5. Moral interests are so greatly dependent on generally recognised rules of conduct that the criticism of the latter should come first. The law of opinion, again, in so many ways presupposes a social fabric supported by 'positive' law, that we can only fairly take account of it when we have considered the moral value and justifiability of the fabric so supported. I propose therefore to begin our inquiry into the detail of goodness—into the particular kinds of conduct which the man wishing to do good for the sake of its goodness is entitled to count good—by considering what is of permanent moral value in the institutions of civil life, as established in Europe; in what way they have contributed and contribute to the possibility of morality in the higher sense of the term, and are justified, or have a moral claim upon our loyal conformity, in consequence.

6. The condition of a moral life is the possession of will and reason. Will is the capacity in a man of being determined to action by the idea of a possible satisfaction of himself. An act of will is an action so determined. A state of will is the capacity as determined by the particular objects in which the man seeks self-satisfaction; and it becomes a character in so far as the self-satisfaction is habitually sought in objects of a particular kind. Practical reason is the capacity in a man of conceiving the perfection of his nature as an object to be attained by action. All moral ideas have their origin in reason, i.e. in the idea of a possible self-perfection to be attained by the moral agent. This does not mean that the moral agent in every stage of his progress could state this idea to himself in an abstract form, any more than in every stage in the acquisition of knowledge about nature a man can state to himself in an abstract form the conception of the unity of nature, which yet throughout conditions the acquisition of his knowledge. Ideas do not first come into existence, or begin to operate, upon the formation of an abstract expression for them. This expression is only arrived at upon analysis of a concrete experience, which they have rendered possible. Thus we only learn to express the idea of self-perfection in that abstract form upon an analysis of an experience of self-improvement which we have ourselves gone through, and which must have been gone through by those with whom we are connected by the possession of language and an organisation of life, however elementary: but the same analysis shows that the same idea must have been at work to make such experience possible. In this idea all particular moral ideas—all ideas of particular forms of conduct as estimable—originate, though an abstract expression for the latter is arrived at much sooner than such an expression for the idea in which they originate. They arise, as the individual's conception of the society on the well-being of which his own depends, and of the constituents of that well-being, becomes wider and fuller; and they are embodied in the laws, institutions, and social expectation, which make conventional morality. This embodiment, again, constitutes the moral progress of mankind. This progress, however, is only a moral progress in so far as it tends to bring about the harmony of will and reason, in the only form in which it can really exist, viz. in the characters of persons. And this result is actually achieved, in so far as upon habits disciplined by conformity to conventional morality there supervenes an intelligent interest in some of the objects contributory to human perfection, which that conventional morality subserves, and in so far as that interest becomes the dominant interest of the character.

7. The value then of the institutions of civil life lies in their operation as giving reality to these capacities of will and reason, and enabling them to be really exercised. In their general effect, apart from particular aberrations, they render it possible for a man to be freely determined by the idea of a possible satisfaction of himself, instead of being driven this way and that by external forces, and thus they give reality to the capacity called will: and they enable him to realise his reason, i.e. his idea of self-perfection, by acting as a member of a social organisation in which each contributes to the better-being of all the rest. So far as they do in fact thus operate they are morally justified, and may be said to correspond to the 'law of nature,' the jus naturae, according to the only sense in which that phrase can be intelligibly used.

8. There has been much controversy as to what the jus naturae ('Naturrecht') really is, or whether there is such a thing at all. And the controversy, when it comes to be dealt with in English, is further embarrassed by the fact that we have no one term to represent the full meaning of 'jus' or 'Recht,' as a system of correlative rights and obligations, actually enforced or that should be enforced by law. But the essential questions are: (1) whether we are entitled to distinguish the rights and obligations which are anywhere actually enforced by law from rights and obligations which really exist though not enforced; and (2), if we are entitled to do so, what is to be our criterion of rights and obligations which are really valid, in distinction from those that are actually enforced.

