An Enquiry Concerning Political Justice

By William Godwin

CHAPTER VI

OF THE EXERCISE OF PRIVATE JUDGMENT

Foundation of virtue. -- Human actions regulated: 1. By the nature of things. -- 2. By positive institution. -- Tendency of the latter: 1. To excite virtue. -- Its equivocal character in this respect. -- 2. To inform the judgment. -- Its inaptitude for that purpose. -- Province of conscience considered. Tendency of an interference with that province. -- Recapitulation. -- Arguments in favour of positive institution: 1. The necessity of repelling private injustice. -- Objections: the uncertainty of evidence. -- The diversity of motives. -- The unsuitableness of the means of correction -- Either to impress new sentiments -- Or to strengthen old ones. -- Punishment for the sake of example considered. -- Urgency of the case. -- 2. Rebellion. -- 3. War. -- Objections. -- Reply.

Here however a distinction must be made. Justice, as it was defined in a preceding chapter, is coincident with utility. I am myself a part of the great whole, and my happiness is a part of that complex view of things by which justice is regulated. The hope of reward therefore and the fear of punishment, confined within certain strict limits, are motives that ought to have influence with my mind.

There are two descriptions of tendency that may belong to any action, the tendency which it possesses by the necessary and universal laws of existence, and the tendency which results from the positive interference of some intelligent being. The nature of happiness and misery, pleasure and pain, is independent of all positive institution: that is, it is immutably true that whatever tends to procure a balance of the former is to be desired, and whatever tends to procure a balance of the latter is to be rejected. In like manner the promulgation of virtue, truth and political justice must always be right. There is perhaps no action of a rational being that has not some tendency to promote these objects, and consequently that has not a moral character founded in the abstract nature of things.

{122} The tendency of positive institution is of two sorts, to furnish me with an additional motive to the practice of virtue or right, and to inform my understanding as to what actions are right and what actions are wrong. Much cannot be said in commendation of either of these tendencies.

First, positive institution may furnish me with an additional motive to the practice of virtue. I have an opportunity of contributing very essentially to the advantage of twenty individuals; they will be benefited, and no other persons will sustain a material injury. I ought to embrace this opportunity. Here let us suppose positive institution to interfere, and to annex some great personal reward to myself to the performance of my duty. This immediately changes the nature of the action. Before I preferred it for its intrinsic excellence. Now, so far as the positive institution operates, I prefer it, because some person has arbitrarily annexed to it a great weight of self-interest. But virtue, considered as the quality of an intelligent being, depends upon the disposition with which the action is accompanied. Under a positive institution then this very action, which is intrinsically virtuous, may, so far as relates to the agent, become vicious. The vicious man would before have neglected the advantage of these twenty individuals, because he would not bring a certain inconvenience or trouble upon himself. The same man with the same disposition will now promote their advantage, because his own welfare is concerned in it. Twenty, other things {123} equal, is twenty times better than one. He that is not governed by the moral arithmetic of the case, or who acts from a disposition directly at war with that arithmetic, is unjust. In other words, morality requires that we should be attentive only to the tendency which belongs to any action by the necessary and universal laws of existence. This is what is meant by the principle, 'that we should do good, regardless of the consequences;' and by that other, 'that we may not do evil, from the prospect of good to result from it.' The case would have been rendered still more glaring, if, instead of the welfare of twenty, we had supposed the welfare of millions to have been concerned. In reality, whether the disparity be great or small, the inference ought to be the same.

