CLASSICS IN POLITICAL PHILOSOPHY

 

James Fieser

 

12/12/2015

 

Contents

Part 3

14. John Locke — Natural Rights (from Two Treatises of Government)

15. David Hume — The Original Contract and Artificial Justice (from “Of the Original Contract” and Enquiry)

16. Montesquieu — Small Republics, Liberty, and Slavery (from The Spirit of the Laws)

17. Jean-Jacques Rousseau — Political Inequality and the Social Contract (from Discourse on Inequality and The Social Contract)

18. Cesare Beccaria — The Limited Purpose of Punishment (from On Crimes and Punishments)

19. William Blackstone — Origins of Laws and Rights (from Commentaries on the Laws of England)

20. Adam Smith — Capitalism and Limited Government (from The Wealth of Nations)

 

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#14

 

NATURAL RIGHTS

 

John Locke

 

Born near Bristol, England, John Locke (1632-1704) was one of Britain’s most influential philosophers during the 18th century. He principal work in philosophy, An Essay Concerning Human Understanding (1690), defends the empiricist view that all of our ideas originate through experience. In his Two Treatises of Government (1690), though, he develops a notion of natural rights that had profound impact on political institutions throughout the world. In the selections below from this work, he argues that in the state of nature God created people free and equal, and the fundamental law of nature is that no one should harm another person’s life, health, liberty or possessions. Accordingly, we have natural rights to life, health, liberty and possession. The state of nature, Locke argues, is not necessarily a state of war since war is declared only when someone violates our rights. When that happens, the offender deserves to be punished, and even killed. One of our principal rights is that to acquire property—land and other types of wealth—and we first obtain an item of property my mixing our labor with an item. For example, when I cut down a tree that no one owns and make it into a boat, I thereby own the boat. To reduce conflicts and rights violations within the state of nature we make contracts with each other, thereby creating a civil society; but in exchange for this we give up some of our liberty. Through such social contracts we authorize our governments to both defend our natural rights and punish those who violate our rights. We must also follow the will of the majority, which is the only basis of lawful government. Governments, however, do not have absolute authority over us and we may dissolve them through revolution, if necessary, when, through their ineffectiveness, they violate laws and threaten the life, liberty and property of the individual.

 

AGAINST THE DIVINE RIGHT OF KINGS (Chapter 1)

 

Filmer’s View

1. It having been shown in the foregoing discourse, (1) That Adam had not, either by natural right of fatherhood, or by positive donation from God, any such authority over his children, or dominion over the world, as is pretended: (2) That if he had, his heirs, yet, had no right to it: (3) That if his heirs had, there being no law of nature nor positive law of God that determines which is the right heir in all cases that may arise, the right of succession, and consequently of bearing rule, could not have been certainly determined: (4) That if even that had been determined, yet the knowledge of which is the eldest line of Adam's posterity, being so long since utterly lost, that in the races of mankind and families of the world, there remains not to one above another, the least pretence to be the eldest house, and to have the right of inheritance.

            All these premises having, as I think, been clearly made out, it is impossible that the rulers now on earth should make any benefit, or derive any the least shadow of authority from that, which is held to be the fountain of all power, Adam's private dominion and paternal jurisdiction; so that he that will not give just occasion to think that all government in the world is the product only of force and violence, and that men live together by no other rules but that of beasts, where the strongest carries it, and so lay a foundation for perpetual disorder and mischief, tumult, sedition and rebellion, (things that the followers of that hypothesis so loudly cry out against) must of necessity find out another rise of government, another original of political power, and another way of designing and knowing the persons that have it, than what Sir Robert Filmer hath taught us.

 

Political Power

2. To this purpose, I think it may not be amiss, to set down what I take to be political power; that the power of a magistrate over a subject may be distinguished from that of a father over his children, a master over his servant, a husband over his wife, and a lord over his slave. All which distinct powers happening sometimes together in the same man, if he be considered under these different relations, it may help us to distinguish these powers one from wealth, a father of a family, and a captain of a galley.

            3. Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defense of the commonwealth from foreign injury; and all this only for the public good.

 

OF THE STATE OF NATURE (Chapter 2)

 

Freedom and Equality

4. To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

            A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty. . . .

 

Law of Nature

6. But though this be a state of liberty, yet it is not a state of license: though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours. Everyone, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

 

Punishment

7. And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which wills the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby everyone has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world ‘be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if anyone in the state of nature may punish another for any evil he has done, everyone may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, everyone must needs have a right to do.

            8. And thus, in the state of nature, one man comes by a power over another; but yet no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint: for these two are the only reasons, why one man may lawfully do harm to another, which is that we call punishment. In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tie, which is to secure them from injury and violence, being slighted and broken by him. Which being a trespass against the whole species, and the peace and safety of it, provided for by the law of nature, every man upon this score, by the right he has to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on anyone, who has transgressed that law, as may make him repent the doing of it, and thereby deter him, and by his example others, from doing the like mischief. And in the case, and upon this ground, every man has a right to punish the offender, and be executioner of the law of nature. . . .

 

OF THE STATE OF WAR (Chapter 3)

 

Punishing Offenders

16. The state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or anyone that joins with him in his defense, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power.

            17. And hence it is, that he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life: for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for nobody can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i.e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me, thereby puts himself into a state of war with me. He that, in the state of nature, would take away the freedom that belongs to anyone in that state, must necessarily be supposed to have a design to take away everything else that, freedom being the foundation of all the rest; as he that in the state of society would take away the freedom belonging to those of that society or commonwealth, must be supposed to design to take away from them everything else, and so be looked on as in a state of war.

            18. This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away everything else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e., kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.

 

State of Nature vs. State of War

19. And here we have the plain difference between the state of nature and the state of war, which however some men have confounded, are as far distant, as a state of peace, good will, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction, are one from another. Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, though he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defense, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man’s person, makes a state of war, both where there is, and is not, a common judge.

            20. But when the actual force is over, the state of war ceases between those that are in society, and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury, and to prevent future harm: but where no such appeal is, as in the state of nature, for want of positive laws, and judges with authority to appeal to, the state of war once begun, continues, with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace, and desires reconciliation on such terms as may repair any wrongs he has already done, and secure the innocent for the future; nay, where an appeal to the law, and constituted judges, lies open, but the remedy is denied by a manifest perverting of justice, and a barefaced wresting of the laws to protect or indemnify the violence or injuries of some men, or party of men, there it is hard to imagine anything but a state of war: for wherever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however colored with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent, by an unbiased application of it, to all who are under it; wherever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.

            21. To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men’s putting themselves into society, and quitting the state of nature: for where there is an authority, a power on earth, from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power. . . .

 

 

SLAVERY (Chatper 4)

 

Natural Liberty

22. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for everyone to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature. 

            23. This freedom from absolute, arbitrary power, is so necessary to, and closely joined with a man's preservation, that he cannot part with it, but by what forfeits his preservation and life together: for a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases. Nobody can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it. Indeed, having by his fault forfeited his own life, by some act that deserves death; he, to whom he has forfeited it, may (when he has him in his power) delay to take it, and make use of him to his own service, and he does him no injury by it: for, whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.

 

Drudgery

24. This is the perfect condition of slavery, which is nothing else, but the state of war continued, between a lawful conqueror and a captive: for, if once compact enter between them, and make an agreement for a limited power on the one side, and obedience on the other, the state of war and slavery ceases, as long as the compact endures: for, as has been said, no man can, by agreement, pass over to another that which he hath not in himself, a power over his own life. I confess, we find among the Jews, as well as other nations, that men did sell themselves; but, it is plain, this was only to drudgery, not to slavery: for, it is evident, the person sold was not under an absolute, arbitrary, despotical power: for the master could not have power to kill him, at any time, whom, at a certain time, he was obliged to let go free out of his service; and the master of such a servant was so far from having an arbitrary power over his life, that he could not, at pleasure, so much as maim him, but the loss of an eye, or tooth, set him free, Exod. xxi.

 

OF PROPERTY (Chapter 5)

 

Mixing Labor with What is Held in Common

27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this nobody has any right to but himself. The labor of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature has placed it in, it has by this labor something annexed to it, that excludes the common right of other men: for this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.

            28. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labor put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will anyone say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that part, does not depend on the express consent of all the commoners. Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place, where I have a right to them in common with others, become my property, without the assignation or consent of any body. The labor that was mine, removing them out of that common state they were in, has fixed my property in them.

            31. It will perhaps be objected to this, that if gathering the acorns, or other fruits of the earth, etc. makes a right to them, then anyone may engross as much as he will. To which I answer, Not so. The same law of nature, that does by this means give us property, does also bound that property too. God has given us all things richly, 1 Tim. vi. 12. is the voice of reason confirmed by inspiration. But how far has he given it us? To enjoy. As much as anyone can make use of to any advantage of life before it spoils, so much he may by his labor fix a property in: whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus, considering the plenty of natural provisions there was a long time in the world, and the few spenders; and to how small a part of that provision the industry of one man could extend itself, and engross it to the prejudice of others; especially keeping within the bounds, set by reason, of what might serve for his use; there could be then little room for quarrels or contentions about property so established.

 

Acquiring Land

32. But the chief matter of property being now not the fruits of the earth, and the beasts that subsist on it, but the earth itself; as that which takes in and carries with it all the rest; I think it is plain, that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labor does, as it were, enclose it from the common. Nor will it invalidate his right, to say everybody else has an equal title to it; and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow-commoners, all mankind. God, when he gave the world in common to all mankind, commanded man also to labor, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth, i.e. improve it for the benefit of life, and therein lay out something upon it that was his own, his labor. He that in obedience to this command of God, subdued, tilled and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

            33. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same. . . .

            45. Thus labor, in the beginning, gave a right of property, wherever any one was pleased to employ it upon what was common, which remained a long while the far greater part, and is yet more than mankind makes use of. Men, at first, for the most part, contented themselves with what unassisted nature offered to their necessities: and though afterwards, in some parts of the world, (where the increase of people and stock, with the use of money, had made land scarce, and so of some value) the several communities settled the bounds of their distinct territories, and by laws within themselves regulated the properties of the private men of their society, and so, by compact and agreement, settled the property which labor and industry began. And the leagues that have been made between several states and kingdoms, either expressly or tacitly disowning all claim and right to the land in the others possession, have, by common consent, given up their pretences to their natural common right, which originally they had to those countries, and so have, by positive agreement, settled a property amongst themselves, in distinct parts and parcels of the earth. Yet there are still great tracts of ground to be found, which (the inhabitants thereof not having joined with the rest of mankind, in the consent of the use of their common money) lie waste, and are more than the people who dwell on it do, or can make use of, and so still lie in common; though this can scarce happen amongst that part of mankind that have consented to the use of money.

 

OF THE BEGINNING OF POLITICAL (Chapter 8)

 

Consent to the Will of the Majority

95. Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby anyone divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.

            96. For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority: for that which acts any community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it, agreed that it should; and so everyone is bound by that consent to be concluded by the majority. And therefore we see, that in assemblies, empowered to act by positive laws, where no number is set by that positive law which empowers them, the act of the majority passes for the act of the whole, and of course determines, as having, by the law of nature and reason, the power of the whole.

 

The Constraints of the Original Contract

97. And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to everyone of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature. For what appearance would there be of any compact? What new engagement if he were no farther tied by any decrees of the society, than he himself thought fit, and did actually consent to? This would be still as great a liberty, as he himself had before his compact, or anyone else in the state of nature has, who may submit himself, and consent to any acts of it if he thinks fit.

            98. For if the consent of the majority shall not, in reason, be received as the act of the whole, and conclude every individual; nothing but the consent of every individual can make any thing to be the act of the whole: but such a consent is next to impossible ever to be had, if we consider the infirmities of health, and avocations of business, which in a number, though much less than that of a common-wealth, will necessarily keep many away from the public assembly. To which if we add the variety of opinions, and contrariety of interests, which unavoidably happen in all collections of men, the coming into society upon such terms would be only like Cato’s coming into the theatre, only to go out again. Such a constitution as this would make the mighty Leviathan of a shorter duration, than the feeblest creatures, and not let it outlast the day it was born in: which cannot be supposed, till we can think, that rational creatures should desire and constitute societies only to be dissolved: for where the majority cannot conclude the rest, there they cannot act as one body, and consequently will be immediately dissolved again.

            99. Whosoever therefore out of a state of nature unite into a community, must be understood to give up all the power, necessary to the ends for which they unite into society, to the majority of the community, unless they expressly agreed in any number greater than the majority. And this is done by barely agreeing to unite into one political society, which is all the compact that is, or needs be, between the individuals, that enter into, or make up a commonwealth. And thus that, which begins and actually constitutes any political society, is nothing but the consent of any number of freemen capable of a majority to unite and incorporate into such a society. And this is that, and that only, which did, or could give beginning to any lawful government in the world.

 

OF THE DISSOLUTION OF GOVERNMENT (Chapter 19)

 

Justification for Insurrection

212. Besides this over-turning from without, governments are dissolved from within. First, when the legislative is altered.

            221. There is therefore, secondly, another way whereby governments are dissolved, and that is, when the legislative, or the prince, either of them, act contrary to their trust. First, the legislative acts against the trust reposed in them, when they endeavor to invade the property of the subject, and to make themselves, or any part of the community, masters, or arbitrary disposers of the lives, liberties, or fortunes of the people.

            222. The reason why men enter into society, is the preservation of their property; and the end why they choose and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which everyone designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavor to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God has provided for all men, against force and violence. Whenever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavor to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society. What I have said here, concerning the legislative in general, holds true also concerning the supreme executor, who having a double trust put in him, both to have a part in the legislative, and the supreme execution of the law, acts against both, when he goes about to set up his own arbitrary will as the law of the society. He acts also contrary to his trust, when he either employs the force, treasure, and offices of the society, to corrupt the representatives, and gain them to his purposes; or openly pre-engages the electors, and prescribes to their choice, such, whom he has, by solicitations, threats, promises, or otherwise, won to his designs; and employs them to bring in such, who have promised before-hand what to vote, and what to enact.

 

Justification for Civil War

228. But if they, who say it lays a foundation for rebellion, mean that it may occasion civil wars, or intestine broils, to tell the people they are absolved from obedience when illegal attempts are made upon their liberties or properties, and may oppose the unlawful violence of those who were their magistrates, when they invade their properties contrary to the trust put in them; and that therefore this doctrine is not to be allowed, being so destructive to the peace of the world: they may as well say, upon the same ground, that honest men may not oppose robbers or pirates, because this may occasion disorder or bloodshed. If any mischief come in such cases, it is not to be charged upon him who defends his own right, but on him that invades his neighbors. If the innocent honest man must quietly quit all he has, for peace sake, to him who will lay violent hands upon it, I desire it may be considered, what a kind of peace there will be in the world, which consists only in violence and rapine; and which is to be maintained only for the benefit of robbers and oppressors. Who would not think it an admirable peace betwixt the mighty and the mean, when the lamb, without resistance, yielded his throat to be torn by the imperious wolf?

 

Source: John Locke, Two Treatises of Government (1690), Treatise 2.

 

Questions for Review

1. In the state of nature, what are the two main rights that we have concerning punishment of others?

2. According to Locke, why are we justified in killing a thief even though the thief has not overtly threatened our lives?

3. What is the one great reason for us to put ourselves into society and thereby leave the state of nature?

4. In creating our own property, Locke argues that we don’t need permission from everyone else to take and use those things that are held in common. What is his reasoning?

5. Who is at fault for the harm that comes from civil war?

 

Questions for Analysis

1. Locke’s four natural rights are those of life, health, liberty and possessions. Jefferson’s list of rights consists of life, liberty and happiness. Is one of these lists more fundamental or better than the other? Explain.

2. Locke argues that when we form political societies for the benefit of protection, we must give up some of our liberty. Describe the kinds of freedoms that we relinquish.

3. Might Locke’s conception of property acquisition justify the exploitation of land owned by indigenous tribal people?

4. Criticize Locke’s defense of revolution.

5. How does Locke’s defense of revolution differ from that of Brutus’s, and which is better?

 

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#15

 

THE ORIGINAL CONTRACT AND ARTIFICIAL JUSTICE

 

David Hume

 

David Hume (1711–1776) was born in Edinburgh, Scotland, and his philosophy was marked by a skeptical questioning of key assumptions that writers before him took for granted. In the selections below, Hume attacks two basic notions in political philosophy: the social contract and the instinctive nature of justice regarding private property. In his 1748 essay “Of the Original Contract,” he argues that political allegiance is not grounded in any social contract but instead on our general observation that society cannot be maintained without a governmental system. He concedes that in savage times there may have been an unwritten contract among tribe members for the sake of peace and order. However, he argues, this was no permanent basis of government as modern social contract theorists pretend. There is nothing to transmit that original contract onwards from generation to generation, and our experience of actual political events show that governmental authority is founded on conquest, not elections or consent. Political allegiance is ultimately based on a primary instinct of selfishness, and only through reflection will I see how I benefit from an orderly society. In his Enquiry Concerning the Principles of Morals (1751), Hume examines the origin of our conception of justice regarding private property. We have no primary instinct to recognize private property, and all conceptions of justice regarding property are founded solely on how useful the convention of private property is to us. We can see how property ownership is tied to usefulness when considering scenarios concerning the availability or unavailability of necessities. When necessities are in overabundance, I can take what I want any time, and there is no usefulness in my claiming any property as my own. When the opposite happens and necessities are scarce, I don’t acknowledge anyone’s claim to property and I take what I want from others for my own survival. Further, if we closely inspect human nature, we will never find a primary instinct that inclines us to acknowledge private property. It is nothing like the primary instinct of nest building in birds. While the sense of justice regarding private property is a fixed habit with us today, we still always consider the usefulness that convention of private property has on society.

 

AGAINST THE ORIGINAL CONTRACT: ALLEGIANCE BASED MAINLY ON SOCIETY’S NECESSITY

 

Original Contract in Savage Times

. . . When we consider how nearly equal all men are in their bodily force, and even in their mental powers and faculties, till cultivated by education, we must necessarily allow that nothing but their own consent could, at first, associate them together, and subject them to any authority. The people, if we trace government to its first origin in the woods and deserts, are the source of all power and jurisdiction, and voluntarily, for the sake of peace and order, abandoned their native liberty, and received laws from their equal and companion. The conditions upon which they were willing to submit were either expressed, or were so clear and obvious, that it might well be esteemed superfluous to express them. If this, then, be meant by the original contract, it cannot be denied, that all government is, at first, founded on a contract, and that the most ancient rude combinations of mankind were formed chiefly by that principle. In vain are we asked in what records this charter of our liberties is registered. It was not written on parchment, nor yet on leaves or barks of trees. It preceded the use of writing and all the other civilized arts of life. But we trace it plainly in the nature of man, and in the equality, or something approaching equality, which we find in all the individuals of that species. The force which now prevails, and which is founded on fleets and armies, is plainly political, and derived from authority, the effect of established government. A man’s natural force consists only in the vigor of his limbs, and the firmness of his courage, which could never subject multitudes to the command of one. Nothing but their own consent, and their sense of the advantages resulting from peace and order, could have had that influence.

            Yet even this consent was long very imperfect, and could not be the basis of a regular administration. The chieftain, who had probably acquired his influence during the continuance of war, ruled more by persuasion than command. And till he could employ force to reduce the refractory and disobedient, the society could scarcely be said to have attained a state of civil government. No compact or agreement, it is evident, was expressly formed for general submission, an idea far beyond the comprehension of savages. Each exertion of authority in the chieftain must have been particular, and called forth by the present exigencies of the case. The sensible utility resulting from his interposition made these exertions become daily more frequent. And their frequency gradually produced an habitual, and, if you please to call it so, a voluntary, and therefore precarious, acquiescence in the people.

