Part 21

169. It is nothing then in the necessary organisation of the state, but rather some defect of that organisation in relation to its proper function of maintaining and reconciling rights, of giving scope to capacities, that leads to a conflict of apparent interests between one state and another. The wrong, therefore, which results to human society from conflicts between states cannot be condoned on the ground that it is a necessary incident of the existence of states. The wrong cannot be held to be lost in a higher right, which attaches to the maintenance of the state as the institution through which alone the freedom of man is realised. It is not the state, as such, but this or that particular state, which by no means fulfils its purpose, and might perhaps be swept away and superseded by another with advantage to the ends for which the true state exists, that needs to defend its interests by action injurious to those outside it. Hence there is no ground for holding that a state is justified in doing whatever its interests seem to require, irrespectively of effects on other men. If those effects are bad, as involving either a direct violation of personal rights or obstruction to the moral development of society anywhere in the world, then there is no ultimate justification for the political action that gives rise to them. The question can only be (as we have seen generally in regard to the wrong-doing of war), where in particular the blame lies. Whether there is any justification for a particular state, which in defence of its interests inflicts an injury on some portion of mankind; whether, e.g., the Germans are justified in holding Metz, on the supposition that their tenure of such a thoroughly French town necessarily thwarts in many ways the healthy activity of the inhabitants, or the English in carrying fire and sword into Afghanistan for the sake of acquiring a scientific frontier; this must depend (1) on the nature of the interests thus defended, (2) on the impossibility of otherwise defending them, (3) on the question how they came to be endangered. If they are interests of which the maintenance is essential to those ends as a means to which the state has its value, if the state which defends them has not itself been a joint-cause of their being endangered, and if they cannot be defended except at the cost of injury to some portion of mankind, then the state which defends them is clear of the guilt of that injury. But the guilt is removed from it only to be somewhere else, however wide its distribution may be. It may be doubted, however, whether the second question could ever be answered altogether in favour of a state which finds it necessary to protect its interests at the cost of inflicting an injury on mankind.

170. It will be said, perhaps, that these formal arguments in proof of the wrong-doing involved in war, and of the unjustifiability of the policy which nations constantly adopt in defence of their apparent interests, carry very little conviction; that a state is not an abstract complex of institutions for the maintenance of rights, but a nation, a people, possessing such institutions; that the nation has its passions which inevitably lead it to judge all questions of international right from its own point of view, and to consider its apparent national interests as justifying anything; that if it were otherwise, if the cosmopolitan point of view could be adopted by nations, patriotism would be at an end; that whether this be desirable or no, such an extinction of national passions is impossible; that while they continue, wars are as inevitable between nations as they would be between individuals, if individuals were living in what philosophers have imagined to be the state of nature, without recognition of a common superior; that nations in short are in the position of men judging their own causes, which it is admitted that no one can do impartially; and that this state of things cannot be altered without the establishment of a common constraining power, which would mean the extinction of the life of independent states,--a result as undesirable as it is unattainable. Projects of perpetual peace, to be logical, must be projects of all-embracing empire.

171. There is some cogency in language of this kind. It is true that when we speak of a state as a living agency, we mean, not an institution or complex of institutions, but a nation organised in a certain way; and that members of the nation in their corporate or associated action are animated by certain passions, arising out of their association, which, though not egoistic relatively to the individual subjects of them (for they are motives to self-sacrifice), may, in their influence on the dealings of one nation with another, have an effect analogous to that which egoistic passions, properly so called, have upon the dealings of individuals with each other. On the other hand, it must be remembered that the national passion, which in any good sense is simply the public spirit of the good citizen, may take, and every day is taking, directions which lead to no collision between one nation and another; (or, to say the same thing negatively, that it is utterly false to speak as if the desire for one's own nation to show more military strength than others were the only or the right form of patriotism); and that though a nation, with national feeling of its own, must everywhere underlie a state, properly so called, yet still, just so far as the perfect organisation of rights within each nation, which entitles it to be called a state, is attained, the occasions of conflict between nations disappear; and again, that by the same process, just so far as it is satisfactorily carried out, an organ of expression and action is established for each nation in dealing with other nations, which is not really liable to be influenced by the same egoistic passions in dealing with the government of another nation as embroil individuals with each other. The love of mankind, no doubt, needs to be particularised in order to have any power over life and action. Just as there can be no true friendship except towards this or that individual, so there can be no true public spirit which is not localised in some way. The man whose desire to serve his kind is not centred primarily in some home, radiating from it to a commune, a municipality, and a nation, presumably has no effectual desire to serve his kind at all. But there is no reason why this localised or nationalised philanthropy should take the form of a jealousy of other nations or a desire to fight them, personally or by proxy. Those in whom it is strongest are every day expressing it in good works which benefit their fellow-citizens without interfering with the men of other nations. Those who from time to time talk of the need of a great war to bring unselfish impulses into play, give us reason to suspect that they are too selfish themselves to recognise the unselfish activity that is going on all round them. Till all the methods have been exhausted by which nature can be brought into the service of man, till society is so organised that everyone's capacities have free scope for their development, there is no need to resort to war for a field in which patriotism may display itself.