Secondly, positive institution may inform my understanding as to what actions are right and what actions are wrong. Here it is proper for us to reflect upon the terms understanding and information. Understanding, particularly as it is concerned with moral subjects, is the percipient of truth. This is its proper sphere. Information, so far as it is genuine, is a portion detached from the great body of truth. You inform me, 'that Euclid asserts the three angles of a plane triangle to be equal to two right angles.' Still I am unacquainted with the truth of this proposition. 'But Euclid has demonstrated it. His demonstration has existed for two thousand years, and during that term has proved satisfactory to every man by whom it has been understood {124} I am nevertheless uninformed. The knowledge of truth lies in the perceived agreement or disagreement of the terms of a proposition. So long as I am unacquainted with the middle term by means of which they may be compared, so long as they are incommensurate to my understanding, you may have furnished me with a principle from which I may reason truly to farther consequences, but as to the principle itself I may strictly be said to know nothing about it.

Every proposition has an intrinsic evidence of its own. Every consequence has premises from which it flows; and upon them, and not upon any thing else, its validity depends. If you could work a miracle to prove, 'that the three angles of a triangle were equal to two right angles,' I should still know, that the proposition was either true or false previously to the exhibition of that miracle and that there was no necessary connection between any one of its terms and the miracle exhibited. The miracle would take off my attention from the true question to a question altogether different, that of authority. By the authority adduced I might be prevailed on to yield an irregular assent to the proposition; but I could not properly be said to perceive its truth.

But this is not all. If it were, it might perhaps be regarded as a refinement foreign to the concerns of human life. Positive institutions do not content themselves with requiring my assent {125} to certain propositions, in consideration of the respectable testimony by which they are inforced. This would amount to no more, than advice flowing from a respectable quarter, which after all I might reject, if it did not accord with the mature judgment of my own understanding. But in the very nature of these institutions there is included a sanction, a motive either of punishment or reward to induce me to obedience.

It is commonly said, 'that positive institutions ought to leave me perfectly free in matters of conscience, but may properly interfere with my conduct in civil concerns.' But this distinction seems to have been very lightly taken up. What sort of moralist must he be, who makes no conscience of what passes in his intercourse with other men? Such a distinction proceeds upon the supposition, 'that it is of great consequence whether I bow to the east or the west: whether I call the object of my worship Jehovah or Alla; whether I pay a priest in a surplice or a black coat. These are points in which an honest man ought to be rigid and inflexible. But as to those other, whether he shall be a tyrant, a slave or a free citizen; whether he shall bind himself with multiplied oaths impossible to be performed, or be a rigid observer of truth; whether he shall swear allegiance to a king de jure or a king de facto, to the best or the worst of all possible governments; respecting these points he may safely commit his conscience to the keeping of the civil magistrate.' In reality there are perhaps no concerns of a rational being, over which {126} morality does not extend its province and respecting which he is not bound to a conscientious proceeding.

I am satisfied at present, that a certain conduct, suppose it be a rigid attention to the confidence of private conversation, is incumbent upon me. You tell me, 'there are certain cases of such peculiar emergency as to supersede this rule.' Perhaps I think there are not. If I admit your proposition, a wide field of enquiry is opened, respecting what cases do or do not deserve to be considered as exceptions. It is little likely that we should agree respecting all these cases. How then does the law treat me, for my conscientious discharge of what I conceive to be my duty? Because I will not turn informer (which, it may be, I think an infamous character) against my most valued friend, the law accuses me of misprision of treason, felony or murder, and perhaps hangs me. I believe a certain individual to be a confirmed villain, and a most dangerous member of society, and feel it to be my duty to warn others, perhaps the public, against the effect of his vices. Because I publish what I know to be true, the law convicts me of libel, scandals magnatum, and crimes of I know not what complicated denomination.

If the evil stopped here, it would be well. If I only suffered a certain calamity, suppose death, I could endure it. Death has hitherto been the common lot of men, and I expect at some time or other to submit to it. Human society must sooner or later {127} be deprived of its individual member, whether they be valuable or whether they be inconsiderable. But the punishment acts not only retrospectively upon me, but prospectively upon my contemporaries and countrymen. My neighbour entertains the same opinion respecting the conduct he ought to hold as I did. But the executioner of public justice interposes with a powerful argument, to convince him that he has mistaken the path of abstract rectitude.