 

The Modern Conception of an Original Contract

But philosophers who have embraced a party (if that be not a contradiction in terms) are not contented with these concessions. They assert not only that government in its earliest infancy arose from consent or rather the voluntary acquiescence of the people; but also that, even at present, when it has attained its full maturity, it rests on no other foundation. They affirm that all men are still born equal, and owe allegiance to no prince or government, unless bound by the obligation and sanction of a promise. And as no man, without some equivalent, would forego the advantages of his native liberty, and subject himself to the will of another; this promise is always understood to be conditional, and imposes on him no obligation, unless he meet with justice and protection from his sovereign. These advantages the sovereign promises him in return; and if he fail in the execution, he has broken, on his part, the articles of engagement, and has thereby freed his subject from all obligations to allegiance. Such, according to these philosophers, is the foundation of authority in every government; and such the right of resistance, possessed by every subject.

            But would these reasoners look abroad into the world, they would meet with nothing that in the least corresponds to their ideas, or can warrant so refined and philosophical a system. On the contrary, we find everywhere princes, who claim their subjects as their property, and assert their independent right of sovereignty, from conquest or succession. We find also everywhere subjects, who acknowledge this right in their prince, and suppose themselves born under obligations of obedience to a certain sovereign, as much as under the ties of reverence and duty to certain parents. These connections are always conceived to be equally independent of our consent, in Persia and China; in France and Spain; and even in Holland and England, wherever the doctrines above-mentioned have not been carefully inculcated. Obedience or subjection becomes so familiar that most men never make any enquiry about its origin or cause, more than about the principle of gravity, resistance, or the most universal laws of nature. Or if curiosity ever move them, as soon as they learn that they themselves and their ancestors have for several ages, or from time immemorial, been subject to such a form of government or such a family, they immediately acquiesce and acknowledge their obligation to allegiance. Were you to preach in most parts of the world that political connections are founded altogether on voluntary consent or a mutual promise, the magistrate would soon imprison you as seditious for loosening the ties of obedience—if your friends did not before shut you up as delirious for advancing such absurdities. It is strange that an act of the mind, which every individual is supposed to have formed, and after he came to the use of reason too, otherwise it could have no authority; that this act, I say, should be so much unknown to all of them, that, over the face of the whole earth, there scarcely remain any traces or memory of it.

 

No Hereditarily Binding Contract

But the contract on which government is founded is said to be the original contract, and consequently may be supposed too old to fall under the knowledge of the present generation. If the agreement, by which savage men first associated and conjoined their force, be here meant, this is acknowledged to be real; but being so ancient, and being obliterated by a thousand changes of government and princes, it cannot now be supposed to retain any authority. If we would say anything to the purpose, we must assert that every particular government, which is lawful, and which imposes any duty of allegiance on the subject, was, at first, founded on consent and a voluntary compact. But besides that this supposes the consent of the fathers to bind the children, even to the most remote generations (which republican writers will never allow), besides this, I say, it is not justified by history or experience, in any age or country of the world.

 

Societies Founded by Conquest

Almost all the governments which exist at present, or of which there remains any record in story, have been founded originally either on usurpation or conquest, or both, without any pretence of a fair consent, or voluntary subjection of the people. When an artful and bold man is placed at the head of an army or faction, it is often easy for him by employing, sometimes violence, sometimes false pretences, to establish his dominion over a people a hundred times more numerous than his partisans. He allows no such open communication that his enemies can know, with certainty, their number or force. He gives them no leisure to assemble together in a body to oppose him. Even all those who are the instruments of his usurpation, may wish his fall. But their ignorance of each other’s intention keeps them in awe, and is the sole cause of his security. By such arts as these, many governments have been established, and this is all the original contract which they have to boast of.

            The face of the earth is continually changing by the increase of small kingdoms into great empires, by the dissolution of great empires into smaller kingdoms, by the planting of colonies, by the migration of tribes. Is there anything discoverable in all these events but force and violence? Where is the mutual agreement or voluntary association so much talked of?

            Even the smoothest way by which a nation may receive a foreign master, by marriage or a will, is not extremely honorable for the people, but supposes them to be disposed of like a dowry or a legacy according to the pleasure or interest of their rulers.

 

Elections no foundation of Governmental Allegiance

But where no force interposes, and election takes place, what is this election so highly vaunted? It is either the combination of a few great men who decide for the whole, and will allow of no opposition. Or it is the fury of a multitude that follow a seditious ringleader, who is not known, perhaps, to a dozen among them, and who owes his advancement merely to his own impudence, or to the momentary caprice of his fellows.

            Are these disorderly elections, which are rare too, of such mighty authority as to be the only lawful foundation of all government and allegiance?

            In reality, there is not a more terrible event than a total dissolution of government, which gives liberty to the multitude, and makes the determination or choice of a new establishment depend upon a number, which nearly approaches to that of the body of the people: for it never comes entirely to the whole body of them. Every wise man, then, wishes to see, at the head of a powerful and obedient army, a general who may speedily seize the prize, and give to the people a master which they are so unfit to choose for themselves. So little correspondent is fact and reality to those philosophical notions. . . .

 

Consent of the Governed is Rare

It is in vain to say that all governments are or should be at first founded on popular consent as much as the necessity of human affairs will admit. This favors entirely my pretension. I maintain that human affairs will never admit of this consent, seldom of the appearance of it. But that conquest or usurpation, that is, in plain terms, force, by dissolving the ancient governments, is the origin of almost all the new ones, which were ever established in the world. And that in the few cases where consent may seem to have taken place, it was commonly so irregular, so confined, or so much intermixed either with fraud or violence, that it cannot have any great authority.

            My intention here is not to exclude the consent of the people from being one just foundation of government where it has place. It is surely the best and most sacred of any. I only pretend that it has very seldom had place in any degree, and never almost in its full extent. And that therefore some other foundation of government must also be admitted.

            Were all men possessed of so inflexible a regard to justice that, of themselves, they would totally abstain from the properties of others, they had for ever remained in a state of absolute liberty, without subjection to any magistrate or political society. But this is a state of perfection of which human nature is justly deemed incapable. Again, were all men possessed of so perfect an understanding as always to know their own interests, no form of government had ever been submitted to but what was established on consent, and was fully canvassed by every member of the society. But this state of perfection is likewise much superior to human nature. Reason, history, and experience show us that all political societies have had an origin much less accurate and regular. And were one to choose a period of time when the people’s consent was the least regarded in public transactions, it would be precisely on the establishment of a new government. In a settled constitution, their inclinations are often consulted. But during the fury of revolutions, conquests, and public convulsions, military force or political craft usually decides the controversy.

 

Obedience through Fear, Necessity, and Acquiescence

When a new government is established by whatever means, the people are commonly dissatisfied with it, and pay obedience more from fear and necessity than from any idea of allegiance or of moral obligation. The prince is watchful and jealous, and must carefully guard against every beginning or appearance of insurrection. Time, by degrees, removes all these difficulties, and accustoms the nation to regard, as their lawful or native princes, that family which, at first, they considered as usurpers or foreign conquerors. In order to found this opinion, they have no recourse to any notion of voluntary consent or promise, which, they know, never was in this case either expected or demanded. The original establishment was formed by violence, and submitted to from necessity. The subsequent administration is also supported by power, and acquiesced in by the people, not as a matter of choice, but of obligation. They imagine not that their consent gives their prince a title: But they willingly consent, because they think that, from long possession, he has acquired a title, independent of their choice or inclination.

 

No Tacit Consent because No Real Choice

Should it be said that by living under the dominion of a prince, which one might leave, every individual has given a tacit consent to his authority, and promised him obedience; it may be answered that such an implied consent can only have place where a man imagines that the matter depends on his choice. But where he thinks (as all mankind do who are born under established governments) that by his birth he owes allegiance to a certain prince or certain form of government, it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and disclaims.

            Can we seriously say that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean and perish the moment he leaves her. . . .

            A company of men, who should leave their native country, in order to people some uninhabited region, might dream of recovering their native freedom. But they would soon find that their prince still laid claim to them, and called them his subjects, even in their new settlement. And in this he would but act conformably to the common ideas of mankind.

            The truest tacit consent of this kind that is ever observed is when a foreigner settles in any country, and is beforehand acquainted with the prince, and government, and laws, to which he must submit. Yet is his allegiance, though more voluntary, much less expected or depended on than that of a natural born subject. On the contrary, his native prince still asserts a claim to him. And if he punish not the renegade when he seizes him in war with his new prince’s commission, this clemency is not founded on the municipal law which in all countries condemns the prisoner, but on the consent of princes, who have agreed to this indulgence, in order to prevent reprisals. . . .

 

Allegiance an Artificial Duty based on the Necessity of Society

But would we have a more regular, at least a more philosophical, refutation of this principle of an original contract or popular consent, perhaps the following observations may suffice.

            All moral duties may be divided into two kinds. The first are those to which men are impelled by a natural instinct or immediate propensity, which operates on them independent of all ideas of obligation, and of all views, either to public or private utility. Of this nature are love of children, gratitude to benefactors, pity to the unfortunate. When we reflect on the advantage, which results to society from such humane instincts, we pay them the just tribute of moral approbation and esteem. But the person, actuated by them, feels their power and influence, antecedent to any such reflection.

            The second kind of moral duties are such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation, when we consider the necessities of human society, and the impossibility of supporting it if these duties were neglected. It is thus justice or a regard to the property of others, fidelity or the observance of promises, become obligatory and acquire an authority over mankind. For as it is evident that every man loves himself better than any other person, he is naturally impelled to extend his acquisitions as much as possible. And nothing can restrain him in this propensity but reflection and experience, by which he learns the pernicious effects of that license, and the total dissolution of society which must ensue from it. His original inclination, therefore, or instinct, is here checked and restrained by a subsequent judgment or observation.

            The case is precisely the same with the political or civil duty of allegiance, as with the natural duties of justice and fidelity. Our primary instincts lead us either to indulge ourselves in unlimited freedom, or to seek dominion over others. And it is reflection only, which engages us to sacrifice such strong passions to the interests of peace and public order. A small degree of experience and observation suffices to teach us that society cannot possibly be maintained without the authority of magistrates, and that this authority must soon fall into contempt where exact obedience is not paid to it. The observation of these general and obvious interests is the source of all allegiance, and of that moral obligation which we attribute to it.

            What necessity, therefore, is there to found the duty of allegiance or obedience to magistrates on that of fidelity or a regard to promises, and to suppose, that it is the consent of each individual, which subjects him to government; when it appears that both allegiance and fidelity stand precisely on the same foundation, and are both submitted to by mankind, on account of the apparent interests and necessities of human society? We are bound to obey our sovereign, it is said, because we have given a tacit promise to that purpose. But why are we bound to observe our promise? It must here be asserted, that the commerce and intercourse of mankind, which are of such mighty advantage, can have no security where men pay no regard to their engagements. In like manner, may it be said, that men could not live at all in society, at least in a civilized society, without laws and magistrates and judges, to prevent the encroachments of the strong upon the weak, of the violent upon the just and equitable. The obligation to allegiance being of like force and authority with the obligation to fidelity, we gain nothing by resolving the one into the other. The general interests or necessities of society are sufficient to establish both. . . .

 

AGAINST NATURAL JUSTICE: PROPERTY BASED SOLELY ON USEFULNESS

 

Justice regarding Property based Solely on Utility

That justice is useful to society, and consequently that part of its merit, at least, must arise from that consideration, it would be a superfluous undertaking to prove. That public utility is the sole origin of justice, and that reflections on the beneficial consequences of this virtue are the sole foundation of its merit, this proposition, being more curious and important, will better deserve our examination and inquiry.

 

No need for Private Property with Abundance

Let us suppose that nature has bestowed on the human race such profuse abundance of all external conveniences, that, without any uncertainty in the event, without any care or industry on our part, every individual finds himself fully provided with whatever his most voracious appetites can want, or luxurious imagination wish or desire. His natural beauty, we shall suppose, surpasses all acquired ornaments: the perpetual clemency of the seasons renders useless all clothes or covering: the raw herbage affords him the most delicious fare; the clear fountain, the richest beverage. No laborious occupation required: no tillage, no navigation. Music, poetry, and contemplation form his sole business: conversation, mirth, and friendship his sole amusement. It seems evident that, in such a happy state, every other social virtue would flourish, and receive tenfold increase; but the cautious, jealous virtue of justice would never once have been dreamed of. For what purpose make a partition of goods, where everyone has already more than enough? Why give rise to property, where there cannot possibly be any injury? Why call this object mine, when upon the seizing of it by another, I need but stretch out my hand to possess myself to what is equally valuable? Justice, in that case, being totally useless, would be an idle ceremonial, and could never possibly have place in the catalogue of virtues.

            We see even in the present necessitous condition of mankind that, wherever any benefit is bestowed by nature in an unlimited abundance, we leave it always in common among the whole human race, and make no subdivisions of right and property. Water and air, though the most necessary of all objects, are not challenged as the property of individuals; nor can any man commit injustice by the most lavish use and enjoyment of these blessings. In fertile extensive countries, with few inhabitants, land is regarded on the same footing. And no topic is so much insisted on by those, who defend the liberty of the seas, as the unexhausted use of them in navigation. Were the advantages, procured by navigation, as inexhaustible, these reasoners had never had any adversaries to refute; nor had any claims ever been advanced of a separate, exclusive dominion over the ocean.

            It may happen in some countries at some periods, that there be established a property in water, none in land, if the latter be in greater abundance than can be used by the inhabitants, and the former be found, with difficulty, and in very small quantities.

 

No Private Property with Extensive Benevolence

Again, suppose that, though the necessities of human race continue the same as at present, yet the mind is so enlarged, and so replete with friendship and generosity, that every man has the utmost tenderness for every man, and feels no more concern for his own interest than for that of his fellows. It seems evident that the use of justice would, in this case, be suspended by such an extensive benevolence, nor would the divisions and barriers of property and obligation have ever been thought of. Why should I bind another, by a deed or promise, to do me any good office, when I know that he is already prompted, by the strongest inclination, to seek my happiness, and would, of himself, perform the desired service; except the hurt, he thereby receives, be greater than the benefit accruing to me? In which case, he knows, that, from my innate humanity and friendship, I should be the first to oppose myself to his imprudent generosity. Why raise landmarks between my neighbor’s field and mine, when my heart has made no division between our interests, but shares all his joys and sorrows with the same force and vivacity as if originally my own? Every man, upon this supposition, being a second self to another, would trust all his interests to the discretion of every man, without jealousy, without partition, without distinction. And the whole human race would form only one family, where all would lie in common, and be used freely, without regard to property; but cautiously too, with as entire regard to the necessities of each individual, as if our own interests were most intimately concerned.

            In the present disposition of the human heart, it would, perhaps, be difficult to find complete instances of such enlarged affections. But still we may observe that the case of families approaches towards it; and the stronger the mutual benevolence is among the individuals, the nearer it approaches; till all distinction of property be, in a great measure, lost and confounded among them. Between married persons, the cement of friendship is by the laws supposed so strong as to abolish all division of possessions; and has often, in reality, the force ascribed to it. And it is observable that, during the ardor of new enthusiasms, when every principle is inflamed into extravagance, the community of goods has frequently been attempted. And nothing but experience of its inconveniences, from the returning or disguised selfishness of men, could make the imprudent fanatics adopt anew the ideas of justice and of separate property. So true is it that this virtue derives its existence entirely from its necessary use to the intercourse and social state of mankind.

 

No Private Property with Extreme Lack of Necessities

To make this truth more evident, let us reverse the foregoing suppositions, and carrying everything to the opposite extreme, consider what would be the effect of these new situations. Suppose a society to fall into such want of all common necessaries, that the utmost frugality and industry cannot preserve the greater number from perishing, and the whole from extreme misery. It will readily, I believe, be admitted that the strict laws of justice are suspended, in such a pressing emergence, and give place to the stronger motives of necessity and self-preservation. Is it any crime, after a shipwreck, to seize whatever means or instrument of safety one can lay hold of, without regard to former limitations of property? Or if a city besieged were perishing with hunger; can we imagine, that men will see any means of preservation before them, and lose their lives, from a scrupulous regard to what, in other situations, would be the rules of equity and justice? The use and tendency of that virtue is to procure happiness and security by preserving order in society: but where the society is ready to perish from extreme necessity, no greater evil can be dreaded from violence and injustice; and every man may now provide for himself by all the means which prudence can dictate or humanity permit. The public, even in less urgent necessities, opens granaries without the consent of proprietors, as justly supposing, that the authority of magistracy may, consistent with equity, extend so far. But were any number of men to assemble without the tie of laws or civil jurisdiction, would an equal partition of bread in a famine, though effected by power and even violence, be regarded as criminal or injurious?

 

Suspension of Justice in Situations of Great Crime and War

Suppose likewise that it should be a virtuous man's fate to fall into the society of ruffians, remote from the protection of laws and government. What conduct must he embrace in that melancholy situation? He sees such a desperate rapaciousness prevail, such a disregard to equity, such contempt of order, such stupid blindness to future consequences, as must immediately have the most tragical conclusion, and must terminate in destruction to the greater number, and in a total dissolution of society to the rest. He, meanwhile, can have no other expedient than to arm himself, to whomever the sword he seizes, or the buckler, may belong: To make provision of all means of defense and security. And his particular regard to justice being no longer of use to his own safety or that of others, he must consult the dictates of self-preservation alone, without concern for those who no longer merit his care and attention.

            When any man, even in political society, renders himself by his crimes obnoxious to the public, he is punished by the laws in his goods and person. That is, the ordinary rules of justice are, with regard to him, suspended for a moment, and it becomes equitable to inflict on him, for the benefit of society, what otherwise he could not suffer without wrong or injury.

            The rage and violence of public war: what is it but a suspension of justice among the warring parties, who perceive that this virtue is now no longer of any use or advantage to them? The laws of war, which then succeed to those of equity and justice, are rules calculated for the advantage and utility of that particular state, in which men are now placed. And were a civilized nation engaged with barbarians who observed no rules even of war, the former must also suspend their observance of them, where they no longer serve to any purpose, and must render every action or recounter as bloody and pernicious as possible to the first aggressors.

 

Justice Arises from Utility

Thus, the rules of equity or justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that utility, which results to the public from their strict and regular observance. Reverse, in any considerable circumstance, the condition of men. Produce extreme abundance or extreme necessity. Implant in the human breast perfect moderation and humanity, or perfect rapaciousness and malice. By rendering justice totally useless, you thereby totally destroy its essence, and suspend its obligation upon mankind. The common situation of society is a medium amidst all these extremes. We are naturally partial to ourselves, and to our friends, but are capable of learning the advantage resulting from a more equitable conduct. Few enjoyments are given us from the open and liberal hand of nature. But by art, labor, and industry, we can extract them in great abundance. Hence the ideas of property become necessary in all civil society. Hence justice derives its usefulness to the public. And hence alone arises its merit and moral obligation. . . .

            We may conclude, therefore, that, in order to establish laws for the regulation of property, we must be acquainted with the nature and situation of man, must reject appearances, which may be false, though specious, and must search for those rules, which are, on the whole, most useful and beneficial. Vulgar sense and slight experience are sufficient for this purpose; where men give not way to too selfish avidity, or too extensive enthusiasm.

            Who sees not, for instance, that whatever is produced or improved by a man's art or industry ought, forever, to be secured to him, in order to give encouragement to such useful habits and accomplishments? That the property ought also to descend to children and relations for the same useful purpose? That it may be alienated by consent, in order to beget that commerce and intercourse, which is so beneficial to human society? And that all contracts and promises ought carefully to be fulfilled, in order to secure mutual trust and confidence, by which the general interest of mankind is so much promoted?

            Examine the writers on the laws of nature; and you will always find that, whatever principles they set out with, they are sure to terminate here at last, and to assign, as the ultimate reason for every rule which they establish, the convenience and necessities of mankind. A concession thus extorted, in opposition to systems, has more authority than if it had been made in prosecution of them.

            What other reason, indeed, could writers ever give why this must be mine and that yours, since uninstructed nature surely never made any such distinction? The objects which receive those appellations are, of themselves, foreign to us. They are totally disjoined and separated from us, and nothing but the general interests of society can form the connection. . . .