172. In fact, just so far as states are thoroughly formed, the diversion of patriotism into the military channel tends to come to an end. It is a survival from a condition of things in which, as yet, the state, in the full sense, was not; in the sense, namely, that in each territory controlled by a single independent government, the rights of all persons, as founded on their capacities for contributing to a common good, are equally established by one system of law. If each separately governed territory were inhabited by a people so organised within itself, there would be nothing to lead to the association of the public spirit of the good citizen with military aggressiveness,--an association which belongs properly not to the πολιτεία [1], but to the δυναστεία. The Greek states, however complete might be the equality of their citizens among themselves, were all δυναστείαι in relation to some subject populations, and, as such, jealous of each other. The Peloponnesian war was eminently a war of rival δυναστείαι. And those habits and institutions and modes of feeling in Europe of the present day, which tend to international conflict, are either survivals from the δυναστείαι of the past, or arise out of the very incomplete manner in which, as yet, over most of Europe the πολιτεία has superseded the δυναστεία. Patriotism, in that special military sense in which it is distinguished from public spirit, is not the temper of the citizen dealing with fellow-citizens, or with men who are themselves citizens of their several states, but that of the follower of the feudal chief, or of the member of a privileged class conscious of a power, resting ultimately on force, over an inferior population, or of a nation holding empire over other nations.

[1] [Greek πολιτεία (politeia) = constitutional government, particularly a city-state, δυναστεία/ι (dunasteia/i) = narrow oligarchy/ies Tr]

173. Standing armies, again, though existing on a larger scale now than ever before, are not products of the civilisation of Europe, but of the predominance over that civilisation of the old δυναστείαι. The influences which have given rise to and keep up those armies essentially belong to a state of things in which mankind--even European mankind--is not yet thoroughly organised into political life. Roughly summarised, they are these: (1). The temporary confiscation by Napoleon to his own account of the products of the French Revolution, which thus, though founded on a true idea of a citizenship in which not the few only, but all men, should partake, for the time issued in a δυναστεία over the countries which most directly felt the effects of the revolution. (2). The consequent revival in dynastic forms, under the influence of antagonism to France, of national life in Germany. (3), The aspiration after national unity elsewhere in Europe,--a movement which must precede the organisation of states on a sound basis, and for the time readily yields itself to direction by a δυναστεία. (4). The existence, over all the Slavonic side of Europe, of populations which are only just beginning to make any approach to political life--the life of the πολιτεία, or 'civitas '--and still offer a tempting field to the ambition of rival δυναστείαι, Austrian, Russian, and Turkish (which, indeed, are by no means to be put on a level, but are alike as not resting on a basis of citizenship). (5). The tenure of a great Indian empire by England, which not only gives it a military character which would not belong to it simply as a state, but brings it into outward relations with the δυναστείαι just spoken of. This is no doubt a very incomplete account of the influences which have combined to 'turn Europe into a great camp' (a very exaggerated expression); but it may serve to show what a fuller account would show more clearly, that the military system of Europe is no necessary incident of the relations between independent states, but arises from the fact that the organisation of state-life, even with those peoples that have been brought under its influence at all, is still so incomplete.

