14. It appears, then, that legal obligations—obligations which can possibly form the subject of positive law—can only be obligations to do or abstain from certain acts, not duties of acting from certain motives, or with a certain disposition. It is not a question whether the law should or should not oblige to anything but performance of outward acts. It simply cannot oblige to anything else, because the only means at its command for obtaining the fulfilment of obligations are (1) threats of pain and offers of reward, by means of which it is possible indeed to secure the general performance of certain acts, but not their performance from the motive even of fear of the pain threatened or hope of the reward offered, much less from any higher motive; (2) the employment of physical force, (a) in restraining men disposed to violate obligations, (b) in forcibly applying the labour or the property of those who violate obligations to make good the breach, so far as is possible: (as, e.g., when the magistrate forestalls part of a man's wages to provide for a wife whom he has deserted, or when the property of a debtor is seized for the benefit of his creditors.)
15. Only outward acts, then, can be matter of legal obligation; but what sort of outward acts should be matter of legal obligation? The answer to this question arises out of the above consideration of the means which law employs to obtain the fulfilment of obligations, combined with the view of law as relative to a moral end, i.e. the formation of a society of persons, acting from a certain disposition, from interest in the society as such. Those acts only should be matter of legal injunction or prohibition of which the performance or omission, irrespectively of the motive from which it proceeds, is so necessary to the existence of a society in which the moral end stated can be realised, that it is better for them to be done or omitted from that unworthy motive which consists in fear or hope of legal consequences than not to be done at all.
16. We distinguish, then, the system of rights actually maintained and obligations actually enforced by legal sanctions ('Recht' or 'jus') from the system of relations and obligations which should be maintained by such sanctions ('Naturrecht'); and we hold that those actions or omissions should be made obligations which, when made obligations, serve a certain moral end; that this end is the ground or justification or rationale of legal obligation; and that thus we obtain a general rule, of both positive and negative application, in regard to the proper matter or content of legal obligation. For since the end consists in action proceeding from a certain disposition, and since action done from apprehension of legal consequences does not proceed from that disposition, no action should be enjoined or prohibited by law of which the injunction or prohibition interferes with actions proceeding from that disposition, and every action should be so enjoined of which the performance is found to produce conditions favourable to action proceeding from that disposition, and of which the legal injunction does not interfere with such action.
17. Does this general rule give any real guidance in the difficulties which practically arise in regard to the province of law—as to what should be required by law, and what left to the inclination of individuals? What cases are there or have there been of enactments which on this principle we can pronounce wrong? Have attempts ever been made by law to enforce acts as virtuous which lose their virtue when done under fear of legal penalties? It would be difficult, no doubt, to find instances of attempts to enforce by law actions of which we should say that the value lies in the disposition from which they are done, actions, e.g. of disinterested kindness, because the clear conception of virtue as depending not on outward results, but on disposition, is but slowly arrived at, and has never been reflected in law. But without any strictly moral object at all, laws have been made which check the development of the moral disposition. This has been done (a) by legal requirements of religious observance and profession of belief, which have tended to vitiate the religious source of morality; (b) by prohibitions and restraints, unnecessary, or which have ceased to be necessary, for maintaining the social conditions of the moral life, and which interfere with the growth of self-reliance, with the formation of a manly conscience and sense of moral dignity,—in short, with the moral autonomy which is the condition of the highest goodness; (c) by legal institutions which take away the occasion for the exercise of certain moral virtues (e.g. the Poor-law which takes away the occasion for the exercise of parental forethought, filial reverence, and neighbourly kindness).
18. Laws of this kind have often been objected to on the strength of a one-sided view of the function of laws; the view, viz., that its only business is to prevent interference with the liberty of the individual. And this view has gained undue favour on account of the real reforms to which it has led. The laws which it has helped to get rid of were really mischievous, but mischievous for further reasons than those conceived of by the supporters of this theory. Having done its work, the theory now tends to become obstructive, because in fact advancing civilisation brings with it more and more interference with the liberty of the individual to do as he likes, and this theory affords a reason for resisting all positive reforms, all reforms which involve an action of the state in the way of promoting conditions favourable to moral life. It is one thing to say that the state in promoting these conditions must take care not to defeat its true end by narrowing the region within which the spontaneity and disinterestedness of true morality can have play; another thing to say that it has no moral end to serve at all, and that it goes beyond its province when it seeks to do more than secure the individual from violent interference by other individuals. The true ground of objection to 'paternal government' is not that it violates the 'laissez faire' principle and conceives that its office is to make people good, to promote morality, but that it rests on a misconception of morality. The real function of government being to maintain conditions of life in which morality shall be possible, and morality consisting in the disinterested performance of self-imposed duties, 'paternal government' does its best to make it impossible by narrowing the room for the self-imposition of duties and for the play of disinterested motives.
19. The question before us, then, is, In what ways and how far do the main obligations enforced and rights maintained by law in all civilised societies contribute to the moral end described; viz. to establish those conditions of life in which a true, i.e. a disinterested or unselfish morality shall be possible? The answer to this question will be a theory of the 'jus naturae'; i.e. it will explain how far positive law is what it should be, and what is the ground of the duty to obey it; in other words, of political obligation. There are two things from which such a theory must be distinguished. (1) It is not an inquiry into the process by which actual law came to be what it is; nor (2) is it an inquiry how far actual law corresponds to and is derived from the exercise of certain original or natural rights. (1) It is not the former, because the process by which the law of any nation and the law in which civilised nations agree has come to be what it is, has not been determined by reference to that end to which we hold that law ought to be directed and by reference to which we criticise it. That is to say, the process has not been determined by any such conscious reference on the part of the agents in the process. No doubt a desire for social good as distinct from private pleasure, for what is good on the whole as distinct from what is good for the moment, has been a necessary condition of it; but (a), as an agent in the development of law, this has not reached the form of a conception of moral good according to that definition of it by which the value of law is to be estimated; and (b) in bringing law to its present state it has been indistinguishably blended with purely selfish passions and with the simple struggle for existence.