 

Justice does not Arise from Instinct

The dilemma seems obvious: As justice evidently tends to promote public utility and to support civil society, the sentiment of justice is either derived from our reflecting on that tendency, or like hunger, thirst, and other appetites, resentment, love of life, attachment to offspring, and other passions, arises from a simple original instinct in the human breast, which nature has implanted for like salutary purposes. If the latter be the case, it follows that property, which is the object of justice, is also distinguished by a simple original instinct, and is not ascertained by any argument or reflection. But who is there that ever heard of such an instinct? Or is this a subject in which new discoveries can be made? We may as well expect to discover in the body new senses, which had before escaped the observation of all mankind.

            But farther, though it seems a very simple proposition to say that nature, by an instinctive sentiment, distinguishes property, yet in reality we shall find, that there are required for that purpose ten thousand different instincts, and these employed about objects of the greatest intricacy and nicest discernment. For when a definition of property is required, that relation is found to resolve itself into any possession acquired by occupation, by industry, by prescription, by inheritance, by contract, etc. Can we think that nature, by an original instinct, instructs us in all these methods of acquisition?

            These words too, inheritance and contract, stand for ideas infinitely complicated, and to define them exactly a hundred volumes of laws, and a thousand volumes of commentators, have not been found sufficient. Does nature, whose instincts in men are all simple, embrace such complicated and artificial objects, and create a rational creature, without trusting anything to the operation of his reason?

            But even though all this were admitted, it would not be satisfactory. Positive laws can certainly transfer property. Is it by another original instinct that we recognize the authority of kings and senates, and mark all the boundaries of their jurisdiction? Judges too, even though their sentence be erroneous and illegal, must be allowed, for the sake of peace and order, to have decisive authority, and ultimately to determine property. Have we original innate ideas of praetors and chancellors and juries? Who sees not, that all these institutions arise merely from the necessities of human society?

            All birds of the same species in every age and country built their nests alike; in this we see the force of instinct. Men, in different times and places, frame their houses differently: Here we perceive the influence of reason and custom. A like inference may be drawn from comparing the instinct of generation and the institution of property.

            How great soever the variety of municipal laws, it must be confessed, that their chief outlines pretty regularly concur; because the purposes, to which they tend, are everywhere exactly similar. In like manner, all houses have a roof and walls, windows and chimneys; though diversified in their shape, figure, and materials. The purposes of the latter, directed to the conveniences of human life, discover not more plainly their origin from reason and reflection, than do those of the former, which point all to a like end.

            I need not mention the variations, which all the rules of property receive from the finer turns and connections of the imagination, and from the subtleties and abstractions of law-topics and reasonings. There is no possibility of reconciling this observation to the notion of original instincts.

            What alone will beget a doubt concerning the theory on which I insist, is the influence of education and acquired habits, by which we are so accustomed to blame injustice, that we are not in every instance conscious of any immediate reflection on the pernicious consequences of it. The views the most familiar to us are apt, for that very reason, to escape us. And what we have very frequently performed from certain motives, we are apt likewise to continue mechanically, without recalling on every occasion the reflections which first determined us. The convenience, or rather necessity, which leads to justice is so universal, and everywhere points so much to the same rules, that the habit takes place in all societies; and it is not without some scrutiny that we are able to ascertain its true origin. The matter, however, is not so obscure, but that even in common life we have every moment recourse to the principle of public utility and ask, “what must become of the world if such practices prevail? how could society subsist under such disorders?” Were the distinction or separation of possessions entirely useless, can anyone conceive that it ever should have obtained in society?

            Thus we seem, upon the whole, to have attained a knowledge of the force of that principle here insisted on, and can determine what degree of esteem or moral approbation may result from reflections on public interest and utility. . . .

 

Source: David Hume, “Of the Original Contract” (1748) from Essays, Moral, Political and Literary; “Of Justice” from Enquiry concerning the Principles of Morals (1751), Sect. 3.

 

Questions for Review

1. In the section on “societies founded by conquest” Hume describes how governments are actually established. What is his explanation?

2. What are Hume’s arguments against governments being founded on elections and the consent of the governed?

3. Hume argues that allegiance is an artificial duty based on the necessity of society. Explain his argument.

4. Hume presents several examples to show that the sense of justice regarding property arises from usefulness. What are his examples?

5. Hume presents four or so arguments to show that justice regarding property does not arise from a natural instinct. What his arguments?

 

Questions for Analysis

1. In the section on “the modern conception of an original contract,” although not mentioning Locke by name, Hume presents Locke’s view of the social contract and the justification for revolution. What his Hume’s critique of Locke’s position, and how might Locke respond?

2. In the section on “obedience through fear, necessity, and acquiescence” Hume describes the normal reaction that citizens have to new governments. Give Hume’s account of this and discuss whether you agree.

3. In the Crito, Plato argued that by choosing to stay in a country one tacitly agrees to follow the government. In the section on “no tacit consent because no real choice” Hume argues against this view. Present his argument and discuss how Plato might respond.

4. Although Hume does not use the term “natural rights,” he is essentially attacking Locke’s view of the natural right to property by arguing that the sense of justice regarding property arises solely from its usefulness. Present Hume’s basic argument and discuss how Locke might respond.

5. In the section “justice does not arise from instinct” Hume argues against a natural instinct of property ownership. Discuss his main arguments and say whether you agree.

 

_______________________

 

#16

 

SMALL REPUBLICS, LIBERTY AND SLAVERY

 

Montesquieu

 

Charles de Secondat, Baron de Montesquieu (1689–1755) was born into a wealthy family in southwest France, and is among that country’s most influential political writers. His most famous work, The Spirit of the Laws (1748), was 20 years in the making and defends constitutional forms of government as the best means of preserving political liberties. Although his controversial work was placed on the Catholic Church index of banned books, it was nevertheless hailed in Britain and the American Colonies. The selections below are from this work and focus on three issues for which he is particularly famous. The first is what is now called the “small republic thesis”: small countries operate best when they are republics (as opposed to monarchies or aristocracies), and they can best protect themselves through confederations with other small countries. Medium-size countries function best as monarchies, while large empires work best as aristocracies. The second issue concerns the importance of having a balanced separation of political powers. All countries, according to Montesquieu, aim at self-preservation, but England in particularly is a model for also aiming at political liberty. To preserve such liberty, a balanced separation of powers is needed, which, he argues, involves three distinct branches of government: the legislative, executive and judiciary. There can, for example, be no political liberty when the legislative and executive branches are united in the same person, since he can both enact and enforce a tyrannical law. The third issue is slavery, and Montesquieu attacks several of the common defenses of that institution. Some of the more absurd justifications of slavery he criticizes through satirical irony.

 

ADVANTAGES OF SMALL REPUBLICS

 

8.16. Properties of a Republic

It is natural for a republic to have only a small territory, otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation. There are trusts too considerable to be placed in any single subject; he has interests of his own. He soon begins to think that he may be happy and glorious by oppressing his fellow-citizens, and that he may raise himself to grandeur on the ruins of his country.

            In an extensive republic, the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen. Abuses have less extent, and, of course, are less protected.

            The long duration of the republic of Sparta was owing to her having continued in the same extent of territory after all her wars. The sole aim of Sparta was liberty, and the sole advantage of her liberty was glory.

            It was the spirit of the Greek republics to be as contented with their territories as with their laws. Athens was first fired with ambition and gave it to Lacedaemon. But it was an ambition rather of commanding a free people than of governing slaves, rather of directing than of breaking the union. All was lost upon the starting up of monarchy—a government whose spirit is more turned to increase of dominion.

            Except in special circumstances, it is difficult for any other than a republican government to subsist longer in a single town. A prince of so small a state would naturally try to oppress his subjects, because his power would be great, while the means of enjoying it or of causing it to be respected would be inconsiderable. The consequence is that he would trample upon his people. On the other hand, such a prince might be easily crushed by a foreign or even a domestic force; the people might at any instant unite and rise up against him. Now as soon as the sovereign of a single town is expelled, the quarrel is over. But if he has many towns, it only begins.

 

8.17. Properties of a Monarchy.

A monarchical state ought to be of moderate extent. Were it small, it would form itself into a republic. Were it very large, the nobility would be possessed of great estates, far from the eye of the prince, with a private court of their own, and secure, moreover, from sudden executions by the laws and manners of the country. Such a nobility might throw off their allegiance, having nothing to fear from too slow and too distant a punishment.

            Thus Charlemagne had scarcely founded his empire when he was obliged to divide it. Perhaps the governors of the provinces refused to obey, or perhaps, in order to keep them more under subjection, there was a necessity of parceling the empire into several kingdoms.

            After the decease of Alexander his empire was divided. How was it possible for those Greek and Macedonian chiefs, who were each of them free and independent, or commanders at least of the victorious bands dispersed throughout that vast extent of conquered land—how was it possible, I say, for them to obey?

            Attila's empire was dissolved soon after his death; such a number of kings, who were no longer under restraint, could not resume their fetters.

            The sudden establishment of unlimited power is a remedy which in those cases may prevent a dissolution. But how dreadful the remedy is, which after the enlargement of dominion opens a new scene of misery!

            The rivers quickly mingle their waters with the sea; and monarchies lose themselves in despotic power.

 

8.19. Properties of a despotic Government

A large empire supposes a despotic authority in the person who governs. It is necessary that the quickness of the prince's resolutions should supply the distance of the places they are sent to; that fear should prevent the remissness of the distant governor or magistrate; that the law should be derived from a single person, and should shift continually, according to the accidents which incessantly multiply in a state in proportion to its extent.

 

8.20. Consequence

It is, therefore, the natural property of small states to be governed as a republic, of middling ones to be subject to a monarch, and of large empires to be swayed by a despotic prince. The consequence is that, in order to preserve the principles of the established government, the state must be supported in the extent it has acquired, and that the spirit of this state will alter in proportion as it contracts or extends its limits.

 

9.1. Protection through a Confederate Republic

If a republic is small, it is destroyed by a foreign force; if it is large, it is ruined by an internal imperfection.

            To this twofold inconvenience democracies and aristocracies are equally liable, whether they be good or bad. The evil is in the very thing itself, and no form can redress it.

            It is, therefore, very probable that mankind would have been, at length, obliged to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican government, together with the external force of a monarchical government. I mean a confederate republic.

            This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body.

            It was these associations that so long contributed to the prosperity of Greece. By these the Romans attacked the whole globe, and by these alone the whole globe withstood them; for when Rome had arrived at her highest pitch of grandeur, it was the associations beyond the Danube and the Rhine—associations formed by the terror of her arms—that enabled the barbarians to resist her.

            Hence it proceeds that Holland, Germany, and the Swiss cantons are considered in Europe as perpetual republics.

            The associations of cities were formerly more necessary than in our times. A weak, defenseless town was exposed to greater danger. By conquest it was deprived not only of the executive and legislative power, as at present, but, moreover, of all human property.

            A [confederate] republic of this kind, able to withstand an external force, may support itself without any internal corruption; the form of this society prevents all manner of inconveniences.

            If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great an influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation.

            Should a popular insurrection happen in one of the confederate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

            As this government is composed of small republics, it enjoys the internal happiness of each; and with regard to its external situation, by means of the association, it possesses all the advantages of large monarchies.

 

9.2. Confederate Governments work Best with Republics

The Canaanites were destroyed by reason that they were petty monarchies that had no union or confederacy for their common defense, and, indeed, a confederacy is not agreeable to the nature of petty monarchies.

            As the confederate republic of Germany consists of free cities, and of petty states subject to different princes, experience shows us that it is much more imperfect than that of Holland and Switzerland.

            The spirit of monarchy is war and enlargement of dominion; peace and moderation are the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic.

            Thus we observe, in the Roman history, that when the Veientes had chosen a king, they were immediately abandoned by all the other petty republics of Tuscany. Greece was undone as soon as the kings of Macedon obtained a seat among the Amphictyons.

            The confederate republic of Germany, composed of princes and free towns, subsists by means of a chief, who is, in some respects, the magistrate of the union, in others the monarch.

 

POLITICAL LIBERTY

 

11.1. The General Idea of Liberty

I make a distinction between the laws that establish political liberty, as it relates to the constitution, and those by which it is established as it relates to the citizen. The former shall be the subject of this book; the latter I shall examine in the next.

 

11.2. Different Meanings of the Word Liberty

There is no word that admits of more various meaning, and has made more varied impressions on the human mind, than that of liberty. Some have taken it as a means of deposing a person on whom they had conferred a tyrannical authority; others for the power of choosing a superior whom they are obliged to obey; others for the right of bearing arms and of being thereby enabled to use violence; others, ultimately, for the privilege of being governed by a native of their own country, or by their own laws. A certain nation for a long time thought liberty consisted in the privilege of wearing a long beard. Some have connected this name to one form of government exclusive of others: those who had a republican preference applied it to this type of polity; those who liked a monarchical state gave it to monarchy. Thus they have all applied the name of liberty to the government most suitable to their own customs and inclinations. As in republics, the people have not so constant and so present a view of the causes of their misery, and as the magistrates seem to act only in conformity to the laws, hence liberty is generally said to reside in republics, and to be banished from monarchies. Thus, as in democracies the people seem to act almost as they please, this sort of government has been deemed the most free, and the power of the people has been confused with their liberty.

 

11.3-4. Liberty is Confined by the Laws

It is true that in democracies the people seem to act as they please; but political liberty does not consist in an unlimited freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.

            We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.

            Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits?

            To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A government may be so constituted so that no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.

 

11.5. Different Aims of Different Governments

All governments have the same general end, which is that of preservation, but each has another particular object. Increase of dominion was the object of Rome; war was that of Sparta; religion was that of the Jewish laws; commerce was that of Marseilles; public tranquility was that of the laws of China; navigation was that of the laws of Rhodes; natural libertywas that of the policy of the savages; in general, the pleasures of the prince was that of despotic states; the prince’s and the kingdom’s glory is that of monarchies. The independence of individuals is the end aimed at by the laws of Poland, and from this results the oppression of the whole.

            There is also one nation in the world [i.e., England] that has political liberty for the direct end of its constitution. We shall presently examine the principles on which this liberty is founded; if they are sound, liberty will appear in its highest perfection.

            To discover political liberty in a constitution, no great labor is required. If we are capable of seeing it where it exists, it is soon found, and we need not go far in search of it.

 

11.6. Separation of Powers to Preserve Liberty

In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law [i.e., the judicial].

            By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abolishes those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.

            The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is necessary that the government be so constituted so that one man need not be afraid of another.

            When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. For, worries may arise if the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

            Again, there is no liberty, if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

            There would be an end of everything if the same man or the same body, whether of the nobles or of the people, were to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. . . .

 

SLAVERY

 

15.1. Wrongfulness of Slavery

Slavery, properly so called, is the establishment of a right which gives to one man such a power over another as makes him absolute master of his life and fortune. The state of slavery is in its own nature bad. It is neither useful to the master nor to the slave. It is not to the slave, because he can do nothing through a motive of virtue. It is not to the master because, by having an unlimited authority over his slaves, he insensibly accustoms himself to the lack of all moral virtues, and from there becomes fierce, hasty, severe, angry, indulgent, and cruel.

            In despotic countries, where they are already in a state of political servitude, civil slavery is more tolerable than in other governments. Everyone ought to be satisfied in those countries with necessities and life. Hence the condition of a slave is hardly more burdensome than that of a subject.

            But in a monarchical government, where it is of the utmost importance that human nature should not be debased or dispirited, there ought to be no slavery. Slavery is contrary to the spirit of the constitution in democracies, where they are all upon equality. So too in aristocracies, where the laws ought to use their utmost efforts to procure as great an equality as the nature of the government will permit. It only contributes to give a power and luxury to the citizens which they ought not to have.

 

15.2. Three Source of Slavery among the Roman Civilians

One would never have imagined that slavery should owe its birth to pity, and that this should have been brought about in three different ways.

            [First,] the law of nations to prevent prisoners from being put to death has allowed them to be made slaves. [Second,] the civil law of the Romans empowered debtors, who were subject to be ill-used by their creditors, to sell themselves. And [third] the law of nature requires that children whom a father in a state of servitude is no longer able to maintain should be reduced to the same state as the father.

            These reasons of the civilians are all false. [Regarding the first,] it is false that killing in war is lawful, unless in a case of absolute necessity. But when a man has made another his slave, he cannot be said to have been under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any further harm by securing their persons. All nations concur in detesting the murdering of prisoners in cold blood.

            [Regarding the second,] neither is it true that a freeman can sell himself. Sale implies a price. Now when a person sells himself, his whole substance immediately devolves to his master; the master, therefore, in that case, gives nothing, and the slave receives nothing. You will say he has an exclusive personal property. But this exclusive personal property goes along with his person. If it is not lawful for a man to kill himself because he robs his country of his person, for the same reason he is not allowed to barter his freedom. The freedom of every citizen constitutes a part of the public liberty, and in a democratic state is even a part of the sovereignty. To sell one’s freedom is so repugnant to all reason as can scarcely be supposed in any man. If liberty may be rated with respect to the buyer, it is beyond all price to the seller. The civil law, which authorizes a division of goods among men, cannot be thought to rank among such goods a part of the men who were to make this division. The same law annuls all unjust contracts; surely then it affords redress in a contract where the grievance is most enormous.

            The third way is birth, which falls with the two former; for if a man could not sell himself, much less could he sell an unborn infant. If a prisoner of war is not to be reduced to slavery, much less are his children.

            The lawfulness of putting a malefactor to death arises from this circumstance: the law by which he is punished was made for his security. A murderer, for instance, has enjoyed the benefit of the very law which condemns him; it has been a continual protection to him; he cannot, therefore, object to it. But it is not so with the slave. The law of slavery can never be beneficial to him; it is in all cases against him, without ever being for his advantage; and therefore this law is contrary to the fundamental principle of all societies.

            If it is pretended that slavery has been beneficial to him, as his master has provided for his subsistence, then on this account slavery should be limited to those who are incapable of earning their livelihood. But who will take up with such slaves? As to infants, nature, who has supplied their mothers with milk, had provided for their sustenance; and the remainder of their childhood approaches so near the age in which they are most capable of being of service that he who supports them cannot be said to give them an equivalent which can entitle him to be their master.

            Nor is slavery less opposed to the civil law than to that of nature. What civil law can restrain a slave from running away, since he is not a member of society, and consequently has no interest in any civil institutions? He can be retained only by a family law, that is, by the master’s authority.

 

15.3. Origin of Slavery from Cultural differences

I would as soon say that the right of slavery proceeds from the contempt of one nation for another, founded on a difference in customs.

            Lopez de Gama relates that the Spaniards found near St. Martha several basketsful of crabs, snails, grasshoppers, and locusts, which proved to be the ordinary provision of the natives. The conquerors [who found these foods disgusting] turned this into a heavy charge against the conquered. The author owns that this, with their smoking and trimming their beards in a different manner, gave rise to the law by which the Americans became slaves to the Spaniards.

            Knowledge humanizes mankind, and reason inclines to mildness; but prejudices eradicate every tender disposition.

 

15.4. Origin of Slavery from Religious Conversion

I would as soon say that religion gives its professors a right to enslave those who dissent from it, in order to render its propagation easier.

            This was the notion that encouraged the ravagers of America in their iniquity. Under the influence of this idea they founded their right of enslaving so many nations; for these robbers, who would absolutely be both robbers and Christians, were superlatively devout.

            Louis XII was extremely uneasy about a law by which all the negroes of his colonies were to be made slaves. But, when it was strongly urged to him that this was the easiest means for their conversion, he agreed without further scruple.

 

15.5. Absurd Arguments for the Slavery of the Negroes

Were I to justify our right to make slaves of the negroes, these would be my arguments:

            The Europeans, having exterminated the Americans, were obliged to make slaves of the Africans, for clearing such vast tracts of land.

            Sugar would be too costly if the plants which produce it were cultivated by any other than slaves.

            These creatures are all over black, and with such a flat nose that they can scarcely be pitied.

