Particular rights: Yet all this, it may be said, is to dwell upon the heights of theory. It is one thing to show the notions a State must recognize if it is to move to the achievement of its purpose. It is a very different thing to show how that purpose is in fact to be achieved. It is even easy to insist that States which fall consistently below the standard of ideals men think at some definite period to be attainable will, sooner or later, be challenged at their foundations. Such a declaration of right Provides neither a catalogue of actual rights which demand recognition, nor the institutions through which their conquest is made possible. The argument, though important, is less formidable than it appears.
Though we can never determine with exactitude the level at which the demand for rights ought to be satisfied, we can, at least, infer from the historic record the rights which will claim recognition. Though we can never say that any definite institutions are bound to result in their , recognition, we can at least postulate that, without certain institutions the rights which seek fulfillment will never gain it. We cannot, that is, ever positively assure the fulfillment of the State-purpose, but, at least negatively, we can point out the conditions which destroy the chance of such fulfillment.
What, at the very outset, needs to Le emphasized is that rights are not merely, or even greatly, a matter of the written record. Musty parchments will doubtless give them greater sanctity, they will not ensure their realization. The first amendment to the American Constitution legally secures freedom of speech and of peaceable assembly, the fourth amendment legally secures the citizen that his house shall not be searched except upon a warrant of probable cause the eighth amendment, legally secures the citizen against excessive bail.
Yet in one hysterical week the action of the executive power rendered all these amendments worthless, and the fifteenth amendment, which sought political equality for the colored citizens of the South, has never been applied either by the executive or by the courts. A case like Ex Parte O’Brien in England, and the Pluchard Case in France, both go to show that the maintenance of rights is much more a question of habit and tradition than of the formality of written enactment.
This does not imply the worthlessness of the latter. It is always valuable to be able to attack the executive in terms of a law it has clearly offended and the written enactment always serves to remind a people that it has had to fight for its rights. But, at least ultimately, only deliberate challenge will be successful in breaking the purpose of a government determined upon unlawful conduct. It is the proud spirit of citizens, less than the letter of the law, that is their most real safeguard.
Nor is the necessary protection to be found in that separation of powers which both Locke and Montesquieu thought to be the secret of freedom. That classic doctrine enshrines the vital truth that the more independent a judiciary, the more adequate are the safeguards of rights, but since any judiciary is ultimately appointed by the executive, its independence is rarely final. The separation of powers acts as a check upon the undue expansion of each authority’s allotted sphere, but it does not determine the quality and extent of the powers that are allotted.
Nor, moreover, is it possible to define with any precision the boundaries between the three divisions into Which it is customary to divide the power of the State. Judges are compelled to make the law, when legislatures confirm nomination to office they are acting within the executive sphere, and the ordinance power of the modern executive is not only genuinely legislative, but has reached dimensions more formidable than that of Parliament itself. To separate powers with the theoretic nicety of the American Constitution may well be rather to confound them than to make them clear. At best, such separation is merely an index to competence but the use made of the index will depend upon the prevailing atmosphere of the given State. It is the legislature of modern Italy which has made of Mussolini an executive and legislature in one.
The problem, in short, of the realization of rights is best approached by discussing particular rights. We can, then, build from their sum a System of limitations upon the power of the State. Such a method serves several purposes. It indicates, in the first place, the position occupied by the individual in the community. It shows what he must possess if he is, in any creative way, to contribute his share to the common stock of welfare. It is the approach, secondly, to the meaning of liberty and equality.
When we know the rights we desire to maintain, we are in a better position to judge the positive institutions those concepts involve And,thirdly, to define in outline particular rights is to indicate, at least in a general way, the necessary character of political structure. From such an outline we can begin to fashion the way in which the co-originating power of the State should be executed. We shall perceive that the State, in such a background, is essentially a commmunitas communitatum, and not the crowning point of a hierarchical structure. It is not the body from which other bodies derive, its relationship to them is preeminent only as it is so judged by citizens upon grounds of moral rights.
Its authority, accordingly, becomes dependent upon the way in which it maintains such a system of rights as is here outlined. These, therefore, are not born of the State, but with it. They are the primary condition upon which, if not its existence, at least its quality, depends. Not, we say, its existence for a State may well, like Czarist. Russia, go to work against all decent justice and yet have power over a long period to maintain itself without serious challenge.
Let us first remind ourselves of what will be involved in a theory of rights to which we now seek to give Concrete expression. A State, it has been argued, is a territorial society divided into government and subjects. It exists, it exerts authority, it claims allegiance, in order that those citizens may realize in their lives the best of which they are capable to that end they have rights.
These are defined as the conditions without which no citizen can hope to achieve the best that is in him. Obviously, therefore, rights are not the creatures of law, but its condition precedent. They are that which law is seeking to realize. Institutions are, then, bad or good in proportion as they fail or succeed in the promotion of the purpose of rights. At the back of those conceptions there is a view of society as a system of finite selves, each unique and precious by reason of its uniqueness. That self seeks embodiment in a society the cohesiveness of which endangers the preservation of its special individuality save as the maintenance of its rights enables it to carve out its own channel of expression It does not possess its rights as an empty and formal claim
It possesses them that the fulfillment of diversity may maximize the richness of social effort. It has rights because it has duties. Our society is a functional society in which the test of structure is the service it can render. And service is personal service. It is the deliberate and conscious striving of each self in each generation that makes possible the increase of our social heritage. We are justified, not by what we are, but by what we can become. We experiment with our powers. We mould an environment in which those powers secure always an ampler field of play.
The citizen has a right to work. He is born into a world where, if rationally organized, he can live only by the sweat of his brow. Society owes him the occasion to perform his function. To leave him without access to the means of existence is to deprive him of that which makes possible the realization of personality. This does not mean the right to some particular work. A prime minister who has been oven thrown has not the right to be provided with labour of an identical character. Society cannot afford each man the choice of the effort he will make. It cannot, in any ultimate way, afford undue emphasis upon occupations which carry with them special dignity of recompense. It needs a supply of goods and services to maintain its life.