What sort of converts will be produced by this unfeeling logic? 'I have deeply reflected,' suppose, 'upon the nature of virtue, and am convinced that a certain proceeding is incumbent upon me. But the hangman, supported by an act of parliament, assures me I am mistaken.' If I yield my opinion to his dictum, my action becomes modified, and my character too. An influence like this is inconsistent with all generous magnanimity of spirit, all ardent impartiality in the discovery of truth, and all inflexible perseverance in its assertion. Countries, exposed to the perpetual interference of decrees instead of arguments, exhibit within their boundaries the mere phantoms of men. We can never judge from an observation of their inhabitants what men would be, if they knew of no appeal from the tribunal of conscience, and if, whatever they thought, they dared to speak, and dared to act.

At present there will perhaps occur to the majority of readers {128} but few instances of laws, which may be supposed to interfere with the conscientious discharge of duty. A considerable number will occur in the course of the present enquiry. More would readily offer themselves to a patient research. Men are so successfully reduced to a common standard by the operation of positive law, that in most countries they are capable of little more than like parrots repeating each other. This uniformity is capable of being produced in two ways, by energy of mind and indefatigableness of enquiry, enabling a considerable number to penetrate with equal success into the recesses of truth and by pusillanimity of temper and a frigid indifference to right and wrong produced by the penalties which are suspended over such as shall disinterestedly enquire, and communicate and act upon the result of their enquiries. It is easy to perceive which of these is the cause of the uniformity that prevails in the present instance.

If there be any truth more unquestionable than the rest, it is, that every man is bound by the exertion of his faculties in the discovery of right, and to the carrying into effect all the right with which he is acquainted. It may be granted that an infallible standard, if it could be discovered, would be considerably beneficial. But this infallible standard itself would be of little use in human affairs, unless it had the property of reasoning as well as deciding, of enlightening the mind as well as constraining the body. If a man be in some cases obliged to prefer his own {129} judgment, he is in all cases obliged to consult that judgment before he can determine whether the matter in question be of the sort provided for or no. So that from this reasoning it ultimately appears, that no man is obliged to conform to any rule of conduct, farther than the rule is consistent wlth justice.

Such are the genuine principles of human society. Such would be the unconstrained concord of its members, in a state where every individual within the society, and every neighbour without, was capable of listening with sobriety to the dictates of reason. We shall not fail to be impressed with considerable regret, if, when we descend to the present mixed characters of mankind, we find ourselves obliged in any degree to depart from so simple and grand a principle. The universal exercise of private judgment is a doctrine so unspeakably beautiful, that the true politician will certainly resolve to interfere with it as sparingly and in as few instances as possible. Let us consider what are the emergencies that may be thought to demand an exception. They can only be briefly stated in this place, each of them requiring to be minutely examined in the subsequent stages of the enquiry.

In the first place then it seems necessary for some powerful arbitrator to interfere, where the proceedings of the individual threaten the most injurious consequences to his neighbours, and where the instant nature of the case will not accord with the {130} uncertain progress of argument and conviction addressed to the mind of the offender. A man, suppose, has committed murder, or, to make the case more aggravated, several murders; and, having thus far over-stepped all those boundaries of innocence and guilt which restrain the generality of men, it is to be presumed from analogy that he may be led to the commission of other murders. At first it may appear to be no great infringement upon the exercise of private judgment, to put it under some degree of restraint, when it leads to the commission of atrocious crimes. There are however certain difficulties in the case which are worthy to be considered.

First, as soon as we admit the propriety of a rule such as that above stated, our next concern will be with the evidence, which shall lead to the acquittal or conviction of the person accused. Now it is well known, that no principles of evidence have yet been laid down that are infallible. Human affairs universally proceed upon presumption and probability. An eye-witness must identify the person of the offender, and in this he may be mistaken. We must necessarily be contented with presumptive proofs of his intention; and often are or imagine ourselves to be obliged to admit presumptive evidence of the fact itself. The consequence is inevitable. And surely it is no trivial evil, to subject an innocent man eventually, to the public award and the established punishment annexed to the most atrocious crimes.

