The Elements of Politics

Henry Sidgwick

Chapter IV


§3. We have now examined briefly the chief heads of what may be called the ``individualistic minimum'' of primary governmental interference so far as sane adults alone are concerned: viz. (1) the Right of personal security, including security to health and reputation, (2) the Right of privite property, together with the Right of freely transferring property by gift, sale, or bequest, and (3) the Right to fulfilment of contracts freely entered into. We have found, under each head, that---speaking broadly---the kind of legislation which modern states agree to adopt, and practical persons agree to recommend, is not capable of being justified on the principle of taking Freedom---in any ordinary sense of the term---as an absolute end. It requires for its justification an individualistic maxim definitely understood as a subordinate principle or ``middle axiom'' of utilitarianism: i.e. that individuals are to be protected from deception, breach of engagements, annoyance, coercion, or other conduct tending to impede them in the pursuit of their ends, so far as such protection seems to be conducive to the general happiness. This conclusion will guide our subsequent attempt to work out in more detail the conception of the ``individualistic minimum''; and it will also be found fundamentally important when---in Chapters IX. and X.---we come to consider the reasons for going beyond this minimum.

We have now to observe that this utilitarian interpretation of the individualistic principle is still more obviously necessary when we proceed to deal with the fact that under the actual conditions of human life no society consists entirely of sane adults. Every society contains a large number of persons with regard to whom the most thoroughgoing individualist recognises the absurdity of maintaining that they require no more from others than non-interference and observance of contract: it is universally admitted that some legal provision must be made for supplying lunatics and children with the means of subsistence, and some authority vested in some persons to restrain them from actions mischievous to themselves as well as to others. The case of children is, of course, by far the most important. Here, if we once admit that, with a view to the general happiness, the burden of supporting, directing, and training children must be legally placed somewhere, no Individualist can doubt that it must be thrown on the parents: since it would obviously be the gravest interference with an individual's freedom of action to compel him to contribute to the support of an indefinite number of his neighbours' children. Indeed, we may say that a State that had gone so far in the direction of communism as to undertake the burden of providing for all the children of its members could hardly stop short of completely communistic institutions. To secure the effective performance of parental duty, as thus defined, some provision for the registration of births in the names of both parents would seem to be required: but it is not easy to justify, on the principle of absolute Freedom, the refusal, which is found in the legal systems of all European communities, to recoguise any connubial contracts that do not contemplate a permanent and monogamic union. Both this refusal, and other restrictions on the free union of the sexes, such as the prohibition of marriage between near relatives, are, I conceive, only justifiable on the basis of utilitarian Individualism: i.e. as indirectly necessary to provide for the due support and education of children by their parents. The exact kind of regulation which, from this point of view, would be most expedient in a modern civilised society is, I think, impose to determine from any general consideration of human nature, in which the inherited customs and sentiments that actually govern the relations of the sexes in such societies left out of account. And since it seems to be fundamentally important, for the attainment of the general end which law aims in this department, that a strong unreflecting moral aversion should be felt for the conduct legaly prohibited, it would probably be inexpedient in elementary treatise to weigh the utilitarian argument for or against particular details of the marriage law. It is sufficient to say generally that the individualc legislator must judge all actual or proposed restrictions the free union of the sexes from the single point of view just been indicated: in respect, that is, of their tendency to secure due provision, control, and training for until they are old enough to become ordinary members of an individualistic community.

Assuming the marriage union to be, under ordinary circumstances, indissoluble, it seems necessary to maintain by law the right of the husband to the society of his wife; and, on the other hand, to give the wife the right of obtaining from her husband the means of subsistence, so far as her own income from property or earnings does not suffice for this purpose;---either right being of course liable to forfeiture on account of conjugal infidelity or other gross misbehaviour. Whether it is desirable---with a view to ``prevent domestic dissension or distrust''---to go beyond this in the way of extending the husband's control over the wife's property or actions, and correspondingly extending the protection given by law to the wife in case the husband misuses his powers, is less easy to decide; but we may say that the burden of proof lies entirely with those who advocate such further restrictions on freedom. As regards the definition of parental duties and rights, it seems clear that---on our principle---the period of parental control should not be prolonged beyond the time at which the child reaches physical and intellectual maturity and that, as the growth towards maturity is gradual, legal independence should also be reached by degrees. It is more doubtful whether it accords with the individualistic principle to extend the legal duty of parents to children beyond that of giving care and sustenance up to the time at which they can earn their own living, and such training as will enable them to earn it; the point will be considered when we come to deal with bequest and inheritance.

To sum up, I conclude that I am in harmony with common sense in taking, as the fundamental basis of individualistic legislation, the principle of mutual non-interference, understood in a utilitarian sense. On this view, the general aims of individualistic legislation may be stated as follows: (1) To secure to every sane adult freedom to provide for his own happiness, by adapting the material world to the satisfaction of his needs and desires, and establishing žuch relations with other human beings as may in his opinion conduce to the same end; (2) to secure him from pain or loss, caused directly or indirectly by the action of other human beings---including in this loss any damage due to the non-performance of engagements made without coercion or deception; while (3) throwing on parents the duties of care, sustenance, and education of children, until they are able to provide for themselves, and regulating family relations---and to some extent the relations of the sexes generally---with a view to the better performance of such parental duties. To the chief legal rights and duties established under this last head I shall occasionally refer as ``family'' rights and duties; but, for the most part, I shall abstain from examining them in any further detail.

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