            It is hardly to be believed that God, who is a wise Being, should place a soul, especially a good soul, in such a black ugly body.

            It is so natural to look upon color as the criterion of human nature, that the Asians, among whom eunuchs are employed, always deprive the blacks of their resemblance to us by a more contemptuous distinction.

            The color of the skin may be determined by that of the hair, which, among the Egyptians, the best philosophers in the world, was of such importance that they put to death all the red-haired men who fell into their hands.

            The negroes prefer a glass necklace to that gold which polite nations so highly value. Can there be a greater proof of their wanting common sense?

            It is impossible for us to suppose these creatures to be men, because, allowing them to be men, a suspicion would follow that we ourselves are not Christians.

            Weak minds exaggerate too much the wrong done to the Africans. For were the case as they state it, would the European powers, who make so many needless conventions among themselves, have failed to enter into a general one, in behalf of humanity and compassion?

 

15.6. Other Absurd arguments for Slavery

It is time to inquire into the true origin of the right of slavery. It ought to be founded on the nature of things; let us see if there are any cases where it can be derived from this.

            In all despotic governments people make no difficulty in selling themselves; the political slavery in some measure annihilates the civil liberty.

            According to Mr. Perry, the Muscovites sell themselves very readily: their reason for it is evident; their liberty is not worth keeping.

            At [the German town of] Achim everyone is for selling himself. Some of the chief lords have not less than a thousand slaves, all principal merchants, who have a great number of slaves themselves, and these also are not without their slaves. Their masters are their heirs, and put them into trade. In those states, the freemen being overpowered by the government, have no better resource than that of making themselves slaves to the tyrants in office.

            This is the true and rational origin of that mild law of slavery which obtains in some countries. Mild it ought to be, since it is founded on the free choice a man makes of a master for his own benefit, which forms a mutual convention between the two parties.

 

15.7. Heat Fatigue an Absurd Argument for Slavery

There is another origin of the right of slavery, and even of the most cruel slavery which is to be seen among men.

            There are countries where the excess of heat weakens the body, and renders men so slothful and dispirited that nothing but the fear of chastisement can oblige them to perform any laborious duty. Slavery is there more reconcilable to reason; and the master being as lazy with respect to his sovereign as his slave is with regard to him, this adds a political to a civil slavery.

            Aristotle tries to prove that there are natural slaves; but what he says is far from proving it. If there are any such, I believe they are those of whom I have been speaking.

            But as all men are born equal, slavery must be accounted unnatural, though in some countries it is founded on natural reason. A wide difference ought to be made between such countries, and those in which even natural reason rejects it, as in Europe, where it has been so happily abolished.

            Plutarch, in the Life of Numa, says that in Saturn’s time there was neither slave nor master. Christianity has restored that age in our climates.

 

15.8. Tasks of Slaves performed by Freemen

Natural slavery, then, is to be limited to some particular parts of the world. In all other countries, even the most servile drudgeries may be performed by freemen. Experience verifies my assertion. Before Christianity had abolished civil slavery in Europe, working in the mines was judged too toilsome for any but slaves or malefactors: at present there are men employed in them who are known to live comfortably. The magistrates have, by some small privileges, encouraged this profession: to an increase of labor they have joined an increase of gain; and have gone so far as to make those people better pleased with their condition than with any other which they could have embraced.

            No labor is so heavy but it may be brought to a level with the workman’s strength, when regulated by equity, and not by avarice. The violent fatigues which slaves are made to undergo in other parts may be supplied by a skilful use of ingenious machines. The Turkish mines in the Bannat of Temeswaer, though richer than those of Hungary, did not yield so much, because the working of them depended entirely on the strength of their slaves.

            I know not whether this article is dictated by my understanding or by my heart. Possibly there is not that climate upon earth where the most laborious services might not with proper encouragement be performed by freemen. Bad laws having made lazy men, they have been reduced to slavery because of their laziness.

 

Source: Charles de Secondat, Baron de Montesquieu, Spirit of the Laws (1748), tr. Thomas Nugent.

 

Questions for Review

1. In the section on “advantages of small republics”, what are the optimal sizes of republics, monarchies, and despotic governments, and why?

2. In the section on “protection through a confederate republic,” what are the two disadvantages of republics, and how does a confederacy solve the problem?

3. In the section on “liberty is confined by the laws,” why isn’t political liberty the same thing as unlimited freedom?

4. In the section on “Separation of powers to preserve liberty,” what are the three branches of government and their functions?

5. In the section on “Three sources of slavery among Roman Citizens,” what are the three sources and what are Montesquieu’s criticisms of each?

 

Questions for Analysis

 

1. Explain Montesquieu’s small republic thesis as presented in the section on “advantages of small republics” and discuss whether you agree with it.

2. Explain Montesquieu’s view of protection through confederate governments and discuss whether you agree.

3. Criticize Montesquieu’s arguments regarding the balanced separation of powers and three branches of government.

4. Are any of Montesquieu’s arguments against slavery weak? Pick one and critique it.

5. Montesquieu was a witty writer as exemplified in his satirical critiques of absurd justifications of slavery. That is, he ironically presents them as good arguments, letting their self-evident absurdity undermine themselves. Describe some of the more absurd justifications, and explain why they are absurd.

 

 

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#17

 

POLITICAL INEQUALITY AND THE SOCIAL CONTRACT

 

Jean-Jacques Rousseau

 

French philosopher Jean-Jacques Rousseau (1712—1778) was a leading figure in the European enlightenment. The controversial nature of his writings forced him to flee France for refuge in Switzerland. His political philosophy had a great impact on the French Revolution. The selections below are from two of his most influential works. In The Discourse on the Origin of Inequality (1754) he theorizes about how political inequality emerged as people moved from primitive tribal environments to more complex societies. In the state of nature, people are equal and, being concerned only with their actual necessities, they operated under the principle “Do good to yourself with as little evil as possible to others.” This changed when people desired to possess more than they actually needed, which resulted in the creation of private property. Equality then disappeared, and there arose theft, slavery and other social conflicts. As nations developed, they similarly fell into conflict by pursuing the resources of their neighbors. In The Social Contract (1762), Rousseau argues that there were too many obstacles for freedom in the state of nature, and the social contract created a new social force to overcome those obstacles. Through the social contract, people gave up their natural liberty but gained civil liberty and ownership of possessions. For the social contract to work, everyone must obey the general will, by force if necessary. The general will is the Sovereign of society, and is concerned with common interests. This differs from the “will of all,” which includes private interests. Often, the private interests of the “will of all” cancel each other out, and may reflect the general will. But a dominant faction of private interests destroys the general will. Through the social contract, citizens transfer their rights to life over to the general will, and thus rebels, traitors and the uncompliant may be executed for the good of the state. Traditional religions are disruptive to the general will since they are partisan and disunify society. Accordingly, all religions must be required to tolerate each other. A civil religion, then, must be developed which advocates belief in God, divine punishment in the afterlife, the sanctity of the social contract, and toleration towards all religions.

 

THE ORIGIN OF POLITICAL INEQUALITY (Discourse on Inequality)

 

Physical vs. Political Inequality (Preface, Introduction)

Of all human sciences the most useful and most imperfect appears to me to be that of mankind: and I will venture to say, the single inscription on the Temple of Delphi [i.e., “Know Thyself”] contained a precept more difficult and more important than is to be found in all the huge volumes that moralists have ever written. I consider the subject of the following discourse as one of the most interesting questions philosophy can propose, and unhappily for us, one of, the most thorny that philosophers can have to solve. For how will we know the source of inequality between men, if we do not begin by knowing mankind? . . .

            I conceive that there are two kinds of inequality among the human species; one, which I call natural or physical, because it is established by nature, and consists in a difference of age, health, bodily strength, and the qualities of the mind or of the soul. The other, which may be called moral or political inequality, because it depends on a kind of convention, and is established, or at least authorized by the consent of men. This latter consists of the different privileges, which some men enjoy to the prejudice of others; such as that of being more rich, more honored, more powerful or even in a position to exact obedience. . . .

            The subject of the present discourse, therefore, is more precisely this. To mark, in the progress of things, the moment at which right took the place of violence and nature became subject to law, and to explain by what sequence of miracles the strong came to submit to serve the weak, and the people to purchase imaginary peacefulness at the expense of real happiness. . . .

            Let us begin then by laying facts aside, as they do not affect the question. The investigations we may enter into, in treating this subject, must not be considered as historical truths, but only as mere conditional and hypothetical reasonings, rather calculated to explain the nature of things, than to ascertain their actual origin; just like the hypotheses which our physicists daily form respecting the formation of the world

 

Life in the State of Nature (Part 1)

Let us not conclude, with Hobbes, that because man has no idea of goodness, he must be naturally wicked; that he is vicious because he does not know virtue; that he always refuses to do his fellow-creatures services which he does not think they have a right to demand; or that by virtue of the right he truly claims to everything he needs, he foolishly imagines himself the sole proprietor of the whole universe.

            It is then certain that compassion is a natural feeling which, by moderating the violence of love of self in each individual, contributes to the preservation of the whole species. It is this compassion that hurries us without reflection to the relief of those who are in distress: it is this which in a state of nature supplies the place of laws, morals and virtues, with the advantage that none are tempted to disobey its gentle voice: it is this which will always prevent a sturdy savage from robbing a weak child or a feeble old man of the sustenance they may have with pain and difficulty acquired, if he sees a possibility of providing for himself by other means: it is this which, instead of inculcating that sublime maxim of rational justice, Do to others as you would have them do unto you, inspires all men with that other maxim of natural goodness, much less perfect indeed, but perhaps more useful; Do good to yourself with as little evil as possible to others. In a word, it is rather in this natural feeling than in any subtle arguments that we must look for the cause of that repugnance, which every man would experience in doing evil, even independently of the maxims of education. Although it might belong to Socrates and other minds of the like craft to acquire virtue by reason, the human race would long since have ceased to be, had its preservation depended only on the reasonings of the individuals composing it.

            With passions so little active, and so good a curb, men, being rather wild than wicked, and more intent to guard themselves against the mischief that might be done them, than to do mischief to others, were by no means subject to very perilous dissensions. They maintained no kind of interaction with one another, and were consequently strangers to vanity, deference, esteem and contempt; they had not the least idea of meum and tuum [mine and thine], and no true conception of justice; they looked upon every violence to which they were subjected, rather as an injury that might easily be repaired than as a crime that ought to be punished; and they never thought of taking revenge, unless perhaps mechanically and on the spot, as a dog will sometimes bite the stone which is thrown at him. Their quarrels therefore would seldom have very bloody consequences; for the subject of them would be merely the question of subsistence. . . .

            Let us conclude then that man in a state of nature, wandering up and down the forests, without industry, without speech, and without home, an equal stranger to war and to all ties, neither standing in need of his fellow-creatures nor having any desire to hurt them, and perhaps even not distinguishing them one from another; let us conclude that, being self-sufficient and subject to so few passions, he could have no feelings or knowledge but such as suited his situation; that he felt only his actual necessities, and disregarded everything he did not think himself immediately concerned to notice, and that his understanding made no greater progress than his vanity. If by accident he made any discovery, he was the less able to communicate it to others, as he did not know even his own children. Every art would necessarily perish with its inventor, where there was no kind of education among men, and generations succeeded generations without the least advance; when, all setting out from the same point, centuries must have elapsed in the barbarism of the first ages; when the race was already old, and man remained a child.

            If I have expatiated at such length on this supposed primitive state, it is because I had so many ancient errors and ingrained prejudices to eradicate, and therefore thought it required of me to dig down to their very root, and show, by means of a true picture of the state of nature, how far even the natural inequalities of mankind are from having that reality and influence which modern writers suppose.

 

Creation of Property and its Negative Consequences (Part 2)

The first man who, having enclosed a piece of ground, thought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows, "Beware of listening to this impostor; you are undone if you now forget that the fruits of the earth belong to us all, and the earth itself to nobody." But there is a great probability that things had then already come to such a pitch, that they could no longer continue as they were; for the idea of property depends on many prior ideas, which could only be acquired successively, and cannot have been formed all at once in the human mind. . . .

            But it must be remarked that the society thus formed, and the relations thus established among men, required of them qualities different from those which they possessed from their primitive constitution. Morality began to appear in human actions, and everyone, before the institution of law, was the only judge and avenger of the injuries done him. Thus, the goodness which was suitable in the pure state of nature was no longer proper in the new-born state of society. Punishments had to be made more severe, as opportunities of offending became more frequent, and the dread of vengeance had to take the place of the rigor of the law. Thus, though men had become less patient, and their natural compassion had already suffered some diminution, this period of expansion of the human faculties, keeping a just mean between the indolence of the primitive state and the ill-tempered activity of our egoism, must have been the happiest and most stable of epochs. The more we reflect on it, the more we will find that this state was the least subject to revolutions, and altogether the very best man could experience; so that he can have departed from it only through some fatal accident, which, for the public good, should never have happened. The example of savages, most of whom have been found in this state, seems to prove that men were meant to remain in it, that it is the real youth of the world, and that all subsequent advances have been apparently so many steps towards the perfection of the individual, but in reality towards the decrepitude of the species.

            So long as men remained content with their rustic huts, so long as they were satisfied with clothes made of the skins of animals and sewn together with thorns and fish bones, adorned themselves only with feathers and shells, and continued to paint their bodies different colors, to improve and beautify their bows and arrows and to make with sharp-edged stones fishing boats or clumsy musical instruments; in a word, so long as they undertook only what a single person could accomplish, and confined themselves to such arts as did not require the joint labor of several hands, they lived free, healthy, honest and happy lives, so long as their nature allowed, and as they continued to enjoy the pleasures of mutual and independent interaction. But from the moment one man began to stand in need of the help of another; from the moment it appeared advantageous to any one man to have enough provisions for two, equality disappeared, property was introduced, work became indispensable, and vast forests became smiling fields, which man had to water with the sweat of his brow, and where slavery and misery were soon seen to germinate and grow up with the crops. . . .

            Thus, as the most powerful or the most miserable considered their might or misery as a kind of right to the possessions of others, equivalent, in their opinion, to that of property, the destruction of equality was attended by the most terrible disorders. Confiscation by the rich, robbery by the poor, and the unrestrained passions of both, suppressed the cries of natural compassion and the still feeble voice of justice, and filled men with avarice, ambition and vice. Between the title of the strongest and that of the first occupier, there arose perpetual conflicts, which never ended but in battles and bloodshed. The new-born state of society thus gave rise to a horrible state of war; men thus harassed and depraved were no longer capable of retracing their steps or renouncing the fatal acquisitions they had made, but, laboring by the abuse of the faculties which do them honor, merely to their own confusion, brought themselves to the brink of ruin. . . .

            Such was, or may well have been, the origin of society and law, which bound new fetters on the poor, and gave new powers to the rich; which irretrievably destroyed natural liberty, eternally fixed the law of property and inequality, converted clever usurpation into unalterable right, and, for the advantage of a few ambitious individuals, subjected all mankind to perpetual labour, slavery and wretchedness. . . . Societies soon multiplied and spread over the face of the earth, till hardly a corner of the world was left in which a man could escape the yoke, and withdraw his head from beneath the sword which he saw perpetually hanging over him by a thread. . . . But bodies politic, remaining thus in a state of nature among themselves, presently experienced the inconveniences which had forced individuals to forsake it; for this state became still more fatal to these great bodies than it had been to the individuals of whom they were composed. Hence arose national wars, battles, murders, and reprisals, which shock nature and outrage reason. . . .

 

Conclusion

I have attempted to trace the origin and progress of inequality, and the institution and abuse of political societies, as far as these are capable of being deduced from the nature of man merely by the light of reason, and independently of those sacred dogmas which give the sanction of divine right to sovereign authority. It follows from this survey that, as there is hardly any inequality in the state of nature, all the inequality which now prevails owes its strength and growth to the development of our faculties and the advance of the human mind, and becomes at last permanent and legitimate by the establishment of property and laws. Secondly, it follows that moral inequality authorized by positive [human-created] right alone, clashes with natural right, whenever it is not proportionate to physical inequality; a distinction which sufficiently determines what we ought to think of that type of inequality which prevails in all civilized countries; since it is plainly contrary to the law of nature, however defined, that children should command old men, fools wise men, and that the privileged few should gorge themselves with superfluities, while the starving multitude are in want of the bare necessities of life.

 

THE SOCIAL CONTRACT (from The Social Contract)

 

Subject of the First Book (1.1)

Man is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they. How did this change come about? I do not know. What can make it legitimate? That question I think I can answer.

            If I took into account only force, and the effects derived from it, I should say: "As long as a people is compelled to obey, and obeys, it does well; as soon as it can shake off the yoke, and shakes it off, it does still better; for, regaining its liberty by the same right as took it away, either it is justified in resuming it, or there was no justification for those who took it away." But the social order is a sacred right which is the basis of all other rights. Nevertheless, this right does not come from nature, and must therefore be founded on conventions. Before coming to that, I have to prove what I have just asserted.

 

The First Societies: Natural liberty, Force Creates no Right, Slavery Illegitimate (1.2-4)

The most ancient of all societies, and the only one that is natural, is the family: and even so the children remain attached to the father only so long as they need him for their preservation. As soon as this need ceases, the natural bond is dissolved. The children, released from the obedience they owed to the father, and the father, released from the care he owed his children, return equally to independence. If they remain united, they continue so no longer naturally, but voluntarily; and the family itself is then maintained only by convention.

            This common liberty results from the nature of man. His first law is to provide for his own preservation, his first cares are those which he owes to himself; and, as soon as he reaches years of discretion, he is the sole judge of the proper means of preserving himself, and consequently becomes his own master. . . .

            The strongest is never strong enough to be always the master, unless he transforms strength into right, and obedience into duty. Hence the right of the strongest, which, though to all seeming meant ironically, is really laid down as a fundamental principle. But are we never to have an explanation of this phrase? Force is a physical power, and I fail to see what moral effect it can have. To yield to force is an act of necessity, not of will—at the most, an act of prudence. In what sense can it be a duty? . . . Let us then admit that force does not create right, and that we are obliged to obey only legitimate powers. In that case, my original question recurs.

            Since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men. . . .

            So, from whatever aspect we regard the question, the right of slavery is null and void, not only as being illegitimate, but also because it is absurd and meaningless. The words slave and right contradict each other, and are mutually exclusive. It will always be equally foolish for a man to say to a man or to a people: "I make with you a convention wholly at your expense and wholly to my advantage; I will keep it as long as I like, and you will keep it as long as I like." . . .

 

The Social Contract: A Combined Force to Overcome the Obstacles in the State of Nature (1.6)

I suppose men to have reached the point at which the obstacles in the way of their preservation in the state of nature show their power of resistance to be greater than the resources at the disposal of each individual for his maintenance in that state. That primitive condition can then subsist no longer; and the human race would perish unless it changed its manner of existence.

            But, as men cannot create new forces, but only unite and direct existing ones, they have no other means of preserving themselves than the formation, by aggregation, of a sum of forces great enough to overcome the resistance. These they have to bring into play by means of a single motive power, and cause to act in concert.

            This sum of forces can arise only where several persons come together: but, as the force and liberty of each man are the chief instruments of his self-preservation, how can he pledge them without harming his own interests, and neglecting the care he owes to himself? This difficulty, in its bearing on my present subject, may be stated in the following terms—

            "The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before." This is the fundamental problem of which the Social Contract provides the solution.

            The clauses of this contract are so determined by the nature of the act that the slightest modification would make them vain and ineffective. Thus, although they have perhaps never been formally set forth, they are everywhere the same and everywhere tacitly admitted and recognized, until, on the violation of the social contract, each regains his original rights and resumes his natural liberty. . . .

 

Individuals Forced to Follow the General Will (1.7)

This formula shows us that the act of association comprises a mutual undertaking between the public and the individuals, and that each individual, in making a contract, as we may say, with himself, is bound in a double capacity; as a member of the Sovereign he is bound to the individuals, and as a member of the State to the Sovereign. But the maxim of civil right, that no one is bound by undertakings made to himself, does not apply in this case; for there is a great difference between incurring an obligation to yourself and incurring one to a whole of which you form a part. . . .

