of this result, much less any deliberate desire to effect it. The latter are acts of negligence, as when, say, an engineer fails to note a certain signal. In such cases even when no harm results, we now hold the agent morally culpable. Similarly we blame children for not thinking of the consequences of their acts; we blame them for not thinking to do certain things at a certain time—to come home when told, and so on. This is not merely a matter of judgment by others. The more conscientious a person is, the more occasions he finds to judge himself with respect to results which happened because he did not think or deliberate or foresee at all—provided he has reason to believe he would have thought of the harmful results if he had been of a different character. Because we were absorbed in something else we did not think, and while, in the abstract, this something else may have been all right, in the concrete it may be proof of an unworthy character. The very fact that we permitted ourselves to become so absorbed that the thought of an engagement, or of an opportunity to help some friend whom we knew to be in need, did not occur to us, is evidence of a selfish, i.e., inconsiderate, character.

The case seems paradoxical and is crucial. Others hold us responsible because we were irresponsible in action and in order that we may become responsible. We blame ourselves precisely because we discover that an unconscious preference for a private or exclusive good led us to be careless of the good of others. The effect (if the regret is genuine, not simulated) is to develop a habit of greater thoughtfulness in the future. Less and less do men accept for others or for themselves ignorance as an excuse for bad consequences, when the ignorance itself flows from character. Our chief moral business is to become acquainted with consequences. Our moral character surely does not depend in this case, then, upon the fact that we had alternatives clearly in mind and chose the worse; the difficulty is that we had only one alternative in mind and did not consciously choose at all. Our freedom lies in the capacity to alter our mode of action, through having our ignorance enlightened by being held for the neglected consequences when brought to accountability by others, or by holding ourselves accountable in subsequent reflection. Cases of careless acts and of acts omitted through negligence are thus crucial for any theory of freedom and responsibility. Either we are all wrong in blaming ourselves or others in such cases, because there is no free or voluntary element in them; or else there is responsibility when deliberate comparison of alternatives and conscious preference are absent. There is responsibility for the absence of deliberation. Nature does not forbear to attach consequences to acts because of the ignorance of the one who does the deed. The evil results that follow in the wake of a thoughtless act are precisely the reminders that make one take thought the next time. Similarly, to be held liable by others or to take ourselves to task for forgetfulness, inconsiderateness, and negligence, is the way in which to build up conscientious foresight and deliberate choice. The increased complexity and danger of modern industrial activity, the menace of electric power, of high explosives, of railway trains and trolley cars, of powerful machines, have done much to quicken recognition that negligence may be criminal, and to reawaken the conviction of Greek thought that thoughtless ignorance, where knowledge is possible, is the worst of evils. The increased interdependence of men, through travel and transportation, collective methods of production, and crowding of population in cities, has widened the area of the harm likely to result from inconsiderate action, and has strengthened the belief that adequate thoughtfulness is possible only where there is sympathetic interest in others.

5. The Conflict of Form and Substance.—The technical forms of procedure concerned in establishing and remedying rights were, for long ages, more important than the substantial ends by which alone the forms may be justified. Any effort for a remedy was nullified if the minutiæ of complicated formulæ (largely magical or ritualistic in their origin) were deviated from. Almost any obligation might be escaped by some quirk or turn in some slight phrase or motion, without which no agreement was binding, so sacramental was the importance of the very words. In early days the rigidity of these semi-ritualistic performances doubtless served to check arbitrary and reckless acts, and to impress the sense of the value of a standard.[216] But they survived as "rudimentary organs" long after they had done their work in this respect; and after they had been eliminated from legal procedure they survived as habits of judging conduct.

Survivals of Spirit of Individualistic Litigation.—The fact that the procedure of justice originated as methods of supplying impartial umpires for conflicts waged between individuals, has had serious consequences. It has had indeed the desirable consequence of quickening men to the perception of their rights and to their obligation as social members to maintain them intact. But it has also had the undesirable result of limiting the function of the public interest to the somewhat negative one of securing fair play between contentious individuals. The battle is not now fought out with fists or spears or oaths or ordeals: but it is largely a battle of wits and of technical resources between the opposite parties and their lawyers, with the State acting the part of a benevolently neutral umpire. The ignorant, the poor, the foreign, and the merely honest are almost inevitably at a discount in this battle.[217] And, in any case, the technical aspect of justice, that is, the question of proper forms gets out of true perspective. The "legally-minded" man is likely to be one with whom technical precedents and rules are more important than the goods to be achieved and the evils to be avoided. With increase of publicity and scientific methods of determining and interpreting facts, and with a public and professional criticism which is impartial and wise, we may anticipate that the supremacy of the general good will be increasingly recognized in cases of litigation, and that the courts, as organs of public justice, will take a more active and substantial part in the management of all legal controversies.[218]