The right to work can mean no more than the right to be occupied in producing some share of those goods and services. Alternatively, therefore, the man who is deprived of the opportunity actively so to share is entitled to the equivalent reward of that opportunity. And since it is clear that no society could, over any long period, bear the cost of paying that equivalent to any large proportion of its members, it follows that the principle of insurance against unemployment is integral to the conception of the State. We must year by year abstain from consuming some due proportion of what we produce, that, in the lean years, those who, either temporarily or permanently, are deprived of the Opportunity to labour may not, also, be deprived of the means to live.
How such a system of insurance is most wisely organized is, with all its importance, rather a question of detail than of principle. What is fundamental is the recognition that to be his best self a man must work, and that the absence of work must mean provision until employment again offers the Opportunity of work. What is here urged is not a defense of parasitism, but a recognition that the performance of service is implicit in the nature of social life.
A man has not only the right to work. He has the right also to be paid an adequate wage for his labour. By the work that he performs he must be able to secure a return capable , of purchasing the standard of living without which creative citizenship is impossible. In such a notion there can be no fixity of amount. He needs the food which keeps him physically m, the clothing and shelter which make him begin life at least at that level where his energies are not wholly engaged in attention to purely physical wants. He needs the little comforts that make of life something more than a mean satisfaction of ugly wants.
The right to an adequate wage does not imply equality of income but it does, it may be urged imply that there must be a sufficiency for all before there is a superfluity for some. The contrast in the modern world between men and women who have never known a decent house, a decent meal, and clothing that barely protects them against the elements, and those who have never known what it is to have unsaturated a want that the possession of property can supply is an intolerable one.
Ethically, at least, it is no answer to this demand to argue that the productivity of the world makes impossible the realization of this right. The statistical proof that an equal division of the product of industry would hardly better the condition of the worker I only means the condemnation of the present system of production. It only means that the method we require for our end is different from the method we now use. It means that we must reorganize the instruments of production that they may satisfy the human demands made upon them.
Obviously, also, there is involved in the realization of this right the grave problem of population. We must chain the devil of Malthus if we are to satisfy our needs. We must make the increase of our numbers proportionate to our ability to satisfy the right of those numbers to an adequate standard of living. Here it is important to realise how closely the problem of population is related to the standard of life. Where the presence of numbers is most apparent, there, also, the human Wants are most appalling.
Immediately the standard of life is sufficient to cover the purely material appetite, the number of children ceases to act as a source of economic depression. It would seem the logical inference that the more rapidly we recognize the right to this adequacy the more rapidly we shall realise the most effective condition of its maintenance.
But, it may be said, even supposing that we can grapple with the problem of population, it is still dubious whether industrial productivity is sufficient to meet the problem of this adequate standard. The answer to that scepticism is, at the least, a twofold answer. Our industrial organization has not, thus far, been devised to meet a demand of this kind. It has been devised to satisfy the owner of capital, it has sought to fulfill not the function of service, but the function of acquisition. We do not know of what our industrial System is capable until we organize it for use and not for profit.
Any one who studies, for example, the facts of the coal industry in Great Britain will be appalled at the wastage the present technique of ownership involves. Anyone, to generalize, who regards the casual and haphazard character of the modern business man will realize how rarely he is competent for the proper performance of his task. We demand proof of competence from the lawyer and the doctor from the business man there IS demanded nothing save the ownership of property or the power to obtain credit.
We do not allow a doctor to hand over his practice to his son unless the son has obtained the necessary qualification but the son of a business man may succeed to his father’s enterprise without regard to the quality of his mind or his knowledge of its processes. We take no steps to direct the flow of capital into socially necessary production. We rarely-there are honorable exceptions seek to enlist an interest in production from those concerned with manual effort.
We are only beginning to realize that research into the processes of manufacture may improve them as surely as science has increased the power of modern warfare to destroy. Until in brief, experiment with the character and constitution of industry has proceeded upon a far vaster scale than we have so far known, the function we must seek that it fulfill is still the retaliation of adequate standards for those who live by its results.
Nor is that all. If it were true that the productivity of industry offers no hope of an adequate standard of life for all citizens we should be faced by a dilemma which perhaps Hobbes only in the history of political philosophy would have had the courage to confront. For in that event, either the social process must be a blind struggle to acquire, uninformed by moral purpose, or else those upon whom adequacy was conferred would have to be selected upon some rational principle.
In the first case all political philosophy would be superfluous. We might, indeed, have an art of politics akin in character to the maxims of Machiavelli, but it would be totally devoid of ethical content. In the second case, the present system would stand self condemned. For no one would seriously claim that the rewards of the modern State are distributed upon any recognizably organized basis.
They are not in the mass, a return to character or ability or service. Men succeed because they have chosen their parents with foresight, or because some product they manufacture happens to satisfy the public want. The incommensurable difference of the reward to a great artist like Meredith and a great pill maker like Sir Joseph Beecham is at least evidence that the method of valuation does not now proceed by ordered reason.
The fact surely is that we have so little attempted the conscious control of social organization that we have hardly sought to inquire into the principles it involves. If we start from the assumption that we must either, over a period, satisfy the basic impulses of men, or court disaster, it becomes obvious that we must organize the processes of production with the purpose of satisfying those basic impulses. To that end we must end the anarchy of the modern scheme.
From the mere competition of private and selfish interests we cannot secure a well-ordered society. From combination effected, as we have recently learned in detail,I to levy financial blackmail from the wants of society, we shall never secure a service conceived in terms of justice. Either the State must control industrial power in the interest of its citizens, or industrial power will control the State in the interests of its possessors.
The first need of the masses is to realize the right to adequate payment for their effort. The first principle, therefore, of industrial Organization is a system of institutions directed to that end. We shall discuss later the forms such institutions might take.