            In fact, each individual, as a man, may have a particular will contrary or dissimilar to the general will which he has as a citizen. His particular interest may speak to him quite differently from the common interest: his absolute and naturally independent existence may make him look upon what he owes to the common cause as a gratuitous contribution, the loss of which will do less harm to others than the payment of it is burdensome to himself; and, regarding the moral person which constitutes the State as a persona ficta [artificial person], because not a man, he may wish to enjoy the rights of citizenship without being ready to fulfil the duties of a subject. The continuance of such an injustice could not but prove the undoing of the body politic.

            In order then that the social contract may not be an empty formula, it tacitly includes the undertaking, which alone can give force to the rest, that whoever refuses to obey the general will must be compelled to do so by the whole body. This means nothing less than that he will be forced to be free; for this is the condition which, by giving each citizen to his country, secures him against all personal dependence. In this lies the key to the working of the political machine; this alone legitimizes civil undertakings, which, without it, would be absurd, tyrannical, and liable to the most frightful abuses.

 

Benefits of the Civil State: Civil Liberty and Property Ownership (1.8-9)

The passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct, and giving his actions the morality they had formerly lacked. Then only, when the voice of duty takes the place of physical impulses and right of appetite, does man, who so far had considered only himself, find that he is forced to act on different principles, and to consult his reason before listening to his inclinations. In this state, he deprives himself of some advantages which he got from nature, but he gains in return others very great. His faculties are so stimulated and developed, his ideas so extended, his feelings so ennobled, and his whole soul so uplifted, that, if the abuses of this new condition did not often degrade him below that which he left, he would be bound to bless continually the happy moment which took him from it forever, and, instead of a stupid and unimaginative animal, made him an intelligent being and a man.

            Let us draw up the whole account in terms easily commensurable. What man loses by the social contract in his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses. If we are to avoid mistake in weighing one against the other, we must clearly distinguish natural liberty, which is bounded only by the strength of the individual, from civil liberty, which is limited by the general will; and possession, which is merely the effect of force or the right of the first occupier, from property, which can be founded only on a positive title. . . .

            In general, to establish the right of the first occupier over a plot of ground, the following conditions are necessary: first, the land must not yet be inhabited; secondly, a man must occupy only the amount he needs for his subsistence; and, in the third place, possession must be taken, not by an empty ceremony, but by labor and cultivation, the only sign of proprietorship that should be respected by others, in default of a legal title. . . .

 

General Will (Sovereignty) is Inalienable, Indivisible, (2.1-2)

The first and most important deduction from the principles we have so far laid down is that the general will alone can direct the State according to the object for which it was instituted, i.e. the common good: for if the clashing of particular interests made the establishment of societies necessary, the agreement of these very interests made it possible. The common element in these different interests is what forms the social tie; and, were there no point of agreement between them all, no society could exist. It is solely on the basis of this common interest that every society should be governed.

            I hold then that Sovereignty, being nothing less than the exercise of the general will, can never be alienated, and that the Sovereign, who is no less than a collective being, cannot be represented except by himself: the power indeed may be transmitted, but not the will. . . .

            Sovereignty, for the same reason as makes it inalienable, is indivisible; for will either is, or is not, general; it is the will either of the body of the people, or only of a part of it. In the first case, the will, when declared, is an act of Sovereignty and constitutes law: in the second, it is merely a particular will, or act of magistracy—at the most a decree. . . .

 

The General Will vs. the Will of All and Factions (2.3-4)

It follows from what has gone before that the general will is always right and tends to the public advantage; but it does not follow that the deliberations of the people are always equally correct. Our will is always for our own good, but we do not always see what that is; the people is never corrupted, but it is often deceived, and on such occasions only does it seem to will what is bad.

            There is often a great deal of difference between the will of all and the general will; the latter considers only the common interest, while the former takes private interest into account, and is no more than a sum of particular wills: but take away from these same wills the pluses and minuses that cancel one another, and the general will remains as the sum of the differences.

            If, when the people, being furnished with adequate information, held its deliberations, the citizens had no communication one with another, the grand total of the small differences would always give the general will, and the decision would always be good. But when factions arise, and partial associations are formed at the expense of the great association, the will of each of these associations becomes general in relation to its members, while it remains particular in relation to the State: it may then be said that there are no longer as many votes as there are men, but only as many as there are associations. The differences become less numerous and give a less general result. Lastly, when one of these associations is so great as to prevail over all the rest, the result is no longer a sum of small differences, but a single difference; in this case there is no longer a general will, and the opinion which prevails is purely particular.

            It is therefore essential, if the general will is to be able to express itself, that there should be no partial society within the State, and that each citizen should think only his own thoughts: which was indeed the sublime and unique system established by the great Lycurgus. But if there are partial societies, it is best to have as many as possible and to prevent them from being unequal, as was done by Solon, Numa and Servius. These precautions are the only ones that can guarantee that the general will shall be always enlightened, and that the people will in no way deceive itself. . . .

            If the State is a moral person whose life is in the union of its members, and if the most important of its cares is the care for its own preservation, it must have a universal and compelling force, in order to move and dispose each part as may be most advantageous to the whole. As nature gives each man absolute power over all his members, the social contract gives the body politic absolute power over all its members also; and it is this power which, under the direction of the general will, bears, as I have said, the name of Sovereignty. . . .

 

Death Penalty for Rebels and Traitors (2.5)

The question is often asked how individuals, having no right to dispose of their own lives, can transfer to the Sovereign a right which they do not possess. The difficulty of answering this question seems to me to lie in its being wrongly stated. Every man has a right to risk his own life in order to preserve it. Has it ever, been said that a man who throws himself out of the window to escape from a fire is guilty of suicide? Has such a crime ever been laid to the charge of him who perishes in a storm because, when he went on board, he knew of the danger?

            The social treaty has for its end the preservation of the contracting parties. He who wills the end wills the means also, and the means must involve some risks, and even some losses. He who wishes to preserve his life at others expense should also, when it is necessary, be ready to give it up for their sake. Furthermore, the citizen is no longer the judge of the dangers to which the law desires him to expose himself; and when the prince says to him: "It is expedient for the State that you should die," he ought to die, because it is only on that condition that he has been living in security up to the present, and because his life is no longer a mere bounty of nature, but a gift made conditionally by the State.

            The death-penalty inflicted upon criminals may be looked on in much the same light: it is in order that we may not fall victims to an assassin that we consent to die if we ourselves turn assassins. In this treaty, so far from disposing of our own lives, we think only of securing them, and it is not to be assumed that any of the parties then expects to get hanged.

            Again, every malefactor, by attacking social rights, becomes on forfeit a rebel and a traitor to his country; by violating its laws he ceases to be a member of it; he even makes war upon it. In such a case the preservation of the State is inconsistent with his own, and one or the other must perish; in putting the guilty to death, we slay not so much the citizen as an enemy. The trial and the judgment are the proofs that he has broken the social treaty, and is in consequence no longer a member of the State. Since, then, he has recognized himself to be such by living there, he must be removed by exile as a violator of the contract, or by death as a public enemy; for such an enemy is not a moral person, but merely a man; and in such a case the right of war is to kill the vanquished. . . .

 

Civil Religion (4.8)

At first men had no kings except the gods, and no government except theocracy. They reasoned like Caligula, and, at that period, reasoned correctly. It takes a long time for feeling to change so that men can make up their minds to take their equals as masters, in the hope that they will profit by doing so. . . .

            Religion, considered in relation to society, which is either general or particular, may also be divided into two kinds: the religion of man, and that of the citizen. The first, which has neither temples, nor altars, nor rites, and is confined to the purely internal cult of the supreme God and the eternal obligations of morality, is the religion of the Gospel pure and simple, the true theism, what may be called natural divine right or law. The other, which is codified in a single country, gives it its gods, its own tutelary patrons; it has its dogmas, its rites, and its external cult prescribed by law; outside the single nation that follows it, all the world is in its sight infidel, foreign and barbarous; the duties and rights of man extend for it only as far as its own altars. Of this kind were all the religions of early peoples, which we may define as civil or positive divine right or law.

            There is a third sort of religion of a more singular kind, which gives men two codes of legislation, two rulers, and two countries, renders them subject to contradictory duties, and makes it impossible for them to be faithful both to religion and to citizenship. Such are the religions of the Lamas and of the Japanese, and such is Roman Christianity, which may be called the religion of the priest. It leads to a sort of mixed and anti-social code which has no name.

            In their political aspect, all these three kinds of religion have their defects. The third is so clearly bad, that it is a waste of time to stop to prove it such. All that destroys social unity is worthless; all institutions that set man in contradiction to himself are worthless. . . .

            There remains therefore the religion of man or Christianity—not the Christianity of to-day, but that of the Gospel, which is entirely different By means of this holy, sublime, and real religion all men, being children of one God, recognize one another as brothers, and the society that unites them is not dissolved even at death.

            But this religion, having no particular relation to the body politic, leaves the laws in possession of the force they have in themselves without making any addition to it; and thus one of the great bonds that unite society considered in severalty fails to operate. Nay, more, so far from binding the hearts of the citizens to the State, it has the effect of taking them away from all earthly things. I know of nothing more contrary to the social spirit. . . .

            Christianity as a religion is entirely spiritual, occupied solely with heavenly things; the country of the Christian is not of this world. He does his duty, indeed, but does it with profound indifference to the good or ill success of his cares. Provided he has nothing to reproach himself with, it matters little to him whether things go well or ill here on earth. If the State is prosperous, he hardly dares to share in the public happiness, for fear he may grow proud of his country's glory; if the State is languishing, he blesses the hand of God that is hard upon His people. . . .

            But, setting aside political considerations, let us come back to what is right, and settle our principles on this important point. The right which the social contract gives the Sovereign over the subjects does not, we have seen, exceed the limits of public expediency. The subjects then owe the Sovereign an account of their opinions only to such an extent as they matter to the community. Now, it matters very much to the community that each citizen should have a religion. That will make him love his duty; but the dogmas of that religion concern the State and its members only so far as they have reference to morality and to the duties which he who professes them is bound to do to others. Each man may have, over and above, what opinions he pleases, without it being the Sovereign's business to take cognizance of them; for, as the Sovereign has no authority in the other world, whatever the lot of its subjects may be in the life to come, that is not its business, provided they are good citizens in this life.

            There is therefore a purely civil profession of faith of which the Sovereign should fix the articles, not exactly as religious dogmas, but as social sentiments without which a man cannot be a good citizen or a faithful subject. While it can compel no one to believe them, it can banish from the State whoever does not believe them—it can banish him, not for impiety, but as an anti-social being, incapable of truly loving the laws and justice, and of sacrificing, at need, his life to his duty. If anyone, after publicly recognizing these dogmas, behaves as if he does not believe them, let him be punished by death: he has committed the worst of all crimes, that of lying before the law.

            The dogmas of civil religion ought to be few, simple, and exactly worded, without explanation or commentary. The existence of a mighty, intelligent and beneficent Divinity, possessed of foresight and providence, the life to come, the happiness of the just, the punishment of the wicked, the sanctity of the social contract and the laws: these are its positive dogmas. Its negative dogmas I confine to one, intolerance, which is a part of the cults we have rejected.

            Those who distinguish civil from theological intolerance are, to my mind, mistaken. The two forms are inseparable. It is impossible to live at peace with those we regard as damned; to love them would be to hate God who punishes them: we positively must either reclaim or torment them. Wherever theological intolerance is admitted, it must inevitably have some civil effect; and as soon as it has such an effect, the Sovereign is no longer Sovereign even in the temporal sphere: thenceforth priests are the real masters, and kings only their ministers.

            Now that there is and can be no longer an exclusive national religion, tolerance should be given to all religions that tolerate others, so long as their dogmas contain nothing contrary to the duties of citizenship. But whoever dares to say: Outside the Church is no salvation, ought to be driven from the State, unless the State is the Church, and the prince the pontiff. Such a dogma is good only in a theocratic government; in any other, it is fatal. The reason for which Henry IV is said to have embraced the Roman religion ought to make every honest man leave it, and still more any prince who knows how to reason.

 

Source: Jean-Jacques Rousseau, Discourse on Inequality (1755) The Social Contract (1762), tr. George Cole.

 

Questions for Review

1. According to Rousseau’s Discourse, what was life like in the state of nature?

2. According to Rousseau’s Discourse, what were some of the negative consequences of the creation of private Property?

3. According to Rousseau’s Social Contract, what were the first societies like?

4. According to Rousseau’s Social Contract, explain the difference between the “general will” and the “will of all”.

5. According to Rousseau’s Social Contract, what are the three types of religion and the dogmas of civil religion?

 

Questions for Analysis

1. In a letter to Rousseau, Voltaire wrote the following concerning the Discourse on Inequality: “I cannot embark to go and live with the savages of Canada, in the first place because the illnesses with which I am afflicted require the attention of a European physician” (August 30, 1755). Voltaire is making a joke, but there is an underlying critique. What is Voltaire’s point, and how might Rousseau respond?

2. Rousseau opens Part 2 of his Discourse on Inequality with the famous statement “The first man who, having enclosed a piece of ground, thought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society.” Explain his point and discuss whether he is right.

3. During the French Revolution’s “Reign of Terror” Maximilien de Robespierre infamously stated “I am the people!” Is there anything in Rousseau’s conception of the general will that would lend itself to genocidal tyranny such as occurred in the Reign of Terror?

4. Rousseau begins the Social Contract with the famous statement “Man is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they.” Explain his point and discuss whether you agree.

5. Is Rousseau’s conception of civil religion and its dogmas a good thing or a bad thing? Explain.

 

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#18

 

THE LIMITED PURPOSE OF PUNISHMENT

 

Cesare Beccaria

 

Born in Milan, Italy, Cesare Beccaria (1738–1794) is best remembered for his influential work On Crimes and Punishment (1764), which critiqued the ineffective and often brutal criminal justice system of his time. In its place, he recommends a series of reforms that were based on current psychological theories of human motivation. His work was both an important contribution to political philosophy and a tool that brought about change in the justice systems of several European countries. Beccaria argues that there are only two acceptable justifications for punishment, namely, to prevent the criminal from repeating crimes and to deter others from breaking the law. And, to have the greatest deterrence value, punishment should immediately follow a crime. Drawing on associationist theories of psychology, such as that of David Hartley (1705-1757), Beccaria maintains that we can strengthen the association between the notions of crime and punishment when we know the rules by which the mind connects those two concepts together. Swiftness does just that, and any delay weakens the connection. Further, severity of punishment does nothing to enhance the connection between a crime and its punishment, and, thus, the most effective punishments should be mild, but swift. Beccaria offers one of the first sustained critiques of the death penalty. His principal argument is that capital punishment does not deter criminals, and, instead, long term imprisonment makes a more lasting impression on the minds of spectators. Further, the death penalty has harmful effects on society by reducing people’s sensitivity to human suffering. Beccaria recognizes that capital punishment is in fact practiced everywhere and it may be hard to break that custom; nevertheless, he hopes that the collective voice of critics of the death penalty scattered around the world will influence political rulers.

 

12. THE INTENT OF PUNISHMENTS

 

Prevention and Deterrence

From the foregoing considerations it is evident that the intent of punishment is not to torment a sentient being, nor to undo a crime already committed. Is it possible that torment and useless cruelty, the instrument of furious fanaticism or of impotency of tyrants, can be authorized by a political body? Instead of being influenced by passion, such institutions should be the cool moderator of the passions of individuals. Can the groans of a tortured wretch bring back the time past, or reverse the crime he has committed?

            The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the same offense. Such punishments, therefore, and such a manner of inflicting them ought to be chosen in a way that will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

 

19. THE ADVANTAGES OF IMMEDIATE PUNISHMENT

 

Short Imprisonment before a Trial

The more immediately after the commission of a crime a punishment is inflicted, the more just and useful it will be. It will be more just because it spares the criminal the cruel and superfluous torment of uncertainty, which increases in proportion to the strength of his imagination and the sense of weakness. It will also be more just because the removal of liberty, being a punishment, should be inflicted before condemnation only for as short a time as possible. Imprisonment, then, is only the means of securing the accused person until he is tried, condemned, or acquitted, and should not only be of a short duration, but it should be accompanied with as little severity as possible. The time of imprisonment should be determined by the necessary preparation for the trial, along with the right of priority for the oldest prisoners. The confinement should not be stricter than is required to prevent his escape or his concealing the evidence of his crime, and the trial should be conducted with all possible speed. Can there be more a cruel contrast than the between the habitual idleness of a judge, and the painful anxiety of the accuse, or, the comforts and pleasures of an insensible magistrate, and the filth and misery of prison? In general as I have observed above, the degree of the punishment and the consequences of a crime, should be contrived so that it has the greatest possible effect on others, with the least possible pain to the delinquent. If there is any society in which this is not a fundamental principle, it is an unlawful society. For, humankind by their union, originally intended to subject themselves to the fewest evils possible.

 

Association of Ideas

An immediate punishment is more useful because the smaller the interval or time between the punishment and the crime, the stronger and more lasting will be the association of the two ideas of crime and punishment. Accordingly, one is considered as the cause, and the other as the unavoidable and necessary effect. It is demonstrated that the association of ideas is the cement which unites the fabric of the human intellect, without which pleasure and pain would be insignificant mental sensations. The common people (that is, all people who have no general ideas or universal principles) act in view of the most immediate and familiar associations. However, our more remote and complex ideas present themselves only to the minds of people who are passionately attached to a single object. This is also so of people with greater intellects who have acquired a habit of quickly comparing together a number of objects and forming a conclusion. The result is that the action in consequence becomes less dangerous and uncertain by this means.

            It is then of the greatest importance that the punishment should follow the crime as immediately as possible. This is so if we hope that, in the unrefined minds of the multitude, the seducing picture of the advantage arising from the crime should instantly awake the attendant idea of punishment. Delaying the punishment serves only to separate these two ideas, and thus affects the minds of spectator as being a terrible fight, rather than the necessary consequence of crime, the horror of which should contribute to heighten the idea of punishment.

            There is another excellent method of strengthening this important connection between the ideas of crime and punishment. This is to make the punishment as analogous as possible to the nature of the crime in order that the punishment may lead the mind to consider the crime in a different point of view from that in which it was placed by the flattering idea of promised advantages.

            Crimes of less importance are commonly punished either in the obscurity of a prison, or the criminal is transported and enslaved by a distant society which he never offended. This makes him an absolutely useless example considering how far he is from the place where the crime was committed. People do not, in general, commit great crimes deliberately, but rather in a sudden burst of passion. They commonly look on the punishment due to a great crime as remote and improbable. Therefore, the public punishment of small crimes will make a greater impression, and by deterring people from the smaller, we will effectively prevent the greater.

 

27. THE MILDNESS OF PUNISHMENTS

 

Certainty vs. Severity

The course of my ideas has carried me away from my subject, to the elucidation of which I now return. Crimes are more effectively prevented by the certainty of the punishment, rather than the severity. Hence, to become useful virtues, the necessary caution of a magistrate and the necessary inflexibility of a judge need to be joined with mild legislation. The certainty of a small punishment will make a stronger impression than will the fear of one more severe, if attended with the hopes of escaping. For it is human nature to be terrified at the approach of the smallest inevitable evil, while hope (the best gift of heaven) has the power of dispelling the apprehension of a greater. This is especially supported by examples of rescue, which weakness or avarice too frequently afford.

            If punishments are very severe, people are naturally led to the perpetration of other crimes to avoid the punishment due to the first. The countries and times most notorious for severity of punishments were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed. For the hand of the legislator and the assassin were directed by the same spirit of ferocity. On the throne, this attitude dictated ironclad laws for slaves and savages. In private, it motivated people to sacrifice one tyrant to make room for another.