Legal and Moral.—But, at the best, definitions of rights and of remedial procedures only (1) lay down general, not individual conditions, and (2), so far as they are strict, register precedent and custom rather than anticipate the novel and variable. They can state what shall not be done. Except in special cases, they cannot state what shall be done, much less the spirit and disposition in which it shall be done. In their formulations, they present a sort of minimum limit of morality not to be overstepped by those inclined to ill. They throw little light on the positive capacities and responsibilities of those who are socially minded. They have a moral purpose: they free energy from the friction attendant upon vague, obscure, and uncertain situations, by enlightening men as to what they may do and how they may do it. But the exaggeration of form at the expense of the substantial end and good, leads to misplaced emphasis and false perspective. The rules are treated as ends; they are employed not to get insight into consequences, but as justifying, apart from consequences, certain acts. The would-be conscientious agent is led into considering goodness as a matter of obeying rules, not of fulfilling ends. The average individual conceives he has satisfied the requirements of morality when he has conformed to the average level of legal definition and prescription. Egoistic, self-seeking men regard their actions as sanctioned if they have not broken the laws; and decide this question by success in evading penalties. The intelligence that should go to employing the spirit of laws to enlighten behavior is spent in ingenious inventions for observing their letter. The "respectable" citizen of this type is one of the unsocialized forces that social reformers find among their most serious obstacles.

This identification of morality with the legal and jural leads to a reaction which is equally injurious: the complete separation of the legal and the moral, the former conceived as merely "outer," concerned entirely with acts, not at all with motive and character. The effect of this divorce is perhaps more serious upon the moral than upon the legal. The separation makes morals sentimental and whimsical, or else transcendental and esoteric. It leads to neglect of the social and institutional realities which form a world of action as surely as natural objects and energies form a physical world, and ends in the popular conception of morals as just a matter of "goodness" (the goody-goodiness) of individuals. One of the most fundamental of moral duties is that of making the legal order a more adequate expression of the common good.

Special Problems.—Civil Society thus imposes upon its members not only specific obligations, but it also imposes upon all who enjoy its benefits the supreme obligation of seeing that the civic order is itself intelligently just in its methods of procedure. The peculiar moral problems which men have to face as members of civil society change, of course, from time to time with change of conditions; among the more urgent of present problems, we may mention:

1. Reform of Criminal Procedure.—The negative side of morality is never so important as the positive, because the pathological cannot be as important as the physiological of which it is a disturbance and perversion. But no fair survey of our methods, either of locating criminality or of punishing it, can fail to note that they contain far too many survivals of barbarism. Compared with primitive times we have indeed won a precious conquest. Even as late as 1813, a proposal to change the penalty for stealing five shillings from death to transportation to a remote colony, was defeated in England.[219] But we are likely in flattering ourselves upon the progress made to overlook that which it remains to make. Our trials are technical rather than human: they assume that just about so much persistent criminality must persist in any case. They endeavor, in rather routine and perfunctory ways, to label this and that person as criminal in such and such degrees, or, by technical devices and resources, to acquit. In many American states, distrust of government, inherited from days of tyrannical monarchy or oligarchy, protects the accused in all sorts of ways. For fear the government will unjustly infringe upon the liberty of the individual, the latter is not only—as is just—regarded as innocent till proved guilty; but is provided with every possible technical advantage in rules of evidence, postponements and appeals, advantages backed up, in many cities, by association with political bosses which gives him a corrupt "pull."

On the other hand, there is as yet no general recognition of the possibility of an unbiased scientific investigation into all the antecedents (hereditary and environmental) of evildoers; an investigation which would connect the wrong done with the character of the individual committing it, and not merely with one of a number of technical degrees of crime, laid down in the statute books in the abstract, without reference to particular characters and circumstances. Thus while the evildoer has in one direction altogether too much of a chance to evade justice, he has in another direction a chance at only technical, rather than at moral, justice—justice as an individual human being. It is not possible to discuss here various methods which have been proposed for remedying these defects. But it is clearly the business of the more thoughtful members of society to consider the evils seriously and to interest themselves actively in their reform. We need, above all, a change in two respects: (a) recognition of the possibilities of new methods of judgment which the sciences of physiology, psychology, and sociology have brought about; and (b) surrender of that feudal conception according to which men are divided, as it were essentially, into two classes: one the criminal and the other the meritorious. We need to consider the ways in which the pressure and the opportunities of environment and education, of poverty and comfortable living, of extraneous suggestion and stimulation, make the differences between one man and another; and to recognize how fundamentally one human nature is at bottom. Juvenile courts, probation officers, detention officers, mark the beginnings of what is possible, but only the beginnings. For the most part crime is still treated sordidly and by routine, except when, being sensational, it is the occasion for a great battle of wits between keen prosecuting attorney and clever "criminal lawyer," with the world through the newspapers watching the display.