The Elements of Politics

Henry Sidgwick

Chapter IV


§ 2. Let us proceed to particulars: and take first the class of rights which Blackstone distinguishes as ``Personal Rights''. We find that under this head all civilised systems of law aim at securing the personal safety of individuals no less than their personal liberty; i.e. they seek to prevent the infliction of physical injury or pain---even serious physical discomfort that can hardly be called pain---as well as the imposition of constraint. No doubt physical injury or pain usually involves a kind of constraint; since the injured man, even if not physically disabled, is prevented from doing what be likes by the fear of the recurrence of the injury. This is an important reason for preventing physical injury, and the main reason for making the mere threat of inflicting such injury a legal offence: but it would be absurd to maintain that assault and battery are prohibited solely on account of their tending to produce subsequent alarm in the person assaulted and battered sufficient to have a coercive effect on his conduct: all would admit that they ought to be prevented, even if such coercive effect did not follow. Hence common sense clearly requires us to understand the non-interference, which such prohibition secures, to include not only non-interference with Freedom but non-interference with Happiness.

This is still more obviously true as regards the interference with physical comfort, prohibited under the head of nuisances; and I think it is also true of the attacks on reputation, which all civilised nations aim at preventing by law. No doubt such attacks may be a form of moral coercion: but it is not thought that my right to be protected against calumny depends on the question whether my action has been or is likely to be modified by the unmerited dislike and contempt which the calumny has caused. Again, the defamation of A by B undoubtedly tends to impair A's ability to gratify his desires, by rendering it difficult for him to obtain the co-operation of others. But it palpably strains the common notion of freedom to say that A is less free merely because other people will not do what he wants them to do. And as B's freedom is directly and palpably diminished if he is prohibited from saying what he thinks of A, the restraints of the law of libel can hardly be justified if freedom---in any ordinary sense---and not happiness, be taken as the ultimate criterion.

Again, Individualists---and legislators generally---agree that where law has not succeeded in preventing injury to person or reputation, it ought generally to enforce on the wrongdoer pecuniary compensation for the mischief, unless the injury is one that does not admit of being repaired; so as to bring about a condition of things approximating as far as possible to what would have existed had there been no injury. From the point of view of utilitarian individualism this duty is clear; but if freedom be taken as an absolute end, it is difficult to show how the loss of freedom can properly be compensated by money. For if it be said that the richer man, as such, enjoys more freedom than the poorer, the fundamental aim of Individualism to secure by law equal freedom to all---seems to transform itself into the fundamental aim of extreme Socialism, to secure equal wealth to all.

This leads us naturally to consider the application of the individualistic principle in the department of law which is concerned with the protection of property. The Individualistic minimum of governmental interference is commonly stated to include ``protection of property'' as well as of ``person'': and it is obvious that we are bound to prevent any interference by one man with the property of another, if we suppose private property already instituted; since, in fact, the legal institution of private property means the prohibition of such interference. But the institution itself can hardly be justified by the general principle of Individualism, if we take freedom---in the ordinary sense as an ultimate end, without any regard to utility; it would rather seem that the end would be most completely realised by preventing A from thwarting B's actual use of material things, without going so far as to support B in the permanent exclusion of other men from the enjoyment of things that he has once used. The case is different if we interpret the principle in a utilitarian sense. From this point of view the protection of exclusive use is obviously required in order that individuals may have adequate inducement to labour in adapting matter to the satisfaction of their needs and desires. The natural reward of labour is the full enjoyment of the utility resulting from it; Without the prospect of this natural reward---or of some adequate substitute for it---we could not expect much of the labour to be performed. Hence, from the point of view of utilitarian Individualism, the law ought clearly to aim at securing each individual from the interference of others with his enjoyment of the results of his labour: and, in fact, the provision of this security is often simply stated as the end by reference to which private property is to be justified.

It ought, however, to be observed that this principle does not directly justify the appropriation of material things in their original or unlaboured condition: and if, on the utilitarian ground above given, A is held to interfere with B by using matter to which B has applied his labour, it cannot be denied that B's claim to exclude A from this matter involves some interference with A, if it appreciably restricts A's power of adapting matter to the satisfaction of his needs and desires. Still, I conceive that private property may be clearly justified on the individualistic principle---taken in a utilitarian sense---so far as it can be shown either (1) that the thing appropriated would not practically have been available for human use, if the appropriator had not laboured in seeking for it; or (2) that his appropriation does not materially diminish the opportunities open to other persons of obtaining similar things, owing to the natural abundance of such opportunities. On one or other of these grounds it is easy to justify the appropriation of such things as fish caught in the open sea, or wild animals, plants, or even minerals, found in large tracts of uncultivated country. And it has been maintained by Locke and others, that in the ``beginning and first peopling of the great common of the world'' the appropriation of land was similarly justifiable, ``since there was still enough and as good left, and more than the yet unprovided could use''. But however true this may have been in a primitive condition of human society, it seems evident that social development has long since deprived this justification of any validity; and now, at any rate, the individuals who have not inherited land do not find ``enough and as good'' within their reach. Accordingly, in the case of land, the principle of mutual non-interference is, I conceive, only applicable in a limited and qualified manner. And, in fact, when the question of regulating the appropriation of land has been practically presented to modern states in a simple form---for instance in relation to land as yet unappropriated, in a newly colonised country---it has not commonly been held that individuals desirous of using such land, for agricultural or other purposes, have a right to claim the exclusive use of as much land as they may find it convenient to occupy. The question how such land is to be allotted I shall consider more in detail in the next chapter. Here I am chiefly concerned to point out that Absolute Individualism supplies no method of dealing with its difficulties.