{131} Secondly, the same external action will admit of every possible shade of virtue or vice. One man shall commit murder, to remove a troublesome observer of his depraved dispositions, who will otherwise counteract and expose him to the world. A second, because he cannot bear the ingenuous sincerity with which he is told of his vices. A third, from his intolerable envy of superior merit. A fourth, because he knows his adversary meditates an act pregnant with extensive mischief, and he perceives no other mode by which its perpetration can be prevented. A fifth, in the actual defense of his father's life or his daughter's chastity. Each of these men, except perhaps the last, may act either from momentary impulse, or from any of the infinite shades and degrees of deliberation. Would you award one individual punishment to all these varieties of action? Can you pretend in each instance to ascertain the exact quantity of wrong, and to invent a species of corporal punishment or restraint, equivalent to each? Strictly speaking no two men were ever guilty of the same crime; but here comes in positive law with its Procrustes's bed, and levels all characters, and tramples upon all distinctions.

Thirdly, punishment is not the appropriate mode of correcting the errors of mankind. It will probably be admitted, that the only true end of punishment is correction. That question will be discussed in another part of the present enquiry. 'I have done something, which though wrong in itself, I believe to be right; or I have done something which I usually admit to be {132} wrong; but my conviction is not so clear and forcible, as to prevent my yielding to a powerful temptation.' There can be no doubt, that the proper way of conveying to my understanding a truth of which I am ignorant, or of impressing upon me a firmer persuasion of a truth with which I am acquainted, is by an appeal to my reason. Even an angry expostulation with me upon my conduct will but excite familiar passions in me, and cloud instead of illuminate my understanding. There is certainly a way of expressing truth, with such benevolence as to command attention, and such evidence as to inforce conviction in all cases whatever.

Punishment inevitably excites in the sufferer, and ought to excite, a sense of injustice. Let its purpose be to convince me of the truth of a proposition, which I at present believe to be false. It is not abstractedly considered of the nature of an argument, and therefore it cannot begin with producing conviction. Punishment is a specious name, but is in reality nothing more than force put upon one being by another who happens to be stronger. Now strength does not constitute justice, nor ought 'might,' according to a trite proverb, to 'overcome right.' The case of punishment, which we are now considering, is the case of you and I differing in opinion, and your telling me that you must be right, since you have a more brawny arm, or have applied your mind more to the acquiring skill in your weapons than I have.

{133} But let us suppose, 'that I am convinced of my error, but that my conviction is superficial and fluctuating, and the object you propose is to render it durable and profound.' Ought it to be thus durable and profound? There are no doubt arguments and reasons calculated to render it so. Is it in reality problematical and do you wish by the weight of your blows to make up for the deficiency of your logic? This can never be defended. An appeal to force must appear to both parties, in proportion to the soundness of their understanding, to be a confession of imbecility. He that has recourse to it, would have no occasion for this expedient, if he were sufficiently acquainted with the powers of that truth it is his office to communicate. If there be any man, who, in suffering punishment, is not conscious of injustice, he must have had his mind previously debased by slavery, and his sense of moral right and wrong blunted by a series of oppressions.

The case is not altered for the better, if I suffer punishment, not for my own correction, but for an example to others. Upon this supposition a new difficulty is introduced, respecting the propriety of one man's being subjected to pain, for the sake of improving the character and eradicating the vices of another. The suffering is here also involuntary. Now, though will cannot alter the nature of justice, it must be admitted that the voluntary sufferer has at least one advantage over the involuntary, in the conscious liberality of his purpose. He that suffers, not for his {134} own correction, but for the advantage of others stands, so far as relates to that suffering, in the situation of an innocent person. If the suffering had relation to him personally as a vicious or imperfect character, it must have relation to him in respect either to the past or the future. It cannot have relation to him as to the past, for that is concluded and beyond the reach of alteration or remedy. By the supposition it has not relation to him but to others as to the future.