 

People Adjust to Increases of Severity

In proportion as punishments become crueler, the minds of people grow hardened and insensible; this is just as a fluid rises to the same height with that which surrounds it. Because of the continual force of the passions, in a period of a hundred years, the wheel terrifies no more than prison did before. For a punishment to be effective, all that is needed is that the evil it brings about should exceed the good expected from the crime. Included in the calculation should be the certainty of the punishment, and the loss of the expected advantage. All severity beyond this is superfluous, and therefore tyrannical.

            People regulate their conduct by the repeated impressions of evils they know, and not by those with which they are unacquainted. For example, let us suppose that there are two nations. In one the greatest punishment is perpetual slavery, and in the other it is the wheel. I say that both will inspire the same degree of terror. Further, there can be no reasons for increasing the punishments of the first, which are not equally valid for augmenting those of the second, thus creating more lasting and more creative modes of tormenting, and so on to the most exquisite refinements of a science too well known to tyrants.

            There are yet two other consequences of cruel punishments, which counteract the purpose of their institution (which was to prevent crimes). The first arises from the impossibility of establishing an exact proportion between the crime and punishment. For though creative cruelty has greatly multiplied the variety of torments, yet the human frame can suffer only to a certain degree, beyond which it is impossible to proceed, regardless of how great was the initial crime. The second consequence is exemption from penalty. Human nature is limited no less in evil than in good. Excessive cruelty can only be temporary since it is impossible for it to be supported by a permanent system of legislation. For if the laws are too cruel, they must be altered otherwise anarchy will follow.

            Who would not shudder with horror when reading in history about the barbarous and useless torments that were coolly invented and executed by people who were called sages? Who does not tremble at the thought of thousands of wretches forced desperately to return to a state of nature because of what the laws caused or tolerated (insofar as the laws favor the few and outrage the many). Or at people accused of impossible crimes, fabricated from ignorance and superstition. Or at people guilty only of having been faithful to their own principles. Who, I say, can without horror, think of them being torn to pieces with slow and studied barbarity, by people endowed with the same passions and the same feelings? A delightful spectacle to a fanatic multitude!

 

28. THE PUNISHMENT OF DEATH

 

We Don’t Give Up our Right to Life

The useless profusion of punishments, which has never made people better, induces me to inquire whether punishment by death is really just or useful in a well-governed state. What right, I ask, do people have to cut the throats of their fellow-creatures? Certainly not the right on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will which is the aggregate of that of each individual. Did anyone ever give to others the right of taking away his life? Each person gives only the smallest portion of his liberty over to the good of the public. Is it possible that this small portion contains the greatest good of all, namely, that person’s life? If this were so, how can it be reconciled to the principle which tells us that a person has no right to kill himself? Certainly he must have this if he could give it away to another.

 

Only One Justification of Capital Punishment

But the punishment of death is not authorized by any right, for I have demonstrated that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary, or useful to the general good. But if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity.

            The death of a citizen cannot be necessary except in one case. This is when he is deprived of his liberty and yet still has enough power and connections to endanger the security of the nation, that is, when his existence may produce a dangerous revolution in the established form of government. But even in this case, it is only necessary when a nation is on the verge of recovering or losing its liberty, or, in times of absolute anarchy, when the disorders themselves hold the place of laws. But this is not so in a reign of peace, or in a form of government approved by the united wishes of the nation, or in a state well fortified from enemies without, and supported by strength within (and, even more effectively, by popular opinion), or where all power is lodged in the hands of the true sovereign, or where riches can purchase pleasures and not authority. In these there can be no necessity for taking away the life of a subject.

 

Capital Punishment Does Not Deter

Consider whether the experience of all ages is not sufficient to prove that the punishment of death has never prevented determined people from injuring society. If the example of the Romans; if twenty years reign of Elizabeth, empress of Russia, in which she gave the fathers of their country an example more memorable than many conquests bought with blood. If, I say, all this is not sufficient to persuade people, who always suspect the voice of reason and who chose rather to be led by authority, then let us consult human nature in proof of my assertion.

            It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance. For our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent, but momentary, impulse. The power of habit is universal over every sentient being. It is by habit that we learn to speak, to walk, and to satisfy our necessities. So too the ideas of morality are stamped on our minds by repeated impressions. The death of a criminal is a terrible but momentary spectacle, and therefore a less effective method of deterring others, than the continued example of a person deprived of his liberty and condemned (as a beast of burden) to repair by his labor the injury he has done to society. “If I commit such a crime,” says the spectator to himself, “I shall be reduced to that miserable condition for the rest of my life.” This is a much more powerful preventive than the fear of death, which people always see in distant obscurity.

            The terrors of death make so slight an impression that it does not have enough force to withstand our natural human forgetfulness, even in the most essential things and when assisted by the passions. Violent impressions surprise us, but their effect is momentary. They are fit to produce those revolutions which instantly transform a common person into a Lacedemonian or a Persian. But in a free and quiet government, such impressions should be frequent rather than strong.

            To the masses, the execution of a criminal is entertainment, and in some it excites compassion mixed with indignation. Both of these sentiments fill the mind with a greater terror than the needed terror which the laws try to inspire. But in the contemplation of continued suffering, terror is the only (or at least the predominant) sensation. The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.

 

Advantages of Perpetual Slavery

For a punishment to be just, it should have only that degree of severity that is sufficient to deter others. Now there is no person, with the least reflection, who would jeopardize the total and continual loss of his liberty for the sake of the greatest advantages he could possibly obtain resulting from a crime. Consequently, perpetual slavery contains all that is necessary to deter the most hardened and determined, as much as the punishment of death. In fact, I say it has more. There are many who can look upon death with courage and steadfastness. Some approach it through fanaticism, and others through vanity that attends us even to the grave. Others approach it from a desperate resolution either to get rid of their misery, or cease to live. But fanaticism and vanity abandon the criminal in slavery, in chains and fetters, in an iron cage. Despair seems rather the beginning than the end of their misery. By collecting itself and uniting all its force, the mind can momentarily repel the attack of grief. But its strongest efforts are insufficient to resist perpetual wretchedness.

            In all nations where death is used as a punishment, every example supposes a new crime committed. However, in perpetual slavery, every criminal affords a frequent and lasting example. If it is necessary for people to frequently be witnesses of the power of the laws, then criminals should frequently be put to death. But this supposes a frequency of crimes, and for that reason this punishment will cease to have its effect, and thus it becomes useful and useless at the same time.

            Suppose you say that perpetual slavery is as painful a punishment as death, and therefore as cruel. I answer that if all the miserable moments in the life of a slave were collected into one point, it would be a more cruel punishment than any other. But these are scattered through his whole life, whereas the pain of death exerts all its force in a moment. There is also another advantage in the punishment of slavery, which is that it is more terrible to the spectator than to the sufferer himself. For the spectator considers the sum of all his wretched moments, whereas the sufferer, by the misery of the present, is prevented from thinking of the future. All evils are increased by the imagination, and the sufferer finds resources and consolations, of which the spectators are ignorant (judge by their own sensibility of what passes in a mind, by habit grown callous to misfortune).

 

Perpetual Slavery combats Religious Repentance

Let us, for a moment, note the reasoning of a thief or assassin, who is deterred from violating the laws [because of execution] by the gibbet or the wheel. (I am aware that developing the feelings of one’s own heart is an art which education only can teach; nevertheless, although a villain may not be able to give a clear account of his principles, they still influence his conduct.) He reasons as follows: “What are these laws that I am obligated to respect which make so great a difference between me and a rich man? He refuses me the pocket change I ask of him, and excuses himself by instructing me to have recourse to labor, with which he is unacquainted. Who made these laws? The rich and the great, who never stooped to visit the miserable huts of the poor, who have never seen a poor person dividing a piece of moldy bread, surrounded by the cries of his starving children and the tears of his wife. Let us break those ties that are fatal to the greatest part of humankind, and only useful to a few indolent tyrants. Let us attack injustice at its source. I will return to my natural state of independence. I will live free and happy on the fruits of my courage and industry. A day of pain and repentance may come, but it will be short. For an hour of grief I will enjoy years of pleasure and liberty. As king of a small number of people who are as determined as myself, I will correct the mistakes of fortune, and I will see those tyrants grow pale and tremble at the sight of him, whom with insulting pride, they would not even rank with their dogs and horses.”

            Religion then presents itself to the mind of this lawless villain by promising him almost a certainty of eternal happiness upon the easy terms of repentance. This contributes much to lessen the horror of the last scene of the tragedy.

            Consider now the villain who foresees that he will pass many years, even his whole life, in pain and slavery. He will be a slave to those laws by which he was protected, in sight of his fellow citizens with whom he lives in freedom and society. He thus makes a useful comparison between those evils, the uncertainty of his success, and the shortness of the time in which he shall enjoy the fruits of his crime. The example of those wretches continually before his eyes makes a much greater impression on him than a punishment, which instead of correcting, makes him more hardened.

 

Harmful Effects of the Death Penalty

The punishment of death is harmful to society from the example of cruelty it presents. If the passions, or the necessity of war, have taught people to shed the blood of their fellow-creatures, the laws, which are intended to moderate the savagery of humankind, should not increase it by examples of cruelty, which is even more horrible since punishment is usually attended with formal ceremony. Is it not absurd that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe in those moments when private interest is silent, or combined with that of the public. What are the natural feelings of every person concerning the punishment of death? We may read them in the contempt and indignation with which everyone looks on the executioner, who is nevertheless an innocent executor of the public will. In this light, the executioner is a good citizen, who contributes to the advantage of society and is the instrument of the general security within, just as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of humankind permanent, even though contrary to reason? It is that in a secret corner of the mind in which the original impressions of nature are still preserved, people discover a sentiment which tells them that their lives are not lawfully in the power of anyone, except only that necessity which with its iron scepter rules the universe.

            What must people [i.e., potential criminals] think when they see wise magistrates and grave ministers of justice, with indifference and tranquility, dragging a criminal to death? Or consider, while a wretch trembles with agony expecting the fatal stroke, the judge who has condemned him leaves his tribunal to enjoy the comforts and pleasures of life, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority? They will say, “Ah! Those cruel formalities of justice are a cloak to tyranny. They are a secret language, a solemn veil, intended to conceal the sword by which we are sacrificed to the insatiable idol of despotism. Murder, which they would represent to us as a horrible crime, we see practiced by them without repugnance, or remorse. Let us follow their example. A violent death appeared terrible in their descriptions, but we see that it is the affair of a moment. It will be still less terrible to him, who not expecting it, escapes almost all the pain.” Such is the fatal, though absurd reasoning of people who are disposed to commit crimes, on whom the abuse of religion has more influence than religion itself.

 

Overcoming the Tradition of the Death Penalty

If it is objected that almost all nations in all ages have punished certain crimes with death, I answer that the force of these examples disappears when opposed to truth, against which it is vain to offer further recommendation. The history of humanity is an immense sea of errors in which a few obscure truths may here and there be found.

            Consider that human sacrifices have also been common in almost all nations. That some societies only, either few in number, or for a very short time, abstained from the punishment of death, is in fact favorable to my argument. For such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived when truth will be the portion of the majority (as falsehood was previously).

            I am aware that the voice of one philosopher is too weak to be heard when surrounded by the uproar of a multitude, blindly influenced by custom. But there are a small number of sages, scattered around the earth, who will echo my views from the bottom of their hearts. If these truths should happily force their way to the thrones of princes, let it be known to them that they come attended with the secret wishes of all humankind. Tell the sovereign who patronizes them with a gracious reception that his name will outshine the glory of conquerors, and that equal fame will elevate his peaceful trophies above those of a Titus, an Antoninus or a Trajan.

            How happy humankind would be if laws were now first formed, especially since we see benevolent monarchs on the thrones of Europe. They are friends to the virtues of peace and to the arts and sciences; they are fathers of their people and, though crowned, remain citizens. The increase of their authority augments the happiness of their subjects by destroying that transitional despotism which intercepts the prayers of the people to the throne. If these humane princes have allowed the old laws to continue, it is undoubtedly because they are deterred by the numberless obstacles, which oppose the subversion of errors established by the sanction of many ages. Accordingly, every wise citizen will wish for the increase of their authority.

 

Source: Cesare Beccaria, On Crimes and Punishments (1764), tr. Edward D. Ingraham.

 

Questions for Review

1. In the section on “association of ideas,” what are all the ways that he suggests for strengthening the link between crime and punishment,

2. Beccaria defends the view that punishments should be mild. What is his specific argument in the section people adjust to increases of severity”?

3. In the section 2.5 of The Social Contract, Rousseau argues that, through the social contract, citizens transfer their rights to life over to the general will, and may be executed for the good of the state. But in section 28 of On Crimes and Punishments, Beccaria argues that in the social contract we do not transfer our right to live to the general will. Explain their respective views and discuss who is right.

4. What are all the advantages of perpetual slavery, and how does it combat religious repentance?

5. In the section on the “harmful effects of the death penalty,” what are all the harmful effects that Beccaria mentions?

 

Questions for Analysis

1. Beccaria argues that the two sole justifications of punishment are to prevent the criminal from repeating crimes and to deter others from breaking the law. Critics would argue that Beccaria has left out another important justification of punishment, namely, retribution: people are punished for their crimes since that is what they deserve, and, as such, punishment balances the scales of justice. How might Beccaria respond to this criticism?

2. Discuss Beccaria’s argument for the mildness of punishment and say whether you agree.

3. In the section “only one justification of capital punishment,” explain that justification and say whether you agree.

4. Explain Beccaria’s argument in “perpetual slavery combats religious repentance,” and say whether you agree.

5. In the concluding section, Beccaria considers an argument for the death penalty from common consent: it is justified since nearly all countries practice it. Explain his criticism of this argument and say whether you agree.

 

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#19

 

ORIGINS OF LAWS AND RIGHTS

 

William Blackstone

 

Born in London into a middle class family, William Blackstone (1723-1780) was an English attorney, law professor at Oxford University, judge, and author of the Commentaries on the Laws of England (1765-1769). Whereas continental European legal tradition is based on Roman Law, that of England rests on common law, that is, a history of court cases and legal precedents established by judges beginning around the twelfth-century. Common law is often contrasted with statutory law that is enacted by a legislature. Based on his university lectures, Blackstone’s four-volume Commentaries was the first attempt to organize the English common law into a unified and rational system. With literary skill, he blended enlightenment political theory with the major topics of common law, and, for the first time, made the subject understandable to non-lawyers. His work influenced America’s founding fathers, and provided a convenient summary of law for nineteenth-century American lawyers. The selections below are from the introduction and first book of his work. The Introduction to the Commentaries discusses types of laws and their origin. Laws that pertain to human action are of five types. Natural laws are the eternal and immutable law of morality that God himself follows. He imprints these upon humans through our instinctive drive for self-love where individual happiness and eternal justice are interwoven. Since in our corrupt human state we cannot grasp the full implications of natural law, God thus reveals a portion of natural law though scripture, which is called divine law. Human laws, then, are founded on natural and divine laws. Laws of nations regulate the interaction of countries and depend upon both natural law and human-created treaties. Municipal laws are human created (positive) laws that concern people as citizens and our subsistence in society. Blackstone argues that there was no historical original contract that created society, and, instead, the foundation of society is a sense of weakness that necessitates a union among people. Book 1 of the Commentaries deals with the rights of persons, and there are two general sorts of rights: absolute and relative. The absolute ones belong to everyone in the state of nature, and the principal aim of human law is to protect these rights. The relative ones emerge within society based on the various relationships that people have with each other. The absolute rights are our natural liberties. When we enter into society, we give up part of our natural liberty, but only those that are necessary for the general advantage of the public. There are three types of absolute rights, namely, security, liberty, property; the right to security, in turn, entails the rights to life, limb, body, health and reputation. Corporations are “artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality” and are created for the advancement of religion, learning, and commerce.

 

OF THE NATURE OF LAWS IN GENERAL (Introduction, sect. 2)

 

Law as a Rule of Action Dictated by some Superior Being

Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action which is prescribed by some superior, and which the inferior is bound to obey.

            Thus, when the supreme Being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes, at his own pleasure, certain arbitrary laws for its direction,—as that the hand shall describe a given space in a given time, to which law as long as the work conforms, so long it continues in perfection, and answers the end of its formation.

            If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws, more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again; the method of animal nutrition, digestion, secretion, and all other branches of vital economy; are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great Creator.

            This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behavior.

 

Laws of Nature as God Willing Immutable Laws of Good and Evil

Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him on whom he depends as the rule of his conduct; not, indeed, in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will.

            This will of his Maker is called the law of nature. For as God, when He created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion, so, when he created man, and endued him with free-will to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

            Considering the Creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to His creature, man, however unjust or severe. But, as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to everyone his due; to which three general precepts Justinian has reduced the whole doctrine of law.

            But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As, therefore, the Creator is a being not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised, but has graciously reduced the rule of obedience to this one paternal precept, ''that man should pursue his own true and substantial happiness.'' This is the foundation of what we call ethics, or natural law; for the several articles into which it is branched in our systems, amount to no more than demonstrating that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

            This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.

            But, in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

 

Divine Law as Revealed Parts of Natural Law

This has given manifold occasion for the benign interposition of divine Providence, which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law; because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

 

Human Laws founded on Natural Law and Divine Law

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points in which both the divine law and the natural leave a man at his own liberty, but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and, from these prohibitions, arises the true unlawfulness of this crime. Those human laws that annex a punishment to it do not at all increase its moral guilt, or superadd any fresh obligation, “in the court of conscience,” to abstain from its perpetration. Nay, if any human law should allow or enjoin [i.e., encourage] us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But, with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws,—such, for instance, as exporting of wool into foreign countries,— here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

 

Law of Nations dependent on Natural Law and Treaties

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature, and the law of God. Neither could any other law possibly exist: for a law always supposes some superior who is to make it; and, in a state of nature, we are all equal, without any other superior but Him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations," which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject; and therefore the civil law very justly observes, that “that rule which natural reason has dictated to all men is called the law of nations.”

 

Municipal (Positive) Law as Duties of Citizens for the Peace of Society

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." . . . .

            Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbor, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbor than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more than that he do contribute, on his part, to the subsistence and peace of the society.

            It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. . . . Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner, not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people. . . .

 

Original Contract as a Sense of Weakness that Necessitates a Union

The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent: and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole, or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection should be certainly extended to any. . . .

            How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperil, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

 

Types of Government: Democracy, Aristocracy, Monarchy, Mixed

The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly, consisting of all the free members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three. . . .

            Thus these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry these means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero declares himself of opinion, "That the best constituted republic, is that which is duly compounded of these three estates, the monarchical, aristocratical, and democratical." Yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.

            But, happily for us of this island, the British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. . . . For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united [i.e., through the King, House of Lords, and House of Commons]. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power.

 

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS (1.1)

 

Four Divisions of the Laws: Rights of Persons, of Things, Private Wrongs, Public Wrongs

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero, and after him our Bracton, have expressed it, sanctio justa, jubens honesta et prohibens contraria [i.e., a just decree, commanding what is honorable and forbidding the contrary], it follows that the primary and principal object of the law are rights and wrongs. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division; and shall, in the first place, consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

            Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and, secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemesnors.

            The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts: 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring or losing them. 3. Private wrongs, or civil injuries, with the means of redressing them by law. 4. Public wrongs, or crimes and misdemesnors, with the means of prevention and punishment.

 

Absolute Rights of Nature vs. Relative Rights of Societies

We are now first to consider the rights of persons, with the means of acquiring and losing them.

            Now the rights of persons that are commanded to be observed by the municipal law are of two sorts: first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are reciprocally the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people.

            Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

            The rights of persons considered in their natural capacities are also of two sorts, absolute and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

            By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behavior of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like,) then they become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws; private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.

            For the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. Such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these is clearly a subsequent consideration. And, therefore, the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple: and then such rights as are relative, which, arising from a variety of connections, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to—though in reality they are not—than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.

