154. The admission of a right to free life on the part of every man, as man, does in fact logically imply the conception of all men as forming one society in which each individual has some service to render, one organism in which each has a function to fulfil. There can be no claim on society such as constitutes a right, except in respect of a capacity freely (i.e. under determination by conception of the good) to contribute to its good. If the claim is made on behalf of any and every human being, it must be a claim on human society as a whole, and there must be a possible common good of human society as a whole, conceivable as independent of the special conditions of particular societies, to render such a claim possible. We often find, however, that men assimilate a practical idea in respect of one of its implications without doing so in respect of the rest. Thus the idea of the individual's right to free life has been strongly laid hold of in Christendom in what may be called an abstract or negative way, but little notice has been taken of what it involves. Slavery is everywhere condemned. It is established that no one has a right to prevent the individual from determining the conditions of his own life. We treat life as sacred even in the human embryo, and even in hopeless idiots and lunatics recognise a right to live, a recognition which can only be rationally explained on either or both of two grounds: (1) that we do not consider either their lives, or the society which a man may freely serve, to be limited to this earth, and thus ascribe to them a right to live on the strength of a social capacity which under other conditions may become what it is not here; or (2) that the distinction between curable and incurable, between complete and incomplete, social incapacity is so indefinite that we cannot in any case safely assume it to be such as to extinguish the right to live. Or perhaps it may be argued that even in cases where the incapacity is ascertainably incurable, the patient has still a social function (as undoubtedly those who are incurably ill in other ways have), a passive function as the object of affectionate ministrations arising out of family instincts and memories; and that the right to have life protected corresponds to this passive social function. The fact, however, that we have almost to cast about in certain cases for an explanation of the established belief in the sacredness of human life, shows how deeply rooted that belief is unless where some counter-belief interferes with it.
155. On the other hand, it is equally noticeable that there are counter-beliefs which, under conditions, do neutralise it, and that certain other beliefs, which form its proper complement, have very slight hold on the mind of modern Christendom. It is taken for granted that the exigencies of the state in war, whether the war be necessary or not for saving the state from dissolution, absolutely neutralise the right to live. We are little influenced by the idea of the universal brotherhood of men, of mankind as forming one society with a common good, of which the conception may determine the action of its members. In international dealings we are apt to suppose that it can have no place at all. Yet, as has been pointed out, it is the proper correlative of the admission of a right to free life as belonging to man in virtue simply of his human nature. And though this right can only be grounded on the capacity, which belongs to the human nature, for freely fulfilling some function in the social organism, we do very little to give reality to the capacity or to enable it to realise itself. We content ourselves with enacting that no man shall be used by other men as a means against his will, but we leave it to be pretty much a matter of chance whether or no he shall be qualified to fulfil any social function, to contribute anything to the common good, and to do so freely (i.e. under the conception of a common good). The only reason why a man should not be used by other men simply as a means to their ends, is that he should use himself as a means to an end which is really his and theirs at once. But while we say that he shall not be used as a means, we often leave him without the chance of using himself for any social end at all.
156. Four questions then arise: (1) With what right do the necessities of war override the individual's right of life? (2) In what relation do the rights of states to act for their own interest stand to that right of human society, as such, of which the existence is implied in the possession of right by the individual as a member of that society, irrespectively of the laws of particular states? (3) On what principle is it to be assumed that the individual by a certain conduct of his own forfeits the right of free life, so that the state (at any rate for a time) is entitled to subject him to force; to treat him as an animal or a thing? Is this forfeiture ever so absolute and final that the state is justified in taking away his life? (4) What is the nature and extent of the individual's claim to be enabled to realise that capacity for contributing to a social good, which is the foundation of his right to free life?
