The Elements of Politics

Henry Sidgwick

Chapter IV


§4. Let us now proceed to consider more fully the chief particular rights which the general right to noninterference is found to include, when we seek to realise it under the actual circumstances of human life in society.

The following appear to be the chief ways in which A may interfere with B's interests or happiness---otherwise than by physical constraint or confinement, which I need not further discuss: (1) By impeding his efforts to adapt his material environment to the satisfaction of his needs and desires: (2) by breach of contract: (3) by causing him physical injury or discomfort: (4) by interfering with his relations to other human beings: (5) by false statements, leading him to act or abstain from acting in a manner detrimental to himself: (6) by moral coercion or intimidation: (7) by causing him mental annoyance of some other kind. In the chapters that follow I shall be chiefly concerned with the rights and obligations to be established under the first two heads: since the regulation of the use of material things---and especially of that exclusive use which is the essence of property,---and the determination of the conditions of legally valid contracts, are the most important topics in a general survey of civil law from a political point of view. Contract is the main link by which the complex system of co-operation that characterises a modern civilised society is knit together: while the most marked differences in the outward lives of ordinary members of a modern society depend mainly on differences in the extent of their rights of property; and consequently the acquisition of property is usually the most prominent aim of the actions of such persons in their most important social relations outside their own families. Under the remaining heads much fuller discussion is needed, to work out a sufficiently precise statement and adequate justification of the rules practically required; but of this further discussion, in such a treatise as the present, only a brief indication can be given.

The general problem, presented to an individualistic legislator in different forms under these different heads, is that of adequately protecting A from loss, pain, or alarm, caused by the action of B, without unduly annoying or hampering B. In many cases experience alone can enable us to determine the best middle course to take between opposite dangers: but we may note some of the general considerations by which this course will be determined.

I. It is one of the most obvious duties of men living in society to avoid causing physical injury or discomfort to others: and where avoidable damage or serious annoyance of this kind has been even unintentionally inflicted through carelessness, there is a prima facie ground for exacting adequate compensation from the doer to the sufferer of the harm. But we may reasonably go much further in repressing acts of this kind, when demonstrably done with intent to injure or coerce, than we ought to go in repressing similar acts done without any such intention: partly because an act externally the same becomes indefinitely more annoying and alarming when its intention is malevolent or coercive, partly because it is not usually a severe or dangerous restriction on any one's freedom of action to preclude him from efforts to annoy or alarm others. For instance, it may be slightly annoying to be pushed or jostled in a crowd: but if this annoyance were treated as a wrong, the care imposed by the duty of avoiding it under all circumstances would be a much greater burden than the annoyance it was designed to remedy; we may, however, reasonably treat as an offence any pushing or jostling with intent to annoy.

II. The same point is important in considering how far A is to be legally restrained from causing loss or annoyance to B by interfering with his relations with other persons. Here, however, we must first notice another distinction of fundamental importance; the interferer may either induce other persons, in domestic or social relations with B, to violate actual obligations, or he may merely induce them to abstain from making agreements with B, or rendering him services not legally due. The general expediency of prohibiting the former kind of interference is obvious: a man who knowingly commands or persuades another to commit a wrong should be regarded as himself a wrong-doer. It should be noted, however, that some qualification of this principle is required in the case of breaches of contract: so far as the strict fulfilment of contractual obligation is properly not made legally obligatory in certain cases, but only adequate pecuniary compensation for non-fulfilment. It would clearly not be right in such cases to inflict any penalty on one who had advised a breach of contract, unless be had also advised non-payment of reasonable compensation, or unless his advice had been given with a demonstrable intent to injure or coerce the promisee. But in the case of contracts where strict performance, should be legally compulsory---such as contracts to pay money or transfer other wealth---consistency requires that the offering of inducements to break the contract should be regarded as a wrong.

There is more difficulty where the acts to which the interferer offers inducement are acts in themselves lawful, though seriously damaging or annoying to B. For acts of this kind are inevitable incidents of industrial competition. E.g. to obtain the advantages of competition, in stimulating and rewarding good management of business, A must be allowed to persuade B's customers to desert him en masse, and transfer their custom to A, even though the result may be industrial ruin to B. Accordingly, in such a case it seems right to have regard partly to the ulterior intention; if the interference damaging to B is, designed to promote A's business interests, in the ordinary course of the competition for industrial prosperity, it must be treated as legitimate---if otherwise lawful---in a society individualistically organised: but if its aim is demonstrably to injure B, it may be regarded as falling within the class of interferences which---if the mischief they cause be considerable---may be proper subjects for legal repression.

One specially important mode in which a man's relations to other human beings are liable to be injuriously affected is by statements damaging to his reputation: at the same time, a most important part of the mutual services which the members of any society are capable of rendering consists in pointing out defects in the character and conduct of others. Here, accordingly, the problem of preventing as far as possible injury to reputation without doing more harm by restricting freedom of communication, is peculiarly difficult. The simple solution of allowing true damaging statements to be made but prohibiting false ones, is not satisfactory: since to penalise every untrue damaging statement, even though made in perfect good faith, would render the functions of warning and criticism too dangerous; on the other hand, there are true statements of which the publication would be clearly mischievous,---as the pain and bitterness caused by them would much outweigh their utility in the way of warning. Perhaps we may distinguish three classes of cases:

(1) There are certain public occasions in which the importance to the community of a full and candid utterances of a man's belief seems to be so great as to outweigh entirely the risk of harm to private reputations from such utterance. Thus, according to English law, ``the freedom of speech and debate in Parliament'' cannot be ``impeached or questioned in any place outside Parliament''; again, an action will not lie against a judge for words spoken by him judicially, nor against a witness in any case for anything relevant said in the course of judicial proceedings. And these securities seem to be required for the due performance of legislative and judicial functions.