9. No one would seriously maintain that the system of rights and obligations, as it is anywhere enforced by law,—the 'jus' or 'Recht' of any nation—is all that it ought to be. Even Hobbes holds that a law, though it cannot be unjust, may be pernicious. But there has been much objection to the admission of natural rights and obligations. At any rate the phrase is liable to misinterpretation. It may be taken to imply that rights and obligations can exist in a 'state of nature'—a state in which every individual is free to do as he likes—; that legal rights and obligations derive their authority from a voluntary act by which individuals contracted themselves out of this state; and that the individual retains from the state of nature certain rights with which no legal obligations ought to conflict. Such a doctrine is generally admitted to be untenable; but it does not follow from this that there is not a true and important sense in which natural rights and obligations exist,—the same sense as that in which duties may be said to exist though unfulfilled. There is a system of rights and obligations which should be maintained by law, whether it is so or not, and which may properly be called 'natural'; not in the sense in which the term 'natural' would imply that such a system ever did exist or could exist independently of force exercised by society over individuals, but 'natural' because necessary to the end which it is the vocation of human society to realise.

10. The 'jus naturae,' thus understood, is at once distinguished from the sphere of moral duty, and relative to it. It is distinguished from it because admitting of enforcement by law. Moral duties do not admit of being so enforced. The question sometimes put, whether moral duties should be enforced by law, is really an unmeaning one; for they simply cannot be enforced. They are duties to act, it is true, and an act can be enforced: but they are duties to act from certain dispositions and with certain motives, and these cannot be enforced. Nay, the enforcement of an outward act, the moral character of which depends on a certain motive and disposition, may often contribute to render that motive and disposition impossible: and from this fact arises a limitation to the proper province of law in enforcing acts, which will have to be further considered below. When obligations then are spoken of in this connection, as part of the 'jus naturae' correlative to rights, they must always be understood not as moral duties, not as relative to states of will, but as relative to outward acts, of which the performance or omission can and should be enforced. There is a moral duty to discharge such obligations, and to do so in a certain spirit, but the obligation is such as that with which law has to do or may have to do, is relative to an outward act merely, and does not amount to a moral duty. There is a moral duty in regard to obligations, but there can be no obligation in regard to moral duties. Thus the 'jus naturae'—the system of rights and obligations, as it should become no less than as it actually is maintained—is distinct from morality in the proper sense. But it is relative to it. This is implied in saying that there is a moral duty in regard to actual obligations, as well as in speaking of the system of rights and obligations as it should become. If such language is justifiable, there must be a moral ground both for conforming to, and for seeking to develope and improve, established 'Recht'; a moral ground which can only lie in the moral end served by that established system.

11. Thus we begin the ethical criticism of law with two principles:—(1) that nothing but external acts can be matter of 'obligation' (in the restricted sense); and (2) that, in regard to that which can be made matter of obligation, the question what should be made matter of obligation—the question how far rights and obligations, as actually established by law, correspond to the true 'jus naturae'—must be considered with reference to the moral end, as serving which alone law and the obligations imposed by law have their value.[1]

[1] There are two definitions of 'Recht' or 'jus naturae,' quoted by Ulrici (Naturrecht, p. 219), which embody the truths conveyed in these statements. (1) Krause defines 'Recht' as 'das organische Ganze der äusseren Bedingungen des Vernunftlebens,' 'the organic whole of the outward conditions necessary to the rational life.' (2) Henrici says that 'Recht' is 'was der Idee der Unverletzbarkeit der materiellen wesentlichen Bedingungen des moralischen Menschenthums, d. h. der menschlichen Persönlichkeit nach ihrer Existenz und ihrer Vervollkommnung, oder der unveräusserlichen Menschengüter im äusserlichen Verkehr entspricht': i.e. 'Right is what' (or, 'that is properly matter of legal obligation which') 'in the outward intercourse of men corresponds to the idea of the inviolability of the essential material conditions of a moral humanity, i.e. of the human personality in respect of its existence and its perfection;' or, more simply, 'Right is that which is really necessary to the maintenance of the material conditions essential to the existence and perfection of human personality.' Cf. Trendelenburg, Naturrecht, Sect. 46. 'Das Recht ist im sittlichen Ganzen der Inbegriff derjenigen allgemeinen Bestimmungen des Handelns, durch welche es geschieht dass das sittliche Ganze und seine Gliederung sich erhalten und weiter bilden kann.' Afterwards he emphasises the words 'des Handelns,' and adds: 'Zwar kann das Handeln nicht ohne den Willen gedacht werden, der zum Grunde liegt: aber die Rechtbestimmungen sind nicht Bestimmungen des Willens als solchen, was dem innern Gebiet, der Ethik der Gesinnung, anheimfallen würde. Der Wille der nicht Handlung wird entzieht sich dem Recht. Wenn das Recht Schuld und Versehen, dolus und culpa, in sein Bereich zieht, so sind sie als innere aber charakteristische Beschaffenbeiten des Handelns anzusehen.'

