The Elements of Politics

Henry Sidgwick

Chapter X


§5. Finally, I may remind the reader that---as we have had occasion to notice in earlier chapters---governmental intervention in the interest of the community, going beyond the mere protection of individuals from mischief, takes place to an important extent in different departments of civil law, as determined in modern states generally. Sometimes the occasion for intervention arises on points which do not strictly fall within the limits of the application of the individualistic principle, or cannot be clearly determined by it;---as in the case of the regulation of land tenure, especially in countries incompletely populated, and some of the limitations on free bequest. In other cases the interest of the community at large, as understood in all civilised countries, is held to override the conclusions to which a consistent individualism would lead. A case of this latter class, in the department of property, is found in the limitation in time of literary copyright, as compared with the perpetual protection given to the right of property in material things: since the only tenable grounds for treating the ideal products of intellectual labour differently from the products of labour ``embodied'' in matter lie in the obvious increase of utility to the community that results from the termination of the literary producer's monopoly, together with the absence of any danger, in the case of valuable literary products, that their utility may be diminished through want of care,---as is largely the case with the material products of labour. But the most important interventions . of this kind occur in the department of contract. Thus, in the whole law of bankruptcy in modern states, the fundamental individualistic rule of enforcing reparation for the breach of contract freely entered into is manifestly overridden by considerations of general utility. Still more important are the restrictions on freedom of connubial contracts, imposed by the marriage laws of modern communities generally; and along with these I may class any legal restraints on the sexual intercourse of unmarried persons, and prohibitions of the sale of pictures, books, etc., provocative of sexual desire; since all such interferences with freedom are, I conceive, ultimately justified by the paramount interest that the community has in providing for the proper rearing of children. In all these cases, and others that might be mentioned, the interest of the community at large---as distinct from that of the individuals primarily concerned---supplies both the general justification for the legislative and administrative interference required, and the criterion by which any particular questions relating to such interference should be determined.

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