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less lofty but more tenable ground. They insist that men are born with a sense of justice, just as they are born with a sense of the beautiful. Particular individuals may be wanting in either of these faculties; either may be obscured by ignorance or design; but that they exist to some extent with the vast majority of mankind, of whatever creed, race, or degree of civilization, is proved by all the facts of history.
It must be conceded that the system of utility is opposed to common ideas of duty. Duty is usually considered as something absolute, unchangeable, superior to man and to all human vicissitudes. On the other hand, utility is considered as something which varies according to time and place. It would often, if not generally, be impossible to prove that a particular act will on the whole be useful. It may be useful as far as we can see, be useful perhaps to the present generation, and injurious to the generations to come. The problem as to whether a given act will be useful on the whole, whether its advantages or disadvantages will on the whole preponderate, must not unfrequently be extremely complex. Men usually perform their duties without any such exhausting calculations of chances. They even conceive that the most sublime virtue is that which disdains all considerations of utility. Themistocles told the Athenian people that he had formed a plan which would be of the greatest advantage to Athens, but that it could not be carried out if made public. They directed him to communicate it to Aristides, who was requested to give them