Here it will be sufficient to indicate certain obvious possibilities involved. The State must be regarded as the protector of the standards of industrial adventure. It must control the operations of capital at least to the point of making the rate of profit contingent upon the payment of an adequate rate of wages. Just as stringent legislation prevents the sale of impure food, so must stringent legislation prevent the payment of wages below a reasonable standard of living.
Already in the Trade Board system in Great Britain and the minimum wage legislation of the United States,2 we have the dawn, at least, of the recognition of this principle. What it means in theory is the restriction of the field covered by freedom of contract to a definite area. Industry, in Sir Frederic Pollock’s phrase, is regarded as a dangerous trade which can only be entered upon conditions. Men may agree to work, or to pay for work, only above that level of reward which the State deems necessary to the performance of its functions.
Obviously the minimum so fixed will vary with time and place though it may be hoped that the growth of international control will tend to make the highest State average the general average of civilization. But no State will permit business men to conduct an enterprise where the cost of that effort can be paid for only by the sacrifice of the essential conditions of citizenship. The laborer is worthy of his hire because he is a human being. He must receive the reward which makes possible the retaliation of his humanity.
Nothing in this, it should be added, involves either uniformity in the method or similarity in the technique of payment, it involves only the establishment of an adequate Wage as the basis of the industrial adventure. It may well be that inequality of payment, above that level, is demanded if the incentive to effort is to be sufficient.
Certainly the persistence of habit will probably make it necessary to give differential rates to the rare ability of the few for a long period of time. What we seem to require, wherever it is practicable, is the payment, at least in manual labour, of a basic wage which offers adequacy and of a piece-rate in return for effort above some average standard.
In that event what is clearly of the first importance is to secure an impartial authority to fix that standard. It cannot be left to the employer, since it is too greatly to his interest to fix the standard unduly high. It cannot be left to the worker who, similarly, would tend to fix it unduly low. We require an external body which can by research discover a basis from which an effort may be made to render a return to each man according to his powers. But those powers, where they are especially remarkable, can only be satisfied after the general wants of all have been supplied.
The obvious corollary of the right to an adequate wage is the right to reasonable hours of labour. The thing that makes a man a citizen is thought. He must, therefore, so distribute, the period of labour that he may have leisure for creative tasks. Obviously there is a physiological limit to the energy a man can afford to expend. But there is a civic limit to the amount the State can, for its own sake, permit him to expend. Those who devote their energies to attendance upon a machine become, as Aristotle saw, disqualified for the nobler tasks of life unless they have ample leisure to be other than the tenders of a machine.
Certainly the frustration of personality involved, in the long hours of toil characteristic, for instance, of the first part of the nineteenth century has been made obvious by inquiry into its results. Men and women came home from their daily toil incapable of thought and even of feeling. Their machines were their masters. There was no leisure in which they could find themselves. They knew only a life of endless toil. The right to reasonable hours of labour is the right to discover the land of the mind. It is the key to the intellectual heritage of the race.
The interpretation of reasonable in the analysis of this right has no fixity about it its content will depend upon the technique of production at any given time. Certainly in a World so complex as this, the eight-hour day has become the maximum man dare work at manual labour and still hope to understand the life about him. It will be possible, almost certainly, to decrease that maximum as mechanical invention progresses: the application of science to industry is, after ail, only a hundred and fifty years old.
But whatever be the improvements we can here expect, the notion of such a maximum is essential. A man may hope to write or paint, to administer or to teach, even to be employed in the handicrafts where the personal factor is important, and still remain conscious of creative powers, wherever he has to plan of himself the deadening effect of toil is mitigated, with a consequent gain to his contingent social utility. But as soon as his sphere of effort is mainly the repetition of a mechanical routine, the evidence is decisive that such labour is a barrier to happiness. He ceases to be able to experiment with himself.
The world outside does not appear a mystery he would explore. What he desires is simply to deaden the senses, to find, rarely in the realm of beauty, the means of forgetting the pain of toil. Any, one who reads the description I of the factory worker in the early period of the Industrial Revolution will realise how fatigue expressed itself in terms of a brutal coarseness fatal to that fine and free perceptiveness which comes to men whose creative faculties are given room for expansion.
But it is not enough, on the industrial side, to limit the hours of labour and to make the reward of effort adequate to the basic needs of life. A man might possess both these rights and yet remain fettered by the conditions of his service. Any theory of rights in the modern State must take account of the implications of large scale industrialism. It must realise that the institution of private property, of which we shall later examine the consequences, leaves the control of the industrial machine to the owners of capital, and that individual freedom, as when the single handicrafts man worked for a master, is no longer possible.
Obviously, in such a background, we must prevent that ownership of capital from degenerating into dictatorship. Exactly as the evolution of political authority has been concerned with the erection of limitations upon the exercise of power, so also with economic authority.
There is a right, that is to say, to be concerned in the government of industry as there is a right to be concerned in the government of politics. In a sense not less urgent than that in which Lincoln used it, no State can survive that is half-bond and half-free. The citizen as an industrial unit must somehow be given the power to share in the making of those decisions which affect him as a producer if he is to be in a position to maximize his freedom.
We must not unduly maximize the power he will have. The work-of the world has to be done and the number of people who will be able to hope for genuine significance in their daily toil is probably smaller than some are eager to imagine. What, certainly, we can mitigate is the unlimited power which the ownership of capital has conferred. We can compel discussion before action is taken where, for instance, it is proposed to dismiss a worker. We can compel discussion before changes are made in the technique of production.
We can erect institutions upon which the workers are represented for the governance of industry, and compel reference to them for the settlement of industrial method. We can universalize the standards exacted from industrial direction, and give to the workers such share as we choose in the fixation of those standards. We can transform the power of industrial capital from that in which it becomes the residuary legatee of the industrial process to one in which it receives a fixed remuneration determined by agreement for the service it contributes.