 

Natural Liberty

The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable than that wild and savage liberty which is sacrificed to obtain it. For no man that considers a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases: the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life. Political, therefore, or civil liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind, but that every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny: nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty: whereas, if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance; by supporting that state of society, which alone can secure our independence. Thus the statute of king Edward IV., which forbade the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savored of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II., which prescribes a thing seemingly as indifferent, (a dress for the dead, who are all ordered to be buried in woolen,) is a law consistent with public liberty; for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, when prudently framed, are by no means subversive, but rather introductive, of liberty; for, as Mr. Locke has well observed where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint. . . .

 

Three Types of Rights: Security, Liberty, Property

Thus much for the declaration of our rights and liberties. The rights themselves . . . may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property. . . .

            I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

            1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if anyone beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor. . . .

            2. A man's limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him to protect himself from external injuries in a state of nature. To these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled without a manifest breach of civil liberty.

            Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo [i.e., in self-defense], or in order to preserve them.. . .

            This natural life, being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority. Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach of those laws of society, which are enforced by the sanction of capital punishments. . . .

            3. Besides those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount not to destruction of life or member.

            4. The preservation of a man's health from such practices as may prejudice or annoy it; and

            5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right. But these three last articles (being of much less importance than those which have gone before, and those which are yet to come,) it will suffice to have barely mentioned among the rights of persons: referring the more minute discussion of their several branches to those parts of our commentaries which treat of the infringement of these rights, under the head of personal wrongs.

            II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in this kingdom, it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. . . .

            Of great importance to the public is the preservation of this personal liberty; for if once it were left in the power of any the highest magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown,) there would soon be an end of all other rights and immunities. Some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth than such as are made upon the personal liberty of the subject.

            III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries: but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. . . .

 

 

CORPORATIONS AS ARTIFICIAL PERSONS WITH LEGAL IMMORTALITY (1.18)

We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

            These artificial persons are called bodies politic, bodies corporate, (corpora torporata,) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and forever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To show the advantages of these incorporations, let us consider the case of a college in either of our universities, founded “for study and prayer,” for the encouragement and support of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive, any laws or rules of their conduct; none, at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be forever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant. . . .

 

Source: William Blackstone, Commentaries on the Laws of England (1765-1769), Introduction, Section 2; Book 1, Chapters 1 and 18.

 

Questions for Review

1. Describe how natural law is connected to God’s will and wisdom.

2. Explain the five types of law, namely natural, divine, human, laws of nations, and municipal.

3. Explain Blackstone’s view of the original contract.

4. Describe the distinction between absolute and relative rights.

5. Describe the components of the right to security.

 

Questions for Analysis

1. Blackstone argues that self-love is the foundation of natural law: God “has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter.” Thus, the main precept of natural law is ''that man should pursue his own true and substantial happiness.'' Are public and private interests really united as inseparably as Blackstone claims? Explain.

2. Blackstone states that “it is the sense of their weakness and imperfection that keeps mankind together. . . .  And this is what we mean by the original contract of society.” In his critique of the original contract Hume argued that “A small degree of experience and observation suffices to teach us that society cannot possibly be maintained without the authority of magistrates, and that this authority must soon fall into contempt where exact obedience is not paid to it. The observation of these general and obvious interests is the source of all allegiance, and of that moral obligation which we attribute to it.” Are they saying essentially the same thing? Explain.

3. According to Blackstone, there are five parts to the right of security. Is he pushing things too far by maintaining that all five of these components are absolute and natural rights? Explain.

4. Blackstone looks at two laws enacted by Edward IV and Charles II respectively, where the former was oppressive but the latter was not. Explain Blackstone’s reasoning and discuss whether you agree.

5. Blackstone argues that corporations are artificial persons. Is there anything in his analysis that would foreshadow the current controversy surrounding the contention that corporations are people?

 

 

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#20

 

CAPITALISM AND LIMITED GOVERNMENT

 

Adam Smith

 

Born in Kirkcaldy, Scotland, Adam Smith (1723–1790) was a professor of moral philosophy at the University of Glasgow, and is best remembered for his defense of free-market economics and his notion of the individual hand. The selections below are from two of his works. First, in The Theory of Moral Sentiments (1759), he describes how the selfish desire for luxury drives the poor man to better his conditions, and this, in turn, drives the economic development. As the rich accumulate their wealth, though, the poor indirectly benefit by being brought into an economic system that produces the luxury goods that the rich people desire. In An Inquiry into the Nature and Causes of the Wealth of Nations (1776), Smith discusses the benefits of free trade and the limited but necessary role that governments must play in society. He begins with the often-stated view that humans cannot survive on their own, and, instead, require cooperation from others for their basic necessities. That cooperation, he argues, does not stem from any natural benevolence that we have towards each other, but rather through other people’s self-love: “by treaty, by barter, and by purchase” others find it to their own advantage to give us what we need to survive. Smith championed the view that governments should intervene as little as possible in a country’s economic affairs, and this is particularly evident in his views on domestic and foreign industry. The dominant economic theory of international trade in Smith’s time was a type of protectionism called mercantilism, according to which each country attempts to accumulate more capital than rival countries. Two principal components of mercantilism were, (1) the use of tariffs and monopolies to discourage imports, which keep money within one’s country’s borders, and, (2) increasing exports, which brings in money from outside countries. Smith recognizes that we naturally want to support our domestic industries, but he rejects mercantilist restrictions by governments. By simply following our own self-interest, the economy of one’s country will automatically be directed for the better by an “invisible hand.” For example, a series of mercantilist British laws called “corn laws” heavily taxed imports on foreign grains as a way of supporting Britain’s own grain industry. Smith criticizes these for doing more harm than good, and he suggests that Britain’s domestic prosperity resulted from the freedom of its citizens, and not from its government’s protectionist economic policies.

            However, Smith argues, the government does need to be directly in charge of some social institutions. A first area is with the military which protects “society from the violence and invasion of other independent societies.” A second area is with the justice system which protects every member of society from injustice or oppression by every other member. A third area is with public works and institutions that are advantageous to society, but would be too expensive for private people or businesses to pay for by themselves. There are three areas of public works of this sort. The first concerns those relating to commerce, such as the creation of good roads, bridges, navigable canals, and harbors, which facilitate commerce in general. There are also governmental institutions to help protect domestic businesses in foreign countries, which may require the presence of the military and governmental ambassadors. The costs of all of these public works, though, should be placed upon the businesses that benefit from them through a tax or user fee. Second, the government must see to the education of the youth through public schools. The third area of government involvement concerns religion, and Smith discusses the pros and cons of state-sponsored religion. On the pro side, he presents the view of David Hume, who argued that religions will be less fanatical when ministers receive their salary from the government, and thus will not need to put on a show to compete with other ministers for church members. On the con side, Smith argues that state religions result in brutal religious persecutions. Also, he argues, there will be less fanaticism in a truly free market of religious institutions. For, open competition for membership would result in a large number of religious denominations, none of which would dominate the others. And, to get along with all the other denominations, each small denomination would have to tone down its fanaticism.

 

4.1. SELFISHNESS AND ECONOMIC DEVELOPMENT (The Theory of Moral Sentiments)

The poor man’s son, whom heaven in its anger has visited with ambition, when he begins to look around him admires the condition of the rich.  He finds the cottage of his father too small for his accommodation, and fancies he should be lodged more at his ease in a palace.  He is displeased with being obliged to walk a-foot, or to endure the fatigue of riding on horseback.  He sees his superiors carried about in machines, and imagines that in one of these he could travel with less inconveniency.  He feels himself naturally indolent, and willing to serve himself with his own hands as little as possible; and judges, that a numerous retinue of servants would save him from a great deal of trouble.  He thinks if he had attained all these, he could sit still contentedly, and be quiet, enjoying himself in the thought of the happiness and tranquillity of his situation.  He is enchanted with the distant idea of this felicity.  It appears in his fancy like the life of some superior rank of beings, and, in order to arrive at it, he devotes himself for ever to the pursuit of wealth and greatness.  To obtain the conveniencies which these afford he submits in the first year, nay in the first month of his application, to more fatigue of body and more uneasiness of mind than he could have suffered through the whole of his life from the want of them.  He studies to distinguish himself in some laborious profession.  With the most unrelenting industry he labours night and day to acquire talents superior to all his competitors.  He endeavours next to bring those talents into public view, and with equal assiduity solicits every opportunity of employment.  For this purpose he makes his court to all mankind; he serves those whom he hates, and is obsequious to those whom he despises.  Through the whole of his life he pursues the idea of a certain artificial and elegant repose which he may never arrive at, for which he sacrifices a real tranquillity that is at all times in his power, and which, if in the extremity of old age he should at last attain to it, he will find to be in no respect preferable to that humble security and contentment which he had abandoned for it.  It is then, in the last dregs of life, his body wasted with toil and diseases, his mind gauled and ruffled by the memory of a thousand injuries and disappointments which he imagines he has met with from the injustice of his enemies, or from the perfidy and ingratitude of his friends, that he begins at last to find that wealth and greatness are mere trinkets of frivolous utility, no more adapted for procuring ease of body or tranquillity of mind than the tweezer-cases of the lover of toys; and like them too more troublesome to the person who carries them about with him than all the advantages they can afford him are commodious. . . .

            But in the languor of disease, and the weariness of old age, the pleasures of the vain and empty distinctions of greatness disappear.  To one in this situation they are no longer capable of recommending those toilsome pursuits in which they had formerly engaged him.  In his heart he curses ambition, and vainly regrets the ease and the indolence of youth, pleasures which are fled forever, and which he has foolishly sacrificed for what, when he has got it, can afford him no real satisfaction. . . .

            But though this splenetic philosophy, which in time of sickness or low spirits is familiar to every man, thus entirely depreciates those great objects of human desire, when in better health and in better humour, we never fail to regard them under a more agreeable aspect.  Our imagination, which in pain and sorrow seems to be confined and cooped up within our own persons, in times of ease and prosperity expands itself to everything around us.  We are then charmed with the beauty of that accommodation which reigns in the palaces and economy of the great; and admire how everything is adapted to promote their ease, to prevent their wants, to gratify their wishes, and to amuse and entertain their most frivolous desires.  If we consider the real satisfaction which all these things are capable of affording, by itself and separated from the beauty of that arrangement which is fitted to promote it, it will always appear in the highest degree contemptible and trifling.  But we rarely view it in this abstract and philosophical light.  We naturally confound it in our imagination with the order, the regular and harmonious movement of the system, the machine or economy by means of which it is produced.  The pleasures of wealth and greatness, when considered in this complex view, strike the imagination as something grand and beautiful and noble, of which the attainment is well worth all the toil and anxiety which we are so apt to bestow upon it.

 

The Poor Benefit through an Invisible Hand

And it is well that nature imposes upon us in this manner.  It is this deception which rouses and keeps in continual motion the industry of mankind.  It is this which first prompted them to cultivate the ground, to build houses, to found cities and commonwealths, and to invent and improve all the sciences and arts, which ennoble and embellish human life; which have entirely changed the whole face of the globe, have turned the rude forests of nature into agreeable and fertile plains, and made the trackless and barren ocean a new fund of subsistence, and the great high road of communication to the different nations of the earth.  The earth by these labours of mankind has been obliged to redouble her natural fertility, and to maintain a greater multitude of inhabitants.  It is to no purpose, that the proud and unfeeling landlord views his extensive fields, and without a thought for the wants of his brethren, in imagination consumes himself the whole harvest that grows upon them.  The homely and vulgar proverb, that the eye is larger than the belly, never was more fully verified than with regard to him.  The capacity of his stomach bears no proportion to the immensity of his desires, and will receive no more than that of the meanest peasant.  The rest he is obliged to distribute among those, who prepare, in the nicest manner, that little which he himself makes use of, among those who sit up the palace in which this little is to be consumed, among those who provide and keep in order all the different baubles and trinkets, which are employed in the œconomy of greatness; all of whom thus derive from his luxury and caprice, that share of the necessaries of life, which they would in vain have expected from his humanity or his justice.  The produce of the soil maintains at all times nearly that number of inhabitants, which it is capable of maintaining.  The rich only select from the heap what is most precious and agreeable.  They consume little more than the poor, and in spite of their natural selfishness and rapacity, tho’ they mean only their own conveniency, tho’ the sole end which they propose from the labours of all the thousands whom they employ, be the gratification of their own vain and insatiable desires, they divide with the poor the produce of all their improvements.  They are led by an invisible hand to make nearly the same distribution of the necessaries of life, which would have been made, had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without knowing it, advance the interest of the society, and afford means to the multiplication of the species.  When providence divided the earth among a few lordly masters, it neither forgot nor abandoned those who  seemed to have been left out in the partition.  These last too enjoy their share of all that it produces.  In what constitutes the real happiness of human life, they are in no respect inferior to those who would seem so much above them.  In ease of body and peace of mind, all the different ranks of life are nearly upon a level, and the beggar, who suns himself by the side of the highway, possesses that security which kings are fighting for.

 

BENEFITS OF FREE TRADE (The Wealth of Nations)

1.2. Self-interest and Bartering for Necessities

In civilized society he [i.e., a human being] stands at all times in need of the cooperation and assistance of great multitudes, while his whole life is scarce sufficient to gain the friendship of a few persons. In almost every other race of animals, each individual, when it is grown up to maturity, is entirely independent, and in its natural state has occasion for the assistance of no other living creature. But man has almost constant occasion for the help of his brethren, and it is in vain for him to expect it from their benevolence only. He will be more likely to prevail if he can interest their self-love in his favor, and show them that it is for their own advantage to do for him what he requires of them. Whoever offers to another a bargain of any kind proposes to do this. Give me that which I want, and you shall have this which you want, is the meaning of every such offer; and it is in this manner that we obtain from one another the far greater part of those good offices which we stand in need of. It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages. Nobody but a beggar chooses to depend chiefly upon the benevolence of his fellow-citizens. Even a beggar does not depend upon it entirely. The charity of well-disposed people, indeed, supplies him with the whole fund of his subsistence. But though this principle ultimately provides him with all the necessaries of life which he has occasion for, it neither does nor can provide him with them as he has occasion for them. The greater part of his occasional wants are supplied in the same manner as those of other people, by treaty, by barter, and by purchase. With the money which one man gives him he purchases food. The old clothes which another bestows upon him he exchanges for other old clothes which suit him better, or for lodging, or for food, or for money, with which he can buy either food, clothes, or lodging, as he has occasion.

 

4.2. Domestic Industries promoted through an Invisible Hand

As every individual, therefore, endeavors as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labors to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. Nor is it always the worse for the society that it was no part of it. By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good. It is an affectation, indeed, not very common among merchants, and very few words need be employed in dissuading them from it.

            What is the species of domestic industry which his capital can employ, and of which the produce is likely to be of the greatest value, every individual, it is evident, can, in his local situation, judge much better than any statesman or lawgiver can do for him. The statesman who should attempt to direct private people in what manner they ought to employ their capitals would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it.

            To give the monopoly of the home-market to the produce of domestic industry, in any particular art or manufacture, is in some measure to direct private people in what manner they ought to employ their capitals, and must, in almost all cases, be either a useless or a hurtful regulation. If the produce of domestic can be brought there as cheap as that of foreign industry, the regulation is evidently useless. If it cannot, it must generally be hurtful. It is the maxim of every prudent master of a family never to attempt to make at home what it will cost him more to make than to buy. The tailor does not attempt to make his own shoes, but buys them of the shoemaker. The shoemaker does not attempt to make his own clothes, but employs a tailor. The farmer attempts to make neither the one nor the other, but employs those different artificers. All of them find it for their interest to employ their whole industry in a way in which they have some advantage over their neighbors, and to purchase with a part of its produce, or what is the same thing, with the price of a part of it, whatever else they have occasion for.

 

4.5. Foreign Free Trade and Prosperity

The trade of the merchant carrier, or of the importer of foreign corn [and other grains] in order to export it again, contributes to the plentiful supply of the home market. It is not indeed the direct purpose of his trade to sell his corn there. But he will generally be willing to do so, and even for a good deal less money than he might expect in a foreign market, because he saves in this manner the expense of loading and unloading, of freight and insurance. The inhabitants of the country which, by means of the carrying trade, becomes the magazine and storehouse for the supply of other countries can very seldom be in want themselves. Though the carrying trade might thus contribute to reduce the average money price of corn in the home market, it would not thereby lower its real value. It would only raise somewhat the real value of silver.

            The carrying trade was in effect prohibited in Great Britain, upon all ordinary occasions, by the high duties upon the importation of foreign corn, of the greater part of which there was no drawback; and upon extraordinary occasions, when a scarcity made it necessary to suspend those duties by temporary statutes, exportation was always prohibited. By this system of laws, therefore, the carrying trade was in effect prohibited upon all occasions.

            That system of laws [such as the corn laws], therefore, which is connected with the establishment of the bounty, seems to deserve no part of the praise which has been bestowed upon it. The improvement and prosperity of Great Britain, which has been so often ascribed to those laws, may very easily be accounted for by other causes. That security which the laws in Great Britain give to every man that he shall enjoy the fruits of his own labor is alone sufficient to make any country flourish, notwithstanding these and twenty other absurd regulations of commerce; and this security was perfected by the revolution much about the same time that the bounty was established. The natural effort of every individual to better his own condition, when suffered to exert itself with freedom and security is so powerful a principle that it is alone, and without any assistance, not only capable of carrying on the society to wealth and prosperity, but of surmounting a hundred impertinent obstructions with which the folly of human laws too often encumbers its operations; though the effect of these obstructions is always more or less either to encroach upon its freedom, or to diminish its security. In Great Britain industry is perfectly secure; and though it is far from being perfectly free, it is as free or freer than in any other part of Europe.

 

5.1.1. FIRST GOVERNMENTAL DUTY: DEFENSE

The first duty of the sovereign, that of protecting the society from the violence and invasion of other independent societies, can be performed only by means of a military force. But the expense both of preparing this military force in time of peace, and of employing it in time of war, is very different in the different states of society, in the different periods of improvement. . . .

            The first duty of the sovereign, therefore, that of defending the society from the violence and injustice of other independent societies, grows gradually more and more expensive as the society advances in civilization. The military force of the society, which originally cost the sovereign no expense either in time of peace or in time of war, must, in the progress of improvement, first be maintained by him in time of war, and afterwards even in time of peace.

            The great change introduced into the art of war by the invention of fire-arms has enhanced still further both the expense of exercising and disciplining any particular number of soldiers in time of peace, and that of employing them in time of war. Both their arms and their ammunition are become more expensive. A musket is a more expensive machine than a javelin or a bow and arrows; a cannon or a mortar than a balista or a catapulta. The powder which is spent in a modern review is lost irrecoverably, and occasions a very considerable expense. The javelins and arrows which were thrown or shot in an ancient one, could easily be picked up again, and were besides of very little value. The cannon and the mortar are not only much dearer, but much heavier machines than the balista or catapulta, and require a greater expense, not only to prepare them for the field, but to carry them to it. As the superiority of the modern artillery too over that of the ancients is very great, it has become much more difficult, and consequently much more expensive, to fortify a town so as to resist even for a few weeks the attack of that superior artillery. In modern times many different causes contribute to render the defense of the society more expensive. The unavoidable effects of the natural progress of improvement have, in this respect, been a good deal enhanced by a great revolution in the art of war, to which a mere accident, the invention of gunpowder, seems to have given occasion.

            In modern war the great expense of fire-arms gives an evident advantage to the nation which can best afford that expense, and consequently to an opulent and civilized over a poor and barbarous nation. In ancient times the opulent and civilized found it difficult to defend themselves against the poor and barbarous nations. In modern times the poor and barbarous find it difficult to defend themselves against the opulent and civilized. The invention of fire-arms, an invention which at first sight appears to be so pernicious, is certainly favorable both to the permanency and to the extension of civilization.

 

5.1.2. SECOND GOVERNMENTAL DUTY: JUDICIAL SYSTEM

The second duty of the sovereign, that of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice, requires, too, very different degrees of expense in the different periods of society.