20. (2) A true theory of 'jus naturae,' a rationale of law or ideal of what it should be, is not to be had by inquiring how far actual law corresponds to, and is derived from, the exercise of certain original or natural rights, if that is taken to mean that we know, or can ascertain, what rights are natural on grounds distinct from those on which we determine what laws are justifiable, and that then we can proceed to ascertain what laws are justifiable by deduction from such rights. 'Natural rights,' so far as there are such things, are themselves relative to the moral end to which perfect law is relative. A law is not good because it enforces 'natural rights,' but because it contributes to the realisation of a certain end. We only discover what rights are natural by considering what powers must be secured to a man in order to the attainment of this end. These powers a perfect law will secure to their full extent. Thus the consideration of what rights are 'natural' (in the only legitimate sense) and the consideration what laws are justifiable form one and the same process, each presupposing a conception of the moral vocation of man.
21. The doctrine here asserted, that all rights are relative to moral ends or duties, must not be confused with the ordinary statement that every right implies a duty, or that rights and duties are correlative. This of course is true in the sense that possession of a right by any person both implies an obligation on the part of someone else, and is conditional upon the recognition of certain obligations on the part of the person possessing it. But what is meant is something different, viz. that the claim or right of the individual to have certain powers secured to him by society, and the counter-claim of society to exercise certain powers over the individual, alike rest on the fact that these powers are necessary to the fulfilment of man's vocation as a moral being, to an effectual self-devotion to the work of developing the perfect character in himself and others.
22. This, however, is not the ground on which the claim in question has generally been asserted. Apart from the utilitarian theory, which first began to be applied politically by Hume, the ordinary way of justifying the civil rights of individuals (i.e. the powers secured to them by law as against each other), as well as the rights of the state against individuals (i.e. the powers which, with the general approval of society, it exercises against them), has been to deduce them from certain supposed prior rights, called natural rights. In the exercise of these natural rights, it has been supposed, men with a view to their general interest established political society. From that establishment is derived both the system of rights and obligations maintained by law as between man and man, and the right of the state to the submission of its subjects. If the question, then, is raised, why I ought to respect the legal rights of my neighbours, to pay taxes, or have my children vaccinated, serve in the army if the state requires it, and generally submit to the law, the answer according to this theory will be that if I fail to do so, I shall directly or indirectly be violating the natural rights of other men; directly in those cases where the legal rights of my neighbours are also natural rights, as they very well may be (e.g. rights of liberty or personal safety); indirectly where this is not the case, because, although the rights of the state itself are not natural, and many rights exercised by individuals would not only not be secured but would not exist at all but for legal enactment, yet the state itself results from a covenant which originally, in the exercise of their natural rights, men made with each other, and to which all born under the state and sharing the advantages derived from it must be considered parties. There is a natural right, therefore, on the part of each member of a state to have this compact observed, with a corresponding obligation to observe it; and this natural right of all is violated by any individual who refuses to obey the law of the state or to respect the rights, not in themselves natural, which the state confers on individuals.
23. This, on the whole, was the form in which the ground of political obligation, the justification of established rights, was presented throughout the seventeenth century, and in the eighteenth till the rise of the 'utilitarian' theory of obligation. Special adaptations of it were made by Hobbes and others. In Hobbes, perhaps (of whom more later), may be found an effort to fit an anticipation of the utilitarian theory of political obligation into the received theory which traced political obligation, by means of the supposition of a primitive contract, to an origin in natural right. But in him as much as anyone the language and framework of the theory of compact is retained, even if an alien doctrine may be read between the lines. Of the utilitarian theory of political obligation more shall be said later. It may be presented in a form in which it would scarcely be distinguishable from the doctrine just now stated, the doctrine, viz., that the ground of political obligation, the reason why certain powers should be recognised as belonging to the state and certain other powers as secured by the state to individuals, lies in the fact that these powers are necessary to the fulfilment of man's vocation as a moral being, to an effectual self-devotion to the work of developing the perfect character in himself and others. Utilitarianism proper, however, recognises no vocation of man but the attainment of pleasure and avoidance of pain. The only reason why civil rights should be respected—the only justification of them—according to it, would be that more pleasure is attained or pain avoided by the general respect for them; the ground of our consciousness that we ought to respect them, in other words their ultimate sanction, is the fear of what the consequences would be if we did not. This theory and that which I deem true have one negative point in common. They do not seek the ground of actual rights in a prior natural right, but in an end to which the maintenance of the rights contributes. They avoid the mistake of identifying the inquiry into the ultimate justifiability of actual rights with the question whether there is a prior right to the possession of them. The right to the possession of them, if properly so called, would not be a mere power, but a power recognised by a society as one which should exist. This recognition of a power, in some way or other, as that which should be, is always necessary to render it a right. Therefore when we had shown that the rights exercised in political society were derived from prior 'natural' rights, a question would still remain as to the ground of those natural rights. We should have to ask why certain powers were recognised as powers which should be exercised, and thus became these natural rights.