Just as the holder of government bonds has no control, as such, over government policy, so it is possible to prevent interference with the direction of an industrial enterprise by the loaners thereto of capital. What is here being urged is that the present system of private property does not in the least involve the present technique of industrial direction while that technique, above all with the largely unqualified right to hire and fire that it involves, is simply a mitigated form of slavery.
The right to a representative government in industry is the right to channels through which, in the necessary toil of life, the personality of the worker may find expression. In a democratic system it is impossible to maintain political freedom with industrial autocracy, and that the more clearly when the system of ownership so largely controls the substance of State policy.
Citizenship has been defined as the contribution of one instructed judgment to the public good. It follows therefore that the citizen has the right to such education as will lit him for the tasks of citizenship. He must be provided with the instruments which make possible the understanding of life. He must be able to give articulate expression to the wants he has, the meaning of the experience he has encountered. There is no more fundamental division in the modern State than that between those ,who have the control of knowledge and those who lack such control.
In the long run, power belongs to those who can formulate and grasp ideas. Granted that such ability exists in a wide range of inequality, there is yet, once more, a minimum basis of education below which no one of average intelligence can be permitted to fall. For unless I can follow With understanding the processes of politics those things which effect my life will be effected without my having the Opportunity to make my will enter in to the result.
First of all things, said Antiphon the Sophist, I place education certainly in the modern world the citizen who lacks it is bound to be the slave of others. He will not be able to convince his fellows. He will not be able to restrain his nature into those paths along which it is best fitted to travel. He will not rise to the full height of his personality. He will go through life, a stunted being whose impulses have never been ordered by reason into creative experiment.
The right to education does not mean the right to an identical intellectual training for all citizens. It involves the discovery of capacity and the fitting of the discipline conferred to the type of capacity made known. Obviously, it would be foolish waste to give an identical training to Meredith-and Clerk-Maxwell. But obviously, also, there is a minimum level below which no citizen can fall if he is to use the necessary intellectual instruments of our civilization.
He must be trained to make judgments. He must learn to weigh evidence. He must learn to choose between the alternatives between which he is called to decide. He must be made to feel that this is a world in which he can by the use of his mind and will shape at once outline and substance.
And it may be said here that any examination of the standards attained by modern States will reveal their inadequacy. The child who is turned at fourteen into an industry the Organization of which rarely admits of mental creativeness in any save those few who direct it is unlikely, as a general rule, to have been provided with the equipment necessary to the proper use of his native intelligence.
A first class mind may well fail to realize its powers simply because it has never been trained to the point where it is-conscious of them. Genius, it may well be, will always make its way whatever or in spite of the training afforded but the talent of the average man demands the most careful cultivation if it is to bear its due fruit.
A democratic System, it has been argued, is one in which the will of the average citizen has Channels of direct access to the sources of authority.There is, therefore, a right to political power This right. may be said to contain three derivative rights. There is,in the first place, the right to the franchise, however that be organized. Every adult citizen has the right to indicate what persons he desires should undertake the task of government. That right will clearly involve a choice of institutions.
The basis of the franchise may be industrial or geographical citizens may even be grouped as Hare desired, by their voluntary choice. I shall argue later that for the purpose of ultimate political decisions, the geographical method has the maximum advantage in this connection it is sufficient to establish the existence of the universal claim. Neither sex nor property, neither race nor creed, ought to prevent the citizen from aiding in the choice of his rulers. If it be argued that his choice is often wrong, the answer is that democracy lives by the method of trial and error.
If it be said that he rarely has the knowledge necessary to give a reasoned choice, the answer is that the State must then organize on his behalf access to that knowledge. For, as has already been pointed out, whenever the body of voters is limited, the welfare realized usually excludes that of the persons excluded. No test has been devised which enables us to limit the franchise in such fashion as to equate civic virtue with its possession. Its limitation to property-owners was disastrous to those who did not own property.
Its limitation to a creed or caste meant always special privilege for that creed or caste. Even Mill’s test of education,I is, beyond simple literacy, unrelated to the qualities ,We require, An historian, for example, whose expertness in the dissection of an early charter may be exquisite, may lack completely a sense of evidence when it is a question of deciding the merits of tariff reform. A scientist whose.
discoveries make possible the development of oceanic telegraphy may be utterly useless when it comes to the practical expression of his ideas. Certainly in the present state of our knowledge of human nature , we have no warrant for limitations of any general kind.
But it is not enough to admit a general and unlimited right to the franchise. I vote in order that I may choose my governors. I decide between points of view the qualities of which I am trained at some level to appreciate. But just as those who choose cannot be drawn from any special class in the community, so, also, those who are chosen cannot be members of a limited section only. We have need, in the first place, of governors who represent the widest possible experience.
No class can ever successfully give the law to another class no class, indeed, is ever good enough to legislate for another class. The absence of imitation is more urgent than in previous periods for the simple reason that the instrument of power to the mass of people means, inevitably, a more stringent scrutiny of the results of legislation than in the past. And it is, moreover, clear that to limit the right to share in the exercise of power is always, at least ultimately, to limit the numbers of those who share in the benefits of power.
The exclusion, for instance, of the Nonconformists from the franchise has left its definite impression upon the character of the older universities of Great Britain. The political habits of the land-owning class in England have profoundly affected the methods of its taxation. The right to represent becomes, in the background of historic experience, the logical result of the right to choose.
That does not mean that any person may, whatever qualifications he may lack,submit himself for choice without conditions. Rights, as has been insisted, are always relative to functions and there is no evident reason why the implications of the representative function-should ,not define the conditions of assuming it. So long, as the limits made do not press unequally upon different sections of the population, they are capable of defense if they aim at the improvement of the function concerned. An example will make this clear. It has been the custom of the English aristocracy to send their sons into the House of Commons at an early age.