K. THE RIGHT OF THE STATE OVER THE INDIVIDUAL IN WAR.
157. (1) It may be admitted that to describe war as 'multitudinous murder' is a figure of speech. The essence of murder does not lie in the fact that one man takes away the life of another, but that he does this to 'gain his private ends' and with 'malice' against the person killed. I am not here speaking of the legal definition of murder, but of murder as a term of moral reprobation, in which sense it must be used by those who speak of war as 'multitudinous murder.' They cannot mean murder in the legal sense, because in that sense only 'unlawful killing,' which killing in war is not, is murder. When I speak of 'malice,' therefore, I am not using 'malice' in the legal sense. In that sense 'malice' is understood to be the attribute of every 'wrongful act done intentionally without just or lawful excuse,' [1] and is ascribed to acts (such as killing an officer of justice, knowing him to be such, while resisting him in a riot) in which there is no ill-will of the kind which we suppose in murder, when we apply the term in its natural sense as one of moral disapprobation. Of murder in the moral sense the characteristics are those stated, and these are not present in the case of a soldier who kills one on the other side in battle. He has no ill-will to that particular person or to any particular person. He incurs an equal risk with the person whom he kills, and incurs that risk not for the sake of killing him. His object in undergoing it is not private to himself, but a service (or what he supposes to be a service) to his country, a good which is his own no doubt (that is implied in his desiring it), but which he presents to himself as common to him with others. Indeed, those who might speak of war as 'multitudinous murder' would not look upon the soldier as a murderer. If reminded that there cannot be a murder without a murderer, and pressed to say who, when a bloody battle takes place, the murderer or murderers are, they would probably point to the authors of the war. It may be questioned, by the way, whether there has ever been a war of which the origination could be truly said to rest with a definite person or persons, in the same way in which the origination of an act which would be called murder in the ordinary sense rests with a particular person. No doubt there have been wars for which certain assignable individuals were specially blameable, wars which they specially helped to bring about or had special means of preventing (and the more the wickedness of such persons is kept in mind the better); but even in these cases the cause of the war can scarcely be held to be gathered up within the will of any individual, or the combined will of certain individuals, in the same way as is the cause of murder or other punishable acts. When A.B. is murdered, the sole cause lies in some definite volition of CD. or others, however that volition may have been caused. But when a war 'breaks out,' though it is not to be considered, as we are too apt to consider it, a natural calamity which could not be prevented, it would be hard to maintain that the sole cause lies in some definite volition on the part of some assignable person or persons, even of those who are most to blame. Passing over this point, however, if the acts of killing in war are not murders (in the moral sense, the legal being out of the question) because they lack those characteristics on the part of the agent's state of mind which are necessary to constitute a murder, the persons who cause those acts to be committed, if such persons can be pointed out, are not the authors of murder, multitudinous or other. They would only be so if the characteristic of 'malice,' which is absent on the part of the immediate agent of the act, were present on their part as its ultimate agents. But this is not the case. However selfish their motives, they cannot fairly be construed into ill-will towards the persons who happened to be killed in the war; and therefore, whatever wickedness the persons responsible for the war are guilty of, they are not guilty of 'murder' in any natural sense of the term, nor is there any murder in the case at all.
[1] Markby, Elements of Law, sec. 226.
158. It does not follow from this, however, that war is ever other than a great wrong, as a violation on a multitudinous scale of the individual's right to life. Whether it is so or not must be discussed on other grounds. If there is such a thing as a right to life on the part of the individual man as such, is there any reason to doubt that this right is violated in the case of every man killed in war? It is not to the purpose to allege that in order to a violation of right there must be not only a suffering of some kind on the part of the subject of a right, but an intentional act causing it on the part of a human agent. There is of course no violation of right when a man is killed by a wild beast or a stroke of lightning, because there is no right as between a man and a beast or between a man and a natural force. But the deaths in a battle are caused distinctly by human agency and intentional agency. The individual soldier may not have any very distinct intention when he fires his rifle except to obey orders, but the commanders of the army and the statesmen who send it into the field intend the death of as many men as may be necessary for their purpose. It is true they do not intend the death of this or that particular person, but no more did the Irishman who fired into a body of police guarding the Fenian prisoners. It might fairly be held that this circumstance exempted the Irishman from the special moral guilt of murder, though according to our law it did not exempt him from the legal guilt expressed by that term; but no one would argue that it made the act other than a violation of the right to life on the part of the policeman killed. No more can the absence of an intention to kill this or that specific person on the part of those who cause men to be killed in battle save their act from being a violation of the right to life.