(2) In other cases in which it is, generally speaking, clearly advantageous to society that men should communicate to others beliefs honestly entertained by them respecting the character or conduct of third parties, such statements, however injurious to the reputation of their objects, should not entail a liability to legal penalties, even if they turn out to be unfounded: unless they can be shown to have been made from some improper motive, or with reckless disregard of the ordinary means of ascertaining the truth. Examples of this class are confidential communications about the character of a servant; warnings given by a solicitor to a client, or a guardian to a ward; ``fair comments'' on matters that have been brought before the public.

(3) In cases where there is no clear general probability of any considerable advantage to society from the free communication of candid opinions, the importance of protecting individuals from damage to reputation would seem to outweigh the general considerations in favour of freedom of speech. In such cases, even if a man utters his honest opinion without malevolence, he should do so at the risk of having to make reparation if any statement seriously injurious to others should turn out to be false in any material point.

III. A somewhat similar problem is presented in the case of injury done to a man by false statements made not about him but to him. If statements of this kind can be shown to have been made with intent to mislead, it seems clear that they---as well as other deceptive acts---should be repressed by making the deceiver liable for any serious damage caused by his deception. But if there is no demonstrable intention to deceive, the question is less easy since it would seriously hamper the freedom of human intercourse if a man were held legally responsible for all the harm done by statements made to other men without an exact regard to truth. If, however, A makes statements to B with the deliberate design of inducing him to act in a certain way for the promotion of A's interests, it is specially incumbent on him---and not too much to require---that he should resist the temptation to make statements which he does not know to be true, in the hope that they may turn out to be so; hence, in this case, not only consciously false but grossly reckless statements, which actually cause material damage, may fairly be regarded as wrongs needing reparation.

IV. Under the head of moral coercion or intimidation, a distinction has to be taken similar to that which has already been pointed out in considering interference with social relations. There can be no doubt that to cause alarm by doing or threatening wrongful acts, or to endeavour by any kind of threats to induce a man to do wrongful acts or abstain from fulfilling definite duties, are wrongful interferences, which call for legal repression. But when A, be threatening to do something in itself legitimate but damaging or annoying to B, induces B to act in a manner opposed to B's interests or inclination, but not involving a breach of legal duty, it is a more difficult question how far this kind of intimidation can properly be regarded as a legal wrong from an individualistic point of view. We can hardly lay down that an intention to coerce renders an act wrong which would otherwise be legitimate, no less than an intention to injure. For there are many cases in which a coercive intent is also plainly beneficent, either in the interest of the person coerced or of the community; as when a father notifies to a son that he will lose a legacy if he runs into debt, or when persons are restrained or reclaimed from vice by fear of exclusion from social relations. It would be paradoxical to regard such warnings and exclusions as wrongs, merely because they are intended to be coercive. Again, coercion of a certain kind is a natural incident of commercial exchanges: the buyer forces the seller to lower his price by refusing to buy, and vice versa. All we can say is that, whenever the direct or main intent of any action is to induce a man by fear of damage to do what, apart from such inducement, he would consider to be opposed to his interest, the action is at least of doubtful legitimacy from an individualistic point of view; in fact, cases similar to those above mentioned may easily be found which would be generally disapproved; e.g. if a father were to warn a son that he would lose a legacy if he did not join the Church of Rome, or if an employer were to give notice that he would engage no workmen who declined to take a pledge of abstinence from tobacco. So again, a trader would be widely censured who sold his goods at unremunerative prices in order to drive another trader out of the business. In short, conduct of this kind lies on the ambiguous margin between what an individualistic code should allow and what it should prevent: and it cannot be said to be contrary to the individualistic principle to subject such conduct to legal repression in any special case in which a demonstrably coercive intention was combined with mischievous results---provided that this special case could be clearly defined and distinguished from other cases. A particular case that is free from difficulty is where the act threatened is one that either ought not to be done at all, or ought to be done with a view to the public benefit;---such as an accusation of crime. The wrongfulness of threatening an act of this kind with a view to private gain, to be obtained by inducing persons whom it might harm to purchase the threatener's silence, is easily recognised and defined. Another case that specially invites the legislator's attention, as specially menacing to the freedom of individuals, is where a number of persons combine to in by threatening acts which, though not illegal apart from their coercive purpose, are demonstrably threatened and carried. out for this purpose.

V. It remains to consider how far the causing of mental annoyance, without demonstrably malevolent intention, is to be regarded as an interference which law ought to prevent. Mention will at once show that we cannot hope to prevent with anything like completeness. B may be offended by the colour of A's dress or the cut of his beard, his movements in public, or the expression of his opinions and sentiments; but it is obvious that the attempt to shield completely from annoyance thus caused would involve tenfold more vexatious interference with A. Experience alone can enable us to determine roughly what kinds of sensibility to mental annoyance are so keen and widely spread as to render governmental interference desirable for their protection. It is to be observed that in many cases mental annoyance is commonly combined with harm or loss of some other kind. This is the case with attacks on reputation, which we have already considered: and in other important cases of offensive and annoying acts prohibited by law in modern civilised communities, we find that such acts have at least an indirect tendency to cause a violation of some legal rule that rests on other grounds. Thus indecency is prohibited because the sentiment it offends is indirectly protective of the institution of the family; and I conceive that the primary aim of law in prohibiting blasphemy is not merely to prevent the mental pain it causes to believers in the established religion, but to prevent religious beliefs from being weakened, on account of their importance to social order.

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