Training has often been absent little has been known of aptitude but the power of family has usually been sufficient to discover a means of access to Parliament. Obviously there have been real advantages in the system cases like those of F ox and the younger Pitt show that it has not been devoid of benefit But it would be no invasion of the right to be elected to the House of Commons to make it contingent, for example, upon three years service in a local public authority.
It would be perfectly legitimate to hold that service in the central legislative assembly is so important in its results that proof of aptitude and experience must be offered before the claim to represent can be admitted. A limitation of this kind would press equally upon all members of the community , it would benefit no special section. If the use of a right can be improved in this fashion there IS no need to regard it as thereby weakened or destroyed No democracy can afford to neglect the proved sources of efficient service.
That is the basis of its life. Therein it differs from either monarchy or aristocracy, since these bring to their maintenance a certain quality of the mysterious a democracy does not contain. A monarchy, for instance, may, as in the France of the eighteenth century, win affection for its institutions, even when they are in fact obsolete, simply because the facts about them are unknown.
It removes its foundation from the field of popular choice, where the bases of a democracy are, in the nature of things, revealed by the, necessity of public analysis. Inevitably, therefore, the rights of a citizen are circumscribed by the needs of the community of which he is a part. What he is entitled to demand is that such circumscription bears equally upon all other citizens.
The right to be chosen as a governor implies as well the right to be chosen for political office. We do not, it will be noticed, argue that the right to vote implies the right to choose more than the representatives of a political assembly chosen, there cannot be limitations against the right to be chosen as a member of an administration. But the experience of democratic systems does not lend weight to the belief in a multiplied electoral power. Direct government of this kind, whether in the choice of men or of measures, may have worked with some success in the restricted area of the city state.
There a man might hope to be genuinely known to his neighbors, and a judgment based upon sufficient intimacy to be real became possible. That is not the case with States of the modern size. Even the plebiscite of the American Commonwealth results in the selection of a ruler distinguished rather by negative than by positive virtues, the system may produce a Lincoln, but it is by accident rather than by design. The ruler of the modern State needs to be chosen by men who have familiarity with his mind, who have tested him in the intimate fellowship of daily politics.
They also, as the case of Lord Goderich testifies, will make mistakes. But there is large:room in the indirect method for the recognition of quality than in the direct method. That has been made fully evident in those American States where the judiciary is elected by the people. And since they are the choosers of those from whom the leaders will be taken, restriction is not a limitation which involves privilege for a few. The equality is there, though the road to it ascends more steeply.
A political system in which the pivot is the right of the citizen to be articulate about his wants clearly requires to safeguard his articulateness. There must be that is to say, freedom of speech with all that makes freedom of speech effective. What is the substance of the right to such a freedom? It cannot merely mean the protection of a man in what he says, for thought is too closely interwoven with action to be dissociated from it. It cannot merely mean, either, the protection of a man as an individual, for much of what he says that is most urgent comes from his speech in concert with others.
Freedom of speech is a right that, clearly, needs definition in terms of the function it seeks to serve. A man’s citizenship, as I have argued, is the duty to contribute his instructed judgment to the public good. He cannot make that contribution if a penalty is attached to the expression of his thought. The case against persecution for opinion deemed wrong at some given time is perhaps the clearest issue in the whole course of history. The impalpable barriers of custom and convention Will almost always be sufficient to deter men from originality unless they possess qualities of an extraordinary kind. To allow a man to say what he thinks is to give his personality the only ultimate channel of full expression and his citizenship the only means of moral adequacy.
To act otherwise is to favor those who support the status quo, and thus either to drive the activities of men into underground and, therefore, dangerous channels, or to suppress experience not less entitled than any other to interpret publicly its meaning.
In general, the Western world outside of politics, has grown to the acceptance of freedom of speech. A man may now be an atheist or a vorticist without fear of legal penalty. It does not seem, however, to be realized that religious toleration cannot be ,fully attained so long as a State maintains special relations with a given Church.
For, in that case, whatever the law, there is bound to be a special prestige for those who belong to the official connection. For the State to stamp with its approval some special religious doctrine is to offer privilege to that doctrine even if the privilege does not assume institutional form. If the Church of England were separated from the State, Anglican theology could not maintain itself at Oxford and Cambridge against scientific theology.
If the Church of England were separate from the State, a single form of religious belief would not hold a privileged position in the educational system of the community. A State Church is bound to receive privileges in some shape or form and no citizen enjoys genuine freedom of religious conviction until the State is indifferent to every form of religious outlook from Atheism to Zoroastrianism.
The real source of conflict in the recognition of this right lies in the field of politics. The position of the modem State seems to be that opinions which strike at the existing order are illegal and must be suppressed. The grounds for that suppression assume very varied forms. Sometimes the opinion is penalized because it is held in itself to be evil sometimes the opinion is attacked because it is held to threaten the structure of the State sometimes it is penalized because it is held to involve disorder.
We must distinguish here with sharpness between the expression of these opinions, whether by a citizen, or by a group of citizens, and the doing of overt acts to give effect their substance. We must, further, consider separately the important issue of the power to control the expression of opinion in time of war or similar crisis. The relation of action to Opinion is a separate question from the nature of opinion itself. The needs of an abnormal period have, m our own day, been so strikingly illustrated that their discussion serves to throw special light upon the general problem.
The view I am concerned to urge is that from the standpoint of the State the citizen must be left unfettered to express either individually, or in concert with others, any opinions he happens to hold. He may preach the complete inadequacy of the social order. He may demand its overthrow by armed revolution. He may insist that the political system is the apotheosis of perfection. He may argue that all opinions which differ from his own ought to be subject to the severest suppression.
He may himself as an individual urge these views or join with others in their announcement. Whatever the form taken by their expression he is entitled to speak without hindrance of any kind. He is entitled, further, to use all the ordinary means of publication to make his views known. He may publish them as a book or pamphlet or in a newspaper he may give them in the form of a lecture he may announce them at a, public meeting. To be able to do any or all of these things, with the full protection of the State in so doing, is a right that lies at the basis of freedom.