12. Before proceeding, some remarks have to be made as to what is implied in these principles, (a) Does the law, or is it possible that it should, confine its view to external acts? What exactly is meant by an external act? In the case of obligations which I am legally punishable for disregarding, the law, in deciding whether punishment is or is not due, takes account of much beside the external act; and this implies that much beside external action is involved in legal obligation. In the case where the person or property of another is damaged by me, the law does not inquire merely whether the act of damage was done, and done by means of my bodily members, but whether it was done intentionally: and if not done with the direct intention of inflicting the damage, whether the damage arose in a manner that might have been foreseen out of something which I did intend to do: whether, again, if it was done quite accidentally the accident was due to culpable negligence. This, however, does not show that the law can enforce or prevent anything but external action, but only that it is action which it seeks to enforce or prevent, for without intention there is no action. We talk indeed of a man acting against his will, but if this means acting against intention it is what it is impossible to do. What I call an act done against my will is either (1) an act done by someone else using my body, through superior force, as a means: in which case there is an act, but it is not mine (e.g. if another uses my hand to pull the trigger of a gun by which someone is shot); or (2) a natural event in which my limbs are affected in a certain way which causes certain results to another person (e.g. if the rolling of a ship throws me against another person who is thus thrown into the water); or (3) an act which I do under the influence of some strong inducement (e.g. the fear of death), but which is contrary to some strong wish. In this case the act is mine, but mine because I intend it; because it is not against my will as = intention. In saying, then, that the proper, because the only possible, function of law is to enforce the performance of or abstinence from external actions, it is implied that its function is to produce or prevent certain intentions, for without intention on the part of someone there is no act.

13. But if an act necessarily includes intention, what is the nature of the restriction implied in calling it external? An external action is a determination of will as exhibited in certain motions of the bodily members which produce certain effects in the material world; not a determination of the will as arising from certain motives and a certain disposition. All that the law can do is to enjoin or forbid determinations of will as exhibited in such motions, &c. It does indeed present a motive, for it enforces its injunctions and prohibitions primarily by fear, by its threat of certain consequences if its commands are disobeyed. This enforcement is not an exercise of physical force in the strict sense, for in this sense no force can produce an action, since it cannot produce a determination of will; and the only way in which the law or its administrators employ such force is not in the production but in the prevention of action (as when a criminal is locked up or the police prevent mischievous persons from assaulting us or breaking into our houses). But though, in enforcing its commands by threats, the law is presenting a motive, and thus, according to our distinction, affecting action on its inner side, it does this solely for the sake of the external act. It does not regard the relation of the act to the motive fear as of any intrinsic importance. If the action is performed without this motive ever coming into play under the influence of what the moralist counts higher motives, the purpose of the law is equally satisfied. Indeed, it is always understood that its purpose is most thoroughly served when the threat of pains and penalties has ceased to be necessary, and the obligations correlative to the relations of individuals and of societies are fulfilled from other motives. Its business is to maintain certain conditions of life—to see that certain actions are done which are necessary to the maintenance of those conditions, others omitted which would interfere with them. It has nothing to do with the motive of the actions or omissions, on which, however, the moral value of them depends.