§4. But Positive Morality, in a well-ordered State, does not only support the action of Government: it has, of course, the further important function of regulating conduct in matters beyond the range of governmental coercion. To consider in detail how this function ought to be performed would be to write a treatise on ethics: but we may briefly note certain parts of social conduct where for special reasons the influence of moral opinion is indispensable or preferable, as a means of producing the kind of effects at which Law aims. In this survey it is convenient to distinguish between the penalties of Positive Morality and its rewards between moral censure and moral approval or praise. It is to the operation of moral censure that our attention is naturally directed in studying the analogy between Law and Morality, and I shall accordingly begin by considering this: but, as we shall presently see, the respective functions of censure and praise cannot be sharply separated.
First, then, moral censure is the chief resource that remains available, when the means which the legislator employs fail to attain the end which he has in view, from accidental circumstances defeating their normal operation. For instance, granting that the conditions to which the legal validity of contracts is subjected are rightly imposed as generally suitable to the end in view, still particular cases may occur in which an engagement to do some lawful act was clearly made with full deliberation and without any coercion or misrepresentation or improper inducements, while at the same time the legal conditions have not been fulfilled. In such cases it is generally desirable that the violation of the engagement should be censured, though reparation cannot be legally exacted. So again, a testator may accidentally fail to make a valid will, though his intention may be expressed with sufficient clearness to make it the duty of his heir to conform to it if it is not in its nature improper: here, too, the moral opinion of persons acquainted with the circumstances may usefully take the place of the legal coercion that cannot be applied.
Secondly, there are cases in which the intervention of law is inapplicable as a remedy for undoubted mischief, owing to the general importance of leaving wide discretion to the private individuals who would have to be coerced. One chief case of this class is the treatment of children by parents: in order to maintain the parents' sense of responsibility on the one hand, and the child's habit of obedience and respect on the other, it does not seem generally expedient that Government should interfere with the domestic rule of the parent, unless there is evidence of gross neglect or cruelty; but there may easily be breaches of parental duty falling short of this, which may properly be visited with moral censure.
So again, we have before seen that it is impossible to define the spheres of individual freedom for adults so that the observance of the limits may completely prevent all serious mutual annoyance; and, in particular, we have noted that the power which an individualistic system must necessarily secure to sane adults generally, of freely entering into and terminating economic relations with other individuals may be used to injure and coerce those others. In such cases public opinion may importantly supplement law in repressing malevolent or intimidative exercise of legal freedom, and reducing mutual annoyance to a minimum; though it must be home in mind that this very public opinion is itself a coercive force which, if misdirected, may do harm of this kind in the worst degree.
Again, there must always be cases, especially in the department of contract, in which the enforcement of strict legal rights would---owing to exceptional circumstances which a legislator or judge cannot safely take into account---be manifestly harsh in its effects, and would show a repulsive want of normal human sympathy.
Again, there are acts so highly detrimental to social wellbeing that it is desirable to supply a strong inducement to abstain from them, which are yet unsuitable objects of legal repression; because the temptations to do them being strong and concealment easy, it is impossible to prevent them altogether, while at the same time if they are driven into the greatest possible secrecy their mischief is liable to take a much more aggravated form. The leading case of this kind is intercourse of the sexes outside the conjugal relation: it has always been recognised that it is the special function of Positive Morality to keep this within the narrowest possible bounds, by affixing a strong stigma of discredit to such intercourse: but it has also been almost universally held that it would be unwise to make it legally punishable.
Finally, there is much mischief similar in kind to that which law aims at repressing, which it is expedient to leave to morality to deal with, merely because it is not sufficiently important in degree; such as insults and calumnies of minor gravity, deceptions and misrepresentations which have not caused any considerable amount of definite damage, though to leave them uncensured would tend to impair the pleasure and profit of social intercourse.
Let us turn to consider the matters in which the operation of morality by praise rather than censure is of special political importance. The chief case under this head is the expenditure of wealth for public ends, or for the mitigation of the most painful inequalities resulting from the present individualistic distribution of wealth. Expenditure of this kind, unless it shows marked unwisdom in the adaptation of means to ends, is almost universally praised; but abstinence from such expenditure is not commonly blamed in any particular case. Some censure, no doubt, is incurred by a rich man who spends his whole income in luxuries for himself and his family and in exchanging luxurious hospitalities with other rich men. But though he is censured in a broad way for this course of life, the censure is vague and general, and does not attach itself to abstinence from any particular act of philanthropy. It is---rightly, as, I think---held that the struggle to get rich is socially useful, so far as it impels the struggler to render services to society deserving of high remuneration; and that any such restrictions on a rich man's freedom of expenditure, as would amount to graduated taxation enforced by moral censure, must tend to impair the stimulus to this useful effort. Still, undoubtedly, a powerful pressure---though rather in the form of praise than of censure---is exercised by public opinion on rich men in the direction of eleemosynary and public-spirited expenditure, and is powerfully aided by all earnest teachers of the prevalent forms of religion; and under the influence of this moral pressure the amount of wealth and labour voluntarily devoted to the relief of distress, and to the promotion of objects of public utility, is in any modern community so considerable, that it becomes an important factor in the practical determination of the scope of governmental interference for similar purposes. Thus, for instance, political thinkers and statesmen, in advocating the English method of dealing with pauperism, have usually assumed not only that public poor-relief will be supplemented by private almsgiving, but that a fundamentally important part of the work may be left to the latter. As we saw, the distinctive principle of the English system is that Government is not to discriminate between the deserving and the undeserving poor, but to secure to all who are destitute a minimum of subsistence under conditions deterrent but not painful: and this principle would be rejected as too harsh by many who now accept it, were it not for the assumption that private almsgivers will be ready to undertake the task of discrimination which Government declines, and to accord more generous and tender treatment to those who have fallen into distress through undeserved calamities.
Similarly, as regards the building and maintenance of hospitals and asylums for persons physically and mentally afflicted, the provision for education in all grades, the promotion of culture by means of museums and libraries, the endowment of scientific research, and other ends of recognised public utility;---the question what Government should do cannot be answered unless we know what the liberality of private individuals may be expected to accomplish if Government does not interfere.[Back to:] [Elempol, Chapter 13, Section 3] Law and Morality