For consider the alternatives. All criticism of social institutions is a matter of degree. If I prohibit X from preaching violent revolution, I shall ultimately prohibit X from suggesting that the given social order is not of divine origin. If I begin by assuming that Russian communism is politically obnoxious, I shall end by assuming that language classes to teach English to Russians are a form of communist propaganda.There is never sufficient certitude in social matters to make it desirable for any government to denounce it in the name of the State.
American experience of the last few years has made it painfully clear that there will never be present in constituted authority a sufficient nicety of discrimination to make it cert a in that the opinion attacked is one reasonably certain to give rise to present disorder. Men who are prevented from thinking as their experience teaches them will soon cease to think at all. Men who cease to think cease also to be in any genuine sense citizens. The instrument which makes them able to make effective their experience rusts into obsolescence by disuse.
It is no answer to this view to urge that it is the coronation of disorder. If views which imply violence have a sufficient hold upon the State to disturb its foundations, there is something radically wrong with the habits of that State. Men cling so persistently to their accustomed ways that the departure from them implied in violence is almost always evidence of deep seated disease.
For the common man has no interest in disorder, where he either embraces it, as in revolutionary Russia, or is indifferent to its occurrence, as in Sinn Fein, Ireland, it is because the government of the State has lost its hold upon his affections and no government loses the affection of its subjects save from a moral cause. The degree, in fact, to which a State permits criticism of its authority is the surest index to its hold upon the allegiance of the community.
Almost always there are rare cases in which persecution has proved successful-the result of free expression is such a mitigation of the condition attacked as to justify its use almost always, also, to prohibit free speech is to drive the agitation underground. What made Voltaire dangerous to France was not his election to the Academy, but his voyage to England.
Lenin was infinitely more dangerous to Czarist Russia in Switzerland than he would have been in the Duma. Freedom of speech, in fact, with the freedom of assembly therein implied, is at once the katharsis of discontent and the condition of necessary reform. A government can always learn more from the criticism of its opponents than from the eulogy of its supporters. To stifle that criticism is at least ultimately to prepare its own destruction.
Two related questions demand a note of explanation. Freedom of speech means freedom to express one’s view of general subjects. It means the absence of all powers of censorship in the government of the State. It does not mean any light to insinuate that Jones murdered his mother-in-law, or that Robinson, if justice were done, would be charged with embezzlement.
The statements for which I have the right to demand the absence of control are either general statements or personal statements of which the public import is immediate and direct. The right of free speech does not include the right to free scandalmongering. The only pain I have the right to inflict on individuals is a pain which the public welfare demands.
Obviously, if the use of that power is abused by me in the case of some individual, he ought to be able to seek his remedy in the courts He is as entitled to protect the interest of his personality in privacy as I am to invade it and the common sense of an average jury Ought, in such a case, to decide between us. This limitation, it should be added, does not extend to general questions such as the publication of blasphemies or of obscene literature.
These are too much matters of dubiety to make it possible to erect criteria of satisfactory judgment. A dramatic censorship prohibits Mrs. Warren’s Profession and a literary control excludes Boccacio from the public library. It is Wiser to trust the free exercise of the mind than to seek, ex cathedra, to put it in swaddling clothes. ,
I have argued that the right to freedom of speech carries with it the right to freedom of association and of public meeting. Each of these aspects deserves a separate word. In the modem world the individual cannot impress his views save by acting with his fellows. In the vast majority of cases, so to act entails no harm of any kind What of the cases where, as with the communists, the object of the association is the violent Overthrow of established order, or, as with the Salvation Army in its early days, freedom of assembly almost always involved a breach of the peace?
Neither of these rights is as secure to day as it seemed a decade ago. The American Statute-book, for, instance, is littered with statutes against a variety of political groups and there are even more political bodies which are forbidden to meet in public places. I submit that all such restrictions have no warrant in an adequate theory of the State.
Legally to prevent men from associating as communists does not prevent them item so associating, it serves only to make the forms of communist activity more difficult to discover. To prohibit a meeting on the ground that the peace may be disturbed is, in fact, to enthrone intimidation in the seat of power and it is noteworthy that the English law has sanctioned the notion that a peaceful demonstration does -not become illegal because other people are incited to disorder thereby.
The situation is, of course, different When an association aims at, and proposes to act towards, the overthrow of the State. The problems raised by this issue belong rather to the art than to the theory of politics. Every government must assume that its continued orderly existence is, within the ambit of such a system of rights as that here outlined, a desirable thing , every government is, within that ambit, entitled as a consequence, to take steps to protect itself. It is, therefore, entitled to destroy any group which seeks definitely and presently to usurp its authority.
But no government ought, in its purely executive aspect, to be the sole judge of Whether its action is right. It ought always to be compelled to the submission of proof and it ought always to be Compelled to the submission of proof under the fullest judicial safeguards. There is no more reason to suppose that the judgment of an executive will, in this aspect of the issue, be right than there is to suppose rightness in the judgment of any body of thoughtful citizens.
The test ought to be the ability of the executive to convince a court of law that there is the imminent danger of unlawful acts inherent in the continued existence of the association. There ought, that is to say, to be the provable danger of conduct and not merely the influence of conduct , from opinion. Anyone who studies the treason trials of 1794, or, even more decisively, the trials under the Espionage Act of 1917 in America, Will be convinced of the danger of allowing the executive an undue latitude in this regard. At a time of crisis judicial protection is a fairly slender safeguard, but it is at least a protection.
We do not want a clumsy minister to assume that a society of Tolstoyan anarchists is likely to attempt a new gunpowder plot. We do not desire to give license to those amazing citizens who see in every movement of unconventional thought a cover for the unscrupulous assassin. The State,clearly, has a right to self protection, but it should be m obvious danger before it is given leave to act.