174. The more complete that organisation becomes, the more the motives and occasions of international conflict tend to disappear, while the bonds of unity become stronger. The latter is the case, if for no other reason, yet for this; that the better organisation of the state means freer scope to the individual (not necessarily to do as he likes, e.g. in, the buying and selling of alcohol, but in such development of activity as is good on the whole). This again means free intercourse between members of one state and those of another, and in particular more freedom of trade. All restrictions on freedom of wholesome trade are really based on special class-interests, and must disappear with the realisation of that idea of individual right, founded on the capacity of every man for free contribution to social good, which is the true idea of the state. And as trade between members of different states becomes freer and more full, the sense of common interests between them, which war would infringe, becomes stronger. The bond of peace thus established is sometimes depreciated as a selfish one, but it need be no more selfish than that which keeps the peace between members of the same state, who have no acquaintance with each other. In one case as in the other it may be said that the individual tries to prevent a breach of the peace because he knows that he has more to gain than to lose by it. In the latter case, however, this account of the matter would be, to say the least, insufficient. The good citizen observes the law in letter and in spirit, not from any fear of consequences to himself if he did not, but from an idea of the mutual respect by men for each other's rights as that which should be an idea which has become habitual with him, and regulates his conduct without his asking airy questions about it. There was a time, however, when this idea only thus acted spontaneously in regulating a man's action towards his family or immediate neighbours or friends. Considerations of interest were the medium through which a wider range of persons came to be brought within its range. And thus, although considerations of an identity of interests, arising out of trade, may be the occasion of men's recognising in men of other nations those rights which war violates, there is no reason why, upon that occasion and through the familiarity which trade brings about, an idea of justice, as a relation which should subsist between all mankind as well as between members of the same state, may not come to act on men's minds as independently of all calculation of their several interests as does the idea which regulates the conduct of the good citizen.

175. If the necessary or impelling power of the idea of what is due from members of different nations to each other is weak, it must be observed on the other hand that the individual members of a nation have no such apparent interest in their government's dealing unfairly with another nation as one individual may have in getting the advantage of another. Thus, so far as this idea comes to form part of the habit of men's minds, there ceases to be anything in the passions of the people which a government represents to stimulate the government to that unfairness in dealing with another government, to which an individual might be moved by self-seeking passions in dealing with another individual, in the absence of an impartial authority having power over both. If at the same time the several governments are purely representative of the several peoples, as they should become with the due organisation of the state, and thus have no dynastic interests of their own in embroiling one nation with another, there seems to be no reason why they should not arrive at a passionless impartiality in dealing with each other, which would be beyond the reach of the individual in defending his own cause against another. At any rate, if no government can ever get rid of some bias in its own favour, there remains the possibility of mediation in cases of dispute by disinterested governments. With the abatement of national jealousies and the removal of those deeply-seated causes of war which, as we have seen, are connected with the deficient organisation of states, the dream of an international court with authority resting on the consent of independent states may come to be realised. Such a result may be very remote, but it is important to bear in mind that there is nothing in the intrinsic nature of a system of independent states incompatible with it, but that on the contrary every advance in the organisation of man kind into states in the sense explained is a step towards it.

L. _THE RIGHT OF THE STATE TO PUNISH._

176. (3) We come now to the third of the questions raised [l] in regard to the individual's right to free life, the question under what conditions that right may be forfeited; the question, in other words, of the state's right of punishment. The right (i.e. the power secured by social recognition) of free life in every man rests on the assumed capacity in every man of free action contributory to social good ('free' in the sense of determined by the idea of a common good. Animals may and do contribute to the good of man, but not thus 'freely'). This right on the part of associated men implies the right on their part to prevent such actions as interfere with the possibility of free action contributory to social good. This constitutes the right of punishment, the right so far to use force upon a person (to treat him as an animal or a thing) as may be necessary to save others from this interference.