So far I have tacitly assumed that the labour necessary to adapt matter to human uses can be sufficiently encouraged by appropriating to the labourer the thing so adapted. There is, however, another case of property, of considerable importance in modern civilised communities, where quite peculiar obligations have to be imposed on non-owners: I mean the case of ``patents'' and ``copyrights'', by which the exclusive use of certain products of intellectual labour is secured to the producers or to their grantees. Here, from the nature of the labour, the only way of securing its results to the labourer is by prohibiting other members of the community from imitating them. At the same time, such an interference with the freedom of action of the persons prohibited is difficult to justify from the point of view of absolute individualism; since it cannot be shown that this prohibition of imitation tends to secure the persons concerned from physical or moral coercion. But it certainly tends to secure the greatest possible independent production of utility, assuming that the results that would be attained by imitation are such as the imitators could not possibly have arrived at independently. On this assumption, indeed, property in the results of intellectual labour, protected by patents and copyrights, is more simply justifiable on the (utilitarian) principle of mutual non-interference, than property in material things: just because the labour is not ``mixed'' with matter. To what extent the assumption is in different cases legitimate I shall consider in the next chapter.

That an individual who has been allowed to appropriate anything should be allowed to transfer his rights over it wholly or partially to another is from any individualistic point of view obvious: since such transfer involves no fresh interference with the freedom of others, while its prohibition would involve interference with the transferrer's freedom---provided always that the transfer is really a free act. But it has to be observed that this proviso, if Freedom is taken in the ordinary sense, is inadequate to justify the generally accepted conditions of the validity of such transfers. For it is commonly understood that such transfers ought not to be valid if obtained by force or fraud; but the proviso only justifies invalidation when the transferrer is coerced or intimidated by illegal violence, since it is surely strained to say that a man's freedom is impaired by false representations on the part of the transferee. On the other hand, from the utilitarian point of view, it is easy to see that the deception of A by B tends to interfere generally with A's pursuit of his ends: and, in particular, that freedom to transfer property is only expedient because the transferrer may be generally presumed to have consulted his own interest in making the transfer. But if he has been deceived by false representations this presumption obviously fails: and it also fails if the transferrer was for any other special reason clearly incapable of forming a sound judgment as to the value of the thing transferred or the considerations that induced him to transfer it. Thus we see the expediency of making the legal validity of such transfers depend on conditions tending to exclude not merely coercion but deception and also inadequate rationality on the part of the transferrer: and such conditions are in fact imposed in the legal systems of all civilised countries.

So far I have spoken of transfers between living persons: it remains to consider how, on the principle of non-interference, property is to pass from the dead to the living. It is obviously expedient that when a man dies some definite successor or successors to his various rights of property should be determined somehow: but it is less clear how far the will of the dead person should be allowed to determine it. On the one hand, it may be urged that it can hardly be an interference with a man's freedom of action to preclude him from having any influence on mundane affairs after his death: on the other hand, if he could own property and transfer it up to the moment of death without encroaching on the freedom of other members of the community, it is hard to see how this can be interfered with by a transfer that takes effect after death. Each of these opposing negations is, I think, valid; so that the problem is insoluble if Freedom---in the ordinary sense---be taken as an ultimate end. But from the point of view of Utilitarian Individualism the individual's freedom is valued as a means, not to his own happiness alone, but to the general happiness: and the abrogation of the power of bequest would remove from him an important inducement to the exercise of industry and thrift in advancing years, for the benefit of others whose happiness he desires to promote---whether from affection or regard for posthumous reputation, or any other motive. A restriction of bequest in the interest of children or other near relatives would not be exposed to the same objections; but such a measure is hardly justifiable on the individualistic principle---except in the special case of children unable to provide for their own livelihood. It is a different question whether a man should have full power to determine for an indefinite time after death the manner in which the wealth owned by him is to be used, otherwise than by determining his successors in ownership. There are strong reasons for restricting this power, which I will consider later; here I will only say that if it were not allowed to some extent, persons desirous of posthumously regulating the use of their property would try to effect this by bequeathing it to persons pledged to carry out their regulations, and would probably in a large measure succeed; and it would require strong grounds of social utility to justify us in encouraging such persons by complete legal impunity to violate their pledges to the dead.

In the last argument it has been assumed that the performance of contracts to render future services should in general be made legally binding. This is, indeed, a cardinal tenet of Individualists: I do not, however, see how it can be clearly deduced from the principle that adopts Freedom as an ultimate end; since a man would be more completely free---in the ordinary sense---if his volition at any given time could not be legally restricted by any previous expression of will as regards the future: though his power of attaining his ends would, of course, be diminished by his being less able to rely on the future actions of others. Moreover, if we take the realisation of freedom to include the performance of contracts freely entered into, it would follow that if freedom be the ultimate end---such contracts ought to be legally enforced in all cases in which they do not tend to impair the freedom of any third party. But no actual system of law attempts anything like this: in England (e.g.) no engagement to render personal services---except the marriage vow---gives the promisee a legal claim to more than pecuniary damages; all such contracts, if unfulfilled, turn into mere debts of money so far as their legal force goes. And from a utilitarian point of view this limited and qualified enforcement of contract is justifiable: since, on the one hand, it is necessary for social wellbeing that men should rely generally on the fulfilment of mutual engagements; and, on the other hand, what is primarily important from a utilitarian point of view, is not that A should perform his promise to B, but that B should not be damaged by A's non-performance. From this point of view again there are obvious reasons for imposing certain further conditions on the legal validity of engagements for future conduct, eve, when freely entered into: similar in the main to those already noticed as limiting the legal validity of the transfer of property.

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