159. Is there then any condition on the part of the persons killed that saves the act from having this character? It may be urged that when the war is conducted according to usages that obtain between civilised nations, (not when it is a village-burning war like that between the English and Afghans), the persons killed are voluntary combatants, and οὐδεὶς ἀδικεῖται ἑκών [1]. Soldiers, it may be said, are in the position of men who voluntarily undertake a dangerous employment. If some of them are killed, this is not more a violation of the human right to life than is the death of men who have engaged to work in a dangerous coal-pit. To this it must be answered that if soldiers did in fact voluntarily incur the special risk of death incidental to their calling, it would not follow that the right to life was not violated in their being—killed. It is not a right which it rests with a man to retain or give up at his pleasure. It is not the less a wrong that a man should be a slave because he has sold himself into slavery. The individual's right to live is but the other side of the right which society has in his living. The individual can no more voluntarily rid himself of it than he can of the social capacity, the human nature, on which it is founded. Thus, however ready men may be for high wages to work in a dangerous pit, a wrong is held to be done if they are killed in it. If provisions which might have made it safe have been neglected, someone is held responsible. If nothing could make it safe, the working of the pit would not be allowed. The reason for not more generally applying the power of the state to prevent voluntary noxious employments, is not that there is no wrong in the death of the individual through the incidents of an employment which he has voluntarily undertaken, but that the wrong is more effectually prevented by training and trusting individuals to protect themselves than by the state protecting them. Thus the waste of life in war would not be the less a wrong,—not the less a violation of the right, which subsists between all members of society, and which none can alienate, that each should have his life respected by society,—if it were the fact that those whose lives are wasted voluntarily incurred the risk of losing them. But it can scarcely be held to be the fact. Not only is it impossible, even when war is conducted on the most civilised methods, to prevent great incidental loss of life (to say nothing of other injury) among non-combatants; the waste of the life of the combatants is one which the power of the state compels. This is equally true whether the army is raised by voluntary enlistment or by conscription. It is obviously so in the case of conscription; but under a system of voluntary enlistment, though the individual soldier cannot say that he in particular has been compelled by the government to risk his life, it is still the case that the state compels the risk of a certain number of lives. It decrees that an army of such a size shall be raised, though if it can get the men by voluntary hiring it does not exercise compulsion on the men of a particular age, and it sends the army into the field. Its compulsive agency causes the death of the soldiers killed, not any voluntary action on the part of the soldiers themselves. The action of the soldiers no doubt contributes to the result, for if they all refused to fight there would be no killing, but it is an action put in motion and directed by the power of the state, which is compulsive in the sense that it operates on the individual in the last resort through fear of death.
[1] [Greek οὐδεὶς ἀδικεῖται ἑκών (oudeis adikeitai hekon) = there can be no injustice to a person who has agreed to what is done to him Tr.]
160. We have then in war a destruction of human life inflicted on the sufferers intentionally by voluntary human agency. It is true, as we saw, that it is not easy to say in any case by whose agency in particular. We may say indeed that it is by the agency of the state, but what exactly does that mean? The state here must = the sovereign power in the state; but it is always difficult to say by whom that power is wielded, and if we could in any case specify its present holders, the further question will arise whether their course of action has not been shaped for them by previous holders of power. But however widely distributed the agency may be which causes the destruction of life in war, it is still intentional human agency. The destruction is not the work of accident or of nature. If then it is to be other than a wrong, because a violation of the right to mutual protection of life involved in the membership of human society, it can only be because there is exercised in war some right that is paramount to this. It may be argued that this is the case; that there is no right to the preservation of life at the cost of losing the necessary conditions of 'living well'; that war is in some cases the only means of maintaining these conditions, and that where this is so, the wrong of causing the destruction of physical life disappears in the paramount right of preserving the conditions under which alone moral life is possible.