These hypotheses, it is argued, are untenable in time of War or such similar crisis. It is obvious that they are untenable in a period of civil war when armed forces contend internally for the possession of the State. They are untenable for the sufficient reason that no one will observe them Violence. always makes the play of reason impossible and political philosophy cannot contribute hypotheses to a period of unreasonable. Revolution, in fact, means the suspension of any existing system of rights. Whatever authority comes to the exercise of power will, until it permits the renewed choice of governors by the citizens, build its acts upon the force it exerts, and not upon the rights it seeks to represent.
That has been evident in the history of every revolution in the modern time. It is, indeed, the hypothesis of revolution that confidence in the persuasive power of reason is misplaced. It would, then, be absurd to expect respect for rights under such circumstances. But an unsuccessful revolution raises the problems, than which none are more difficult or delicate, of the treatment of rebels by the government and of the acts of those who destroy the revolution.
Here, surely, different considerations emerge. The hypo, thesis of any government which successfully defends the. State against attack is the desirability of its system of rights. If, then, that system contain such elements of judicial protection as are contained, for example, in the English insistence upon the rule of law, it immediately becomes obvious that the character of governmental acts becomes subject to the control of that principle. Laws that have been broken then demand either punishment or indemnity and there are occasions on which an indemnity ought to be refused.
It is, above all, urgent that the superiority of the civil courts over the naked force of military law be emphasized in that aspect the Wolfe Tone case and the dicta of ex patriate O’Brien are of the essence of a State built upon the notion of right. For, otherwise, the citizen is powerless against the authority of the executive, unless the unlikely event occurs of the executive being overridden by the legislature and in the vast majority oi cases any such attempt at control will come too late.
An executive that is liable to continuous scrutiny by an independent minded judiciary is far more likely to observe the substance of rights than an executive which can, as under the Defense of the Realm Act in England during the European War, practically suspend the guarantees of the constitution. The experience of Hungary in the years since 1919 is evidence of the danger implicit in the absence of those guarantees.
The problem of freedom of speech in wartime raises quite different considerations. But it is first of all important to urge that the scale of operations makes no difference to the issue. The rights and duties of an English citizen in a period of struggle with a minor nation like the Boers in South Africa remain the same as his rights and duties in a struggle with a first class power like Germany.
His business, as I have insisted, is to contribute his instructed judgment to the public good. He must, that is to say, support the war if he think it right and Oppose it if he think it wrong. That the executive has embarked upon an adventure in which unity of opinion is a condition of strategic success does not alter the moral position that he occupies.
No executive has a right to move on its way, whatever the opinion of its citizens. Those opinions must be made known in order to affect its activities. To penalize them at a time when it is above all urgent to perform the task of citizenship is fatal to the moral foundations of the State. If a man think, like james Russell Lowell, that war is but an alias for murder, it is his duty to say so, however inconvenient be the time of his pronouncement.
Indeed, there is ground for the view that an inconvenient time is not unlikely to secure a closer attention to the substance of such opinions. And what can be urged on the other side. It is said that the utterance of hostile opinion hinders the successful prosecution of the war. But this, in fact, is to raise not one, but several, issues.
Does “hostile opinion” mean hostility to the inception of war, to the methods of its prosecution, to the end at which it aims P In the last European struggle the opponents of the War were divided into camps of each of the views. Is criticism of military or naval commanders an attack upon the prosecution of the war. If a statesman not in office thinks, for example, that the diplomatic policy of the executive will be attended with fatal results, must he confine himself to private representations, lest public avowal of his opinion hinder the national unity
If a man believes that peace by negotiation is preferable to victory in the field because of the human cost that victory entails, has he no obligation to his fellow-citizens who are paying that cost? It is, surely, evident that to limit opinion in periods of war to opinion which does not hinder its prosecution is first to give the executive a completely free hand, whatever the policy it pursues, and, second, to assume that while the armies are in the held an absolute moral moratorium is operative.
That is an impossible position. No one who has watched at all carefully the process of government in time of war can doubt that criticism was never more necessary. And to limit criticism is to stifle criticism. An executive that has a free hand will commit all the natural follies of dictatorship. It will assume the semi-divine character of its acts.
It will deprive the people of information upon which it can be judged. It will misrepresent the situation it confronts by that art of propaganda which enables it, as Mr. Cornford has said, to deceive its friends without deceiving its enemies. It will be obtuse to suggestion. It will regard inquiry as menace. It will be careless of truth. An executive in Wartime is, in fact, moralized only to the degree to which it is subject to critical examination in every aspect of its policy. And to penalize the critic is, if the struggle be severe, to poison the moral foundations of the State
Freedom of speech in wartime involves, therefore, the same rights as freedom of speech in peace. It involves them the more fully because a period of national trial is above all the period when it is the duty of citizens to bear their witness. Their activity will doubtless be unpopular the answer is, of course, that it is easy to be a martyr when authority refuses crucifixion. If the policy of a State in making war does not command the assent of its citizens in general, it has no right to make war.
If those hostile to it are a considerable proportion of its citizens, the policy is, at the least, a dubious one. If the number is small, there is no need to attempt suppression in the interest of success. The one way, in other words, to attain the right is by free discussion and a period of crisis, when the perception of right is difficult, only makes more fundamental the emphasis upon freedom.
The view here taken may perhaps be illustrated by reference to one of the decisive factors in the Peace of Versailles. It is usually agreed that its worst elements were the result of the Secret Treaties by which the Allies, exclusive of America, bound themselves before the latter’s entrance into the conflict. Nowhere, moreover, amongst them Was the desire for a just peace more widespread than in America nowhere also Was the discussion of peace aims more rigorously curtailed as a hindrance to the full prosecution of the war.