            Among nations of hunters, as there is scarce any property, or at least none that exceeds the value of two or three days labor, so there is seldom any established magistrate or any regular administration of justice. Men who have no property can injure one another only in their persons or reputations. . . . Wherever there is great property there is great inequality. For one very rich man there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many. The affluence of the rich excites the indignation of the poor, who are often both driven by want, and prompted by envy, to invade his possessions. It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labor of many years, or perhaps of many successive generations, can sleep a single night in security. He is at all times surrounded by unknown enemies, whom, though he never provoked, he can never appease, and from whose injustice he can be protected only by the powerful arm of the civil magistrate continually held up to chastise it. The acquisition of valuable and extensive property, therefore, necessarily requires the establishment of civil government. Where there is no property, or at least none that exceeds the value of two or three days labor, civil government is not so necessary.

            Civil government supposes a certain subordination. But as the necessity of civil government gradually grows up with the acquisition of valuable property, so the principal causes which naturally introduce subordination gradually grow up with the growth of that valuable property. . . .

            The office of judge is in itself so very honorable that men are willing to accept of it, though accompanied with very small emoluments. The inferior office of justice of peace, though attended with a good deal of trouble, and in most cases with no emoluments at all, is an object of ambition to the greater part of our country gentlemen. The salaries of all the different judges, high and low, together with the whole expense of the administration and execution of justice, even where it is not managed with very good economy, makes, in any civilized country, but a very inconsiderable part of the whole expense of government.

            The whole expense of justice, too, might easily be defrayed by the fees of court; and, without exposing the administration of justice to any real hazard of corruption, the public revenue might thus be discharged from a certain, though, perhaps, but a small encumbrance. . . .

            When the judicial is united to the executive power, it is scarce possible that justice should not frequently be sacrificed to what is vulgarly called polities. The persons entrusted with the great interests of the state may, even without any corrupt views, sometimes imagine it necessary to sacrifice to those interests the rights of a private man. But upon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security. In order to make every individual feel himself perfectly secure in the possession of every right which belongs to him, it is not only necessary that the judicial should be separated from the executive power, but that it should be rendered as much as possible independent of that power. The judge should not be liable to be removed from his office according to the caprice of that power. The regular the good-will or even upon the good economy payment of his salary should not depend upon of that power.

 

5.1.3. THIRD GOVERNMENTAL DUTY: PUBLIC WORKS AND INSTITUTIONS

The third and last duty of the sovereign or commonwealth is that of erecting and maintaining those public institutions and those public works, which, though they may be in the highest degree advantageous to a great society, are, however, of such a nature that the profit could never repay the expense to any individual or small number of individuals, and which it therefore cannot be expected that any individual or small number of individuals should erect or maintain. The performance of this duty requires, too, very different degrees of expense in the different periods of society.

            After the public institutions and public works necessary for the defense of the society, and for the administration of justice, both of which have already been mentioned, the other works and institutions of this kind are chiefly those for facilitating the commerce of the society, and those for promoting the instruction of the people. The institutions for instruction are of two kinds: those for the education of youth, and those for the instruction of people of all ages. The consideration of the manner in which the expense of those different sorts of public works and institutions may be most properly defrayed will divide this third part of the present chapter into three different articles.

 

Article 1: Of the public Works and Institutions for facilitating the Commerce of the Society

 

And, first, of those which are necessary for facilitating Commerce in general.

 

That the erection and maintenance of the public works which facilitate the commerce of any country, such as good roads, bridges, navigable canals, harbors, etc. must require very different degrees of expense in the different periods of society is evident without any proof. The expense of making and maintaining the public roads of any country must evidently increase with the annual produce of the land and labor of that country, or with the quantity and weight of the goods which it becomes necessary to fetch and carry upon those roads. The strength of a bridge must be suited to the number and weight of the carriages which are likely to pass over it. The depth and the supply of water for a navigable canal must be proportioned to the number and tonnage of the lighters which are likely to carry goods upon it; the extent of a harbor to the number of the shipping which are likely to take shelter in it.

            It does not seem necessary that the expense of those public works should be defrayed from that public revenue, as it is commonly called, of which the collection and application are in most countries assigned to the executive power. The greater part of such public works may easily be so managed as to afford a particular revenue sufficient for defraying their own expense, without bringing any burden upon the general revenue of the society.

            A highway, a bridge, a navigable canal, for example, may in most cases be both made and maintained by a small toll upon the carriages which make use of them: a harbor, by a moderate port-duty upon the tonnage of the shipping which load or unload in it. The coinage, another institution for facilitating commerce, in many countries, not only defrays its own expense, but affords a small revenue or seignorage to the sovereign. The post-office, another institution for the same purpose, over and above defraying its own expense, affords in almost all countries a very considerable revenue to the sovereign.

            When the carriages which pass over a highway or a bridge, and the lighters which sail upon a navigable canal, pay toll in proportion to their weight or their tonnage, they pay for the maintenance of those public works exactly in proportion to the wear and tear which they occasion of them. It seems scarce possible to invent a more equitable way of maintaining such works. This tax or toll too, though it is advanced by the carrier, is finally paid by the consumer, to whom it must always be charged in the price of the goods. As the expense of carriage, however, is very much reduced by means of such public works, the goods, notwithstanding the toll come cheaper to the consumer than they could otherwise have done; their price not being so much raised by the toll as it is lowered by the cheapness of the carriage. . . .

 

Of the Public Works and Institutions which are necessary for facilitating particular Branches of Commerce

 

The object of the public works and institutions above mentioned is to facilitate commerce in general. But in order to facilitate some particular branches of it, particular institutions are necessary, which again require a particular and extraordinary expense.

            Some particular branches of commerce, which are carried on with barbarous and uncivilized nations, require extraordinary protection. An ordinary store or counting-house could give little security to the goods of the merchants who trade to the western coast of Africa. To defend them from the barbarous natives, it is necessary that the place where they are deposited should be, in some measure, fortified. The disorders in the government of Indostan have been supposed to render a like precaution necessary even among that mild and gentle people; and it was under pretence of securing their persons and property from violence that both the English and French East India Companies were allowed to erect the first forts which they possessed in that country. Among other nations, whose vigorous government will suffer no strangers to possess any fortified place within their territory, it may be necessary to maintain some ambassador, minister, or counsel, who may both decide, according to their own customs, the differences arising among his own countrymen, and, in their disputes with the natives, may, by means of his public character, interfere with more authority, and afford them a more powerful protection, than they could expect from any private man. The interests of commerce have frequently made it necessary to maintain ministers in foreign countries where the purposes, either of war or alliance, would not have required any. The commerce of the Turkey Company first occasioned the establishment of an ordinary ambassador at Constantinople. The first English embassies to Russia arose altogether from commercial interests. The constant interference which those interests necessarily occasioned between the subjects of the different states of Europe, has probably introduced the custom of keeping, in all neighboring countries, ambassadors or ministers constantly resident even in the time of peace. This custom, unknown to ancient times, seems not to be older than the end of the fifteenth or beginning of the sixteenth century; that is, than the time when commerce first began to extend itself to the greater part of the nations of Europe, and when they first began to attend to its interests.

            It seems not unreasonable that the extraordinary expense which the protection of any particular branch of commerce may occasion should be defrayed by a moderate tax upon that particular branch; by a moderate fine, for example, to be paid by the traders when they first enter into it, or, what is more equal, by a particular duty of so much percent upon the goods which they either import into, or export out of, the particular countries with which it is carried on. The protection of trade in general, from pirates and free-booters, is said to have given occasion to the first institution of the duties of customs. But, if it was thought reasonable to lay a general tax upon trade, in order to defray the expense of protecting trade in general, it should seem equally reasonable to lay a particular tax upon a particular branch of trade, in order to defray the extraordinary expense of protecting that branch. . . .

 

Article 2: Of the Expense of the Institutions for the Education of Youth

The institutions for the education of the youth may, in the same manner, furnish a revenue sufficient for defraying their own expense. The fee or honorary which the scholar pays to the master naturally constitutes a revenue of this kind.

            Even where the reward of the master does not arise altogether from this natural revenue, it still is not necessary that it should be derived from that general revenue of the society, of which the collection and application are, in most countries, assigned to the executive power. Through the greater part of Europe, accordingly, the endowment of schools and colleges makes either no charge upon that general revenue, or but a very small one. It everywhere arises chiefly from some local or provincial revenue, from the rent of some landed estate, or from the interest of some sum of money allotted and put under the management of trustees for this particular purpose, sometimes by the sovereign himself, and sometimes by some private donor. . . .

            A man without the proper use of the intellectual faculties of a man, is, if possible, more contemptible than even a coward, and seems to be mutilated and deformed in a still more essential part of the character of human nature. Though the state was to derive no advantage from the instruction of the inferior ranks of people, it would still deserve its attention that they should not be altogether uninstructed. The state, however, derives no inconsiderable advantage from their instruction. The more they are instructed, the less liable they are to the delusions of enthusiasm and superstition, which, among ignorant nations, frequently occasion the most dreadful disorders. An instructed and intelligent people, besides, are always more decent and orderly than an ignorant and stupid one. They feel themselves, each individually, more respectable and more likely to obtain the respect of their lawful superiors, and they are therefore more disposed to respect those superiors. They are more disposed to examine, and more capable of seeing through, the interested complaints of faction and sedition, and they are, upon that account, less apt to be misled into any wanton or unnecessary opposition to the measures of government. In free countries, where the safety of government depends very much upon the favorable judgment which the people may form of its conduct, it must surely be of the highest importance that they should not be disposed to judge rashly or capriciously concerning it.

 

Article 3: Of the Expense of the Institutions for the Instruction of People of all Ages

The institutions for the instruction of people of all ages are chiefly those for religious instruction. This is a species of instruction of which the object is not so much to render the people good citizens in this world, as to prepare them for another and a better world in a life to come. The teachers of the doctrine which contains this instruction, in the same manner as other teachers, may either depend altogether for their subsistence upon the voluntary contributions of their hearers, or they may derive it from some other fund to which the law of their country may entitle them; such as a landed estate, a tithe or land-tax, an established salary or stipend. Their exertion, their zeal and industry, are likely to be much greater in the former situation [i.e., in privately-funded religion] than in the latter [i.e., publicly-funded religion]. In this respect the teachers of new religions have always had a considerable advantage in attacking those ancient and established systems of which the clergy, reposing themselves upon their benefices, had neglected to keep up the fervor of faith and devotion in the great body of the people, and having given themselves up to indolence, were become altogether incapable of making any vigorous exertion in defense even of their own establishment. . . . Such a clergy, upon such an emergency, have commonly no other resource than to call upon the civil magistrate to persecute, destroy or drive out their adversaries, as disturbers of the public peace. It was thus that the Roman catholic clergy called upon the civil magistrates to persecute the protestants, and the church of England to persecute the dissenters; and that in general every religious sect, when it has once enjoyed for a century or two the security of a legal establishment, has found itself incapable of making any vigorous defense against any new sect which chose to attack its doctrine or discipline. . . .

            [David Hume writes the following in support of state religion:]

 

It may naturally be thought, at first sight, that the ecclesiastics belong to the first class [of professions that bring advantage and pleasure to society], and that their encouragement, as well as that of lawyers and physicians, may safely be entrusted to the liberality of individuals [i.e., privately-funded sources], who are attached to their doctrines, and who find benefit or consolation from their spiritual ministry and assistance. Their industry and vigilance will, no doubt, be whetted by such an additional motive; and their skill in the profession, as well as their address in governing the minds of the people, must receive daily increase from their increasing practice, study, and attention.

            But if we consider the matter more closely, we shall find that this interested diligence of the clergy is what every wise legislator will study to prevent; because in every religion except the true it is highly pernicious, and it has even a natural tendency to pervert the true, by infusing into it a strong mixture of superstition, folly, and delusion. Each ghostly practitioner, in order to render himself more precious and sacred in the eyes of his retainers, will inspire them with the most violent abhorrence of all other sects, and continually endeavor, by some novelty, to excite the languid devotion of his audience. No regard will be paid to truth, morals, or decency in the doctrines inculcated. Every tenet will be adopted that best suits the disorderly affections of the human frame. Customers will be drawn to each conventicle by new industry and address in practicing on the passions and credulity of the populace. And in the end, the civil magistrate will find that he has dearly paid for his pretended frugality in saving a fixed establishment for the priests. And that in reality the most decent and advantageous composition which he can make with the spiritual guides, is to bribe their indolence by assigning stated salaries to their profession, and rendering it superfluous for them to be farther active than merely to prevent their flock from straying in quest of new pastures. And in this manner ecclesiastical establishments, though commonly they arose at first from religious views, prove in the end advantageous to the political interests of society.

 

. . . But [contrary to Hume] if politics had never called in the aid of religion, had the conquering party never adopted the tenets of one sect more than those of another when it had gained the victory, it would probably have dealt equally and impartially with all the different sects, and have allowed every man to choose his own priest and his own religion as he thought proper. There would in this case, no doubt, have been a great multitude of religious sects. Almost every different congregation might probably have made a little sect by itself, or have entertained some peculiar tenets of its own. Each teacher would no doubt have felt himself under the necessity of making the utmost exertion and of using every art both to preserve and to increase the number of his disciples. But as every other teacher would have felt himself under the same necessity, the success of no one teacher, or sect of teachers, could have been very great. The interested and active zeal of religious teachers can be dangerous and troublesome only where there is either but one sect tolerated in the society, or where the whole of a large society is divided into two or three great sects; the teachers of each acting by concert, and under a regular discipline and subordination. But that zeal must be altogether innocent where the society is divided into two or three hundred, or perhaps into as many thousand small sects, of which no one could be considerable enough to disturb the public tranquility. The teachers of each sect, seeing themselves surrounded on all sides with more adversaries than friends, would be obliged to learn that candor and moderation which is so seldom to be found among the teachers of those great sects whose tenets, being supported by the civil magistrate, are held in veneration by almost all the inhabitants of extensive kingdoms and empires, and who therefore see nothing round them but followers, disciples, and humble admirers. The teachers of each little sect, finding themselves almost alone, would be obliged to respect those of almost every other sect, and the concessions which they would mutually find it both convenient and agreeable to make to one another, might in time probably reduce the doctrine of the greater part of them to that pure and rational religion, free from every mixture of absurdity, imposture, or fanaticism, such as wise men have in all ages of the world wished to see established; but such as positive law has perhaps never yet established, and probably never will establish, in any country: because, with regard to religion, positive law always has been, and probably always will be, more or less influenced by popular superstition and enthusiasm. . . .

            But though this equality of treatment should not be productive of this good temper and moderation in all, or even in the greater part of the religious sects of a particular country, yet provided those sects were sufficiently numerous, and each of them consequently too small to disturb the public tranquility, the excessive zeal of each for its particular tenets could not well be productive of any very harmful effects, but, on the contrary, of several good ones: and if the government was perfectly decided both to let them all alone, and to oblige them all to let alone one another, there is little danger that they would not of their own accord subdivide themselves fast enough so as soon to become sufficiently numerous. . . .

            There are two very easy and effectual remedies, however, by whose joint operation the state might, without violence, correct whatever was unsocial or disagreeably rigorous in the morals of all the little sects into which the country was divided.

            The first of those remedies is the study of science and philosophy, which the state might render almost universal among all people of middling or more than middling rank and fortune; not by giving salaries to teachers in order to make them negligent and idle, but by instituting some sort of probation, even in the higher and more difficult sciences, to be undergone by every person before he was permitted to exercise any liberal profession, or before he could be received as a candidate for any honorable office of trust or profit. If the state imposed upon this order of men the necessity of learning, it would have no occasion to give itself any trouble about providing them with proper teachers. They would soon find better teachers for themselves than any whom the state could provide for them. Science is the great antidote to the poison of enthusiasm and superstition; and where all the superior ranks of people were secured from it, the inferior ranks could not be much exposed to it.

            The second of those remedies is the frequency and gaiety of public diversions. The state, by encouraging, that is by giving entire liberty to all those who for their own interest would attempt without scandal or indecency, to amuse and divert the people by painting, poetry, music, dancing; by all sorts of dramatic representations and exhibitions, would easily dissipate, in the greater part of them, that melancholy and gloomy humor which is almost always the nurse of popular superstition and enthusiasm. Public diversions have always been the objects of dread and hatred to all the fanatical promoters of those popular frenzies. The gaiety and good humor which those diversions inspire were altogether inconsistent with that temper of mind which was fittest for their purpose, or which they could best work upon. Dramatic representations, besides, frequently exposing their artifices to public ridicule, and sometimes even to public execration, were upon that account, more than all other diversions, the objects of their peculiar abhorrence.

 

Source: Adam Smith, The Theory of Moral Sentiments (1757), and An Inquiry into the Nature and Causes of the Wealth of Nations (1776).

 

Questions for Review

1. In the section “the poor benefit through an invisible hand” explain how the greed of the rich brings economic benefit to the poor.

2. In the section “self-interest and bartering for necessities,” what is Smith’s explanation for how individuals survive through the cooperation of others?

3. In the section “domestic industry promoted through an invisible hand” Smith argues that favoring particular domestic industries over foreign ones will “in almost all cases, be either a useless or a hurtful regulation.” How would it be either be useless or hurtful?

4. In the section on “the public works and institutions for facilitating the commerce of the society,” what are the specific ways that Smith suggests for covering the costs of public works that he mentions?

5. In the section on “the expense of the institutions for the education of youth,” what are the benefits that society receives from education the “inferior ranks of people”?

6. What are Smith’s arguments against state-sponsored religion (i.e., his arguments against Hume’s view)?

7. Smith notes two ways that the government can help reduce religious fanaticism. What are they?

 

Questions for Analysis

1. Augustine proposes a thought experiment about two people, one rich, the other poor: "The rich man is anxious with fears, longing with discontent. . . . But the other man of moderate wealth is content with a small and contained estate, that most dear to his own family. . . . I do not know anyone who could be such a fool, that he’d dare hesitate which to prefer" (City of God 4.3). In the section titled "Selfishness and Economic Development," Smith too describes the downside of wealth, but comes to a different conclusion. Discuss smith's view on this and say whether he or Augustine is correct."

2. In his first discussion of the invisible hand, Smith argues that the conditions of poor people will be improved through the economic development brought on by rich people’s desire for luxury. Is he right? Explain.

3. Smith is against mercantilist policies of protectionism, and believes that they are ultimately a bad thing for one’s domestic economy. In contemporary terms, Smith would be in favor of free trade agreements and might even support the World Trade Organization. Is Smith correct that free trade will not hurt one’s domestic economy?

4. While Smith’s second discussion of the “invisible hand” is in the context of free trade, he notes that “in many other cases” when we pursue our private financial interests the economy also benefits as an unintended consequence. Have contemporary defenders of the “invisible hand” pushed Smith’s principle too far?

5. The most extreme libertarians today argue that governments should not be involved in any public works projects, including those that Smith mentions. Instead, libertarians maintain, they should all be owned and run by private business and cooperatives. Is Smith right that some public works are so large and expensive that only the government is suited to take on those tasks? Explain.

6. Throughout the above selections, Smith suggests ways in which government costs for various projects can be defrayed by user fees and special taxes on businesses, rather than having the costs paid from the government’s general revenue. Yet Smith also notes that the costs of special taxes on businesses will be passed on to consumers. Has Smith gone too far in his advocacy of user fees and special taxes on businesses? That is, in the situations that he describes, are there greater advantages to having costs paid through the government’s general revenue?

7. Smith’s debate with Hume over state-sponsored religion rests on the question of whether religious fanaticism would increase or decrease in a free market place of religious ideas. Hume argues that a free market of religion will increase fanaticism, and thus Hume favors state-sponsored religion. Smith argues that a free market of religion will tone down religious fanaticism, and, thus, Smith opposes state-sponsored religion. Pick one of these views and defend it against the attacks by the other.

8. In his criticism of Hume, Smith argues that a free market place of religion might eventually lead to “pure and rational religion, free from every mixture of absurdity, imposture, or fanaticism.” Describe the type of religion that he has in mind, and discuss whether this is likely to come about in a truly free market place of religion.