[1] [Above, sec. 156. RLN]

177. Under what conditions a person needs to be thus dealt with, what particular actions on his part constitute such an interference, is a question which can only be answered when we have considered what powers in particular need to be secured to individuals or to officials in order to the possibility of free action of the kind described. Every such power is a right of which the violation, if intended as a violation of a right, requires a punishment, of which the kind and amount must depend on the relative importance of the right and of the extent to which its general exercise is threatened. Thus every theory of rights in detail must be followed by, or indeed implies, a corresponding theory of punishment in detail, a theory which considers what particular acts are punishable, and how they should be punished. The latter cannot precede the former: all that can be done here is further to consider what general rules of punishment are implied in the principle on which we hold all right of punishment to rest, and how far in the actual practice of punishment that principle has been realised.

178. It is commonly asked whether punishment according to its proper nature is retributive or preventive or reformatory. The true answer is that it is and should be all three. The statement, however, that the punishment of the criminal by the state is retributive, though true in a sense that will be explained directly, yet so readily lends itself to a misunderstanding, that it is perhaps best avoided. It is not true in the sense that in legal punishment as it should be there survives any element of private vengeance, of the desire on the part of the individual who has received a hurt from another to inflict an equivalent hurt in return. It is true that the beginning of punishment by the state first appears in the form of a regulation of private vengeance, but it is not therefore to be supposed that punishment by the state is in any way a continuation of private vengeance. It is the essence of the former to suppress and supersede the latter, but it only does so gradually, just as rights in actuality are only formed gradually. Private vengeance belongs to the state of things in which rights are not as yet actualised; in the sense that the powers which it is for the social good that a man should be allowed to exercise, are not yet secured to him by society. In proportion as they are actualised, the exercise of private vengeance must cease. A _right_ of private vengeance is an impossibility; for, just so far as the vengeance is private, the individual in executing it is exercising a power not derived from society nor regulated by reference to social good, and such a power is not a right. Hence the view commonly taken by writers of the seventeenth and eighteenth centuries implies an entire misconception of the nature of a right; the view, viz., that there first existed rights of self-defence and self-vindication on the part of individuals in a state of nature, and that these came to be devolved on a power representing all individuals, so that the state's right of using force against those men who use or threaten force against other men, is merely the sum or equivalent of the private rights which individuals would severally possess if there were no public equivalent for them. This is to suppose that to have been a right which in truth, under the supposed conditions, would merely have been animal impulse and power, and public right (which is a pleonasm, for all right is public) to have resulted from the combination of these animal impulses and powers: it is to suppose that from a state of things in which 'homo homini lupus' by mere combination of wolfish impulses, there could result the state of things in which 'homo homini deus.'

179. In a state of things in which private vengeance for hurt inflicted was the universal practice, there could be no rights at all. In the most primitive society in which rights can exist, it must at least within the limits of the family be suppressed by that authority of the family or its head which first constitutes rights. In such a society it is only on the members of another family that a man may retaliate at pleasure a wrong done to him, and then the vengeance is not, strictly speaking, taken by individual upon individual, though individuals may be severally the agent and patient of it, but by family upon family. Just because there is as yet no idea of a state independent of ties of birth, much less of a universal society from relation to which a man derives rights, there is no idea of rights attaching to him as a citizen or as a man, but only as a member of a family. That social right, which is at once a right of society over the individual, and a right which society communicates and secures to the individual, appears, so far, only as a control exercised by the family over its members in their dealings with each other, as an authorisation which it gives them in prosecuting their quarrels with members of another family, and at the same time to a certain extent as a limitation on the manner in which feuds between families may be carried on, a limitation generally dependent on some religious authority equally recognised by the families at feud.

180. From this state of things it is a long step to the régime of law in a duly constituted state. Under it the arm of the state alone is the organ through which force may be exercised on the individual; the individual is prohibited from averting violence by violence, except so far as is necessary for the immediate protection of life, and altogether from avenging wrong done to him, on the understanding that the society, of which he is an organ and from which he derives his rights, being injured in every injury to him, duly protects him against injury, and when it fails to prevent such injury from being done, inflicts such punishment on the offender as is necessary for future protection. But the process from the one state of things to the other, though a long one, consists in the further development of that social right [1] which properly speaking was the only right the individual ever had, and from the first, or ever since a permanent family tie existed, was present as a qualifying and restraining element in the exercise of private vengeance so far as that exercise partook at all in the nature of a right. The process is not a continuance of private vengeance under altered forms, but a gradual suppression of it by the fuller realisation of the higher principle which all along controlled it.