Had discussion of the peace been full and effective in those critical years, the liberal instincts of President Wilson might, when reinforced by the weight of informed opinion, have compelled at least their mitigation. The Secret Treaties were published in the American press after their issue in Petrograd in the second Revolution of 1917 full discussion would have revealed their inadequacies and enabled the President to counteract what of evil there was in their substance.
But the destruction of free opinion acted as a smoke-screen to conceal them, and Mr. Wilson did not know of their existence until he reached Paris. It was then too late to undo their consequences. Uncontrolled power, in other words, acts like a miasma to conceal that atmosphere in which truth is made manifest. Governments cannot do their duty because the means are wanting to inform them of their duty.
I have argued, that freedom of speech is a right that war does not mitigate. It is important, however, to discuss a Special case of this aspect of that right. If Belgium is invaded by a foreign army, the maintenance of free speech may be fatal to the continued existence of the State. Is, therefore, an invasion an exception to the general rule?
This, first, must be said, that, ultimately, war and democratic government are incompatible. The emotions to which conflict gives rise do not tolerate the presence of reason, and the more urgent the danger, the greater will be the demand for its suppression. Invasion is, the supreme example of this situation.
To discuss the origins of the war of 1914 while the German siege-guns hammered at the defenses of Liége would have been, in any case, an academic exercise. But Belgium in 1914 was blameless. France in 1870 was hardly less to blame than Bismarck himself. It was morally open to any Frenchman, if he conceived it to be his duty, to denounce the Chauvinism of Napoleon III. He had the right to press for « a rapid peace. He had the right, if he so wished, to denounce the premature negotiations of Jules Favre. He had the right to urge, like Gambetta, the duty of France to fight to exhaustion. In each case he was entitled to the full protection of the law in his effort.
In each case he was contributing, according to his lights, his instructed judgment to the public good. The more acute the danger to be confronted, the more urgent is it to build the view of government upon the largest available structure of opinion. The greater the heed that Opinion is given, the more likely is a government of civic support. For, ultimately, the most sure resource against foreign oppression is the zeal for the State of erect minded men and women.
I have spoken of the protection of the law. It is integral to the notion of a State built upon right that the citizen should be surrounded by full judicial safeguards. If he is accused, he should be entitled so to be tried that his innocence, if he be guiltless, has the full chance to emerge he cannot, therefore, be imprisoned without trial. If he disputes with another, he should have reasonable access to his judicial remedy.
No State can be free unless its courts are accessible and swift and certain. I shall discuss later certain forms that are essential to these conditions. Here I can only say that there is rarely a better index to the quality of the State life than the justice it offers to its citizens. It must be a justice without discrimination.
It must not be harder upon the poor than upon the rich. It should not denominate as mental disease in a resident of Kensington what it calls petty theft in a resident of Whitechapel. It must organize the fullest means of defense for those charged with the commission of crime. It must not set apart the acts of its officials into a category different from that of other men. It must itself answer in its own courts.
The sovereignty of the State must never mean that it is not amenable to law. A tort is none the less a tort because it is committed in the name of the sovereign. The judiciary must be able to deal with every complaint of offense without distinction of persons. The rule of law, in brief, is fundamental and the rule of law means that no person, and no office, however exalted, are exceptions to the rule of law.
There are two obvious corollaries to this doctrine. The first is the genuine independence of the judiciary. For what they do in the process of making and applying the law, they must be answerable to no one except their own consciences. They must not be removable because the executive dislikes their decisions. They must not be changeable because some judgment has offended the whim of the public. In no other fashion is it possible to secure the impartial administration of law.
I shall show later that attempts, as in America, to make judges responsive to popular Opinion by short term. appointments is a fatal error election, in any case, is not a sovereign specific for all members of a government and when rights are to be protected, the first thing essential is to multiply the safeguards of those who are to protect the assurance of rights.
The second corollary is that the union of the executive and the judicial function is inadmissible. Every citizen needs the amplest protection against the danger that the administrator will himself interpret the meaning of the law that he applies. The concentration of the power to interpret in the same hands as the power to administer has always, historically, been associated with tyranny.
It was the characteristic hall mark of oriental despotism. Even with a bureaucracy so generally impartial as that of British India it has not been free from grave objection. Where the subject to be administered is in its nature so complex as when, for example, an attempt is made to fix a fair gas-rate in a municipality those who adjudge fairness ought never, even if they are not the ordinary courts, to be those who usually administer the service. It may be necessary, given the intricate nature of the modern State, to create special courts for special subjects.
Whatever the solution, the separation and supremacy of the judicial power is integral to the maintenance of rights. For, otherwise, those who serve the State are governed by rules different from those under which their fellow citizens must live. They are made judges in their own cause and however hard they may strive to do justice they cannot hold squarely the balance between themselves and other men.
It remains to be discussed whether there is such a thing as a right to property. If property must be possessed in order that a man may be his best self, the existence of such a right is clear. But it is also obvious that such a right is immediately susceptible of stringent limitations. Rights, as I have argued, are the correlative of functions.
I have the right to property if what I own is, broadly speaking, important for the service I perform have the right to own if what I own can be shown to be related to the common welfare as a condition of its maintenance. I can never justly own directly as a result of the effort of others. I can never justly own if the result of my ownership is a power over the life of others.
For if the personality of other men is directly subject to changes of my will, if their rights as citizens, in other words, become the creatures of this single right of mine, obviously they will soon cease to have any personality at all. No man, in such a background, has the right to own property beyond that extent which enables the decent satisfaction of impulse. After that point, it is not his personality that he contributes to the community, but the personality of his property. He will be guided not by his interests, but by its interests.
He will act not to be his best self, but to win through his possessions the influence which maximizes their safety. Exceptions, of course, there are and the value of that munificence which Aristotle commended I deserves more scrutiny than it has received. But in a general system of rights the response to the acquisitive impulse is a response that, of necessity, does not require a level of which zest to acquire is the only limit. It id set in the background of the function served by the person of whom it is part.