It ought to be observed in this place, that by innocence I do not understand virtue. Innocence is a sort of neutral character, and stands in the mid way between good and harm. Undoubtedly it were better, that a person useless to society should be destroyed than a man of eminent worth, and a person likely to prove injurious than either. I say likely to prove injurious; for the fault already committed, being irrevocable, ought not to enter into the account, and we have nothing to do but with the probability of its repetition. It is in this sense that the sufferer stands upon a level with many of those persons, who are usually denominated innocent.

It must also be allowed, that there are cases in which it is proper that innocent men should suffer for the public good. But this is a question of a very delicate nature, and the severe moralist will be very reluctant to condemn that man to die for the benefit of others, who is desirous to live.

{135} As to every other circumstance in the case of him who is punished for an example to others, it remains precisely the same as when we supposed him to be punished for his own reformation. It is still an argument of the most exceptionable nature employed to correct the opinions of mankind. It is still a menace of violence made use of to persuade them of the truth or falshood of a proposition. It has little chance of making them wise, and can scarcely fail of making them timid, dissembling and corrupt.

Notwithstanding all these objections, it would be difficult to find a country respecting which we could say, that the inhabitants might with safety be dismissed from the operation of punishment. So mixed is human character, so wild are its excursions, so calamitous and detestable are the errors into which it occasionally falls, that something more than argument seems necessary for their suppression. Human beings are such tyros in the art of reasoning, that the wisest of us often prove impotent in our attempts, where an instant effect was most powerfully wanted. While I stand still to reason with the thief, the assassin or the oppressor, they hasten to new scenes of devastation, and with unsparing violence confound all the principles of human society. I should obtain little success by the abolition of punishment, unless I could at the same time abolish those causes that generate temptation and make punishment necessary. Meanwhile the arguments already adduced may be sufficient to shew that punishment {136} is always an evil, and to persuade us never to recur to it but from the most evident necessity.

The remaining cases in which it may seem requisite to have recourse to the general will of society, and to supersede the private judgment of individuals, are, when we are called upon to counteract the hostilities of an internal enemy, or to repel the attacks of a foreign invader. Here as in the former instance the evils that arise from usurpation upon private judgment are many and various. It is wrong that I should contribute in any mode to a proceeding, a war for example, that I believe to be unjust. Ought I to draw my sword, when the adversary appears to me to be employed in repelling a wanton aggression? The case seems not to be at all different, if I contribute my property, the produce it may be of my personal labour; though custom has reconciled us to the one rather than the other.

The consequences are a degradation of character and a relaxation of principle, in the person who is thus made the instrument of a transaction, which his judgment disapproves. In this case, as has been already stated generally, the human mind is compressed and unnerved, till it affords us scarcely the semblance of what it might otherwise have been. And, in addition to the general considerations in similar cases, it may be observed, that the frequent and obstinate wars which at present desolate the {137} human race would be nearly extirpated, if they were supported only by the voluntary contributions of those by whom their principle was approved.

The objection, which has hitherto been permitted practically to supersede these reasonings, is the difficulty of conducting an affair, in the success of which millions may be interested, upon so precarious a support as that of private judgment. The men, with whom we are usually concerned in human society, are of so mixed a character, and a self-love of the narrowest kind is so deeply rooted in many of them, that it seems nearly unavoidable upon the scheme of voluntary contribution, that the most generous would pay a very ample proportion, while the mean and avaricious, though they contributed nothing, would come in for their full share of the benefit. He that would reconcile a perfect freedom in this respect with the interest of the whole, ought to propose at the same time the means of extirpating selfishness and vice. How far such a proposal is feasible will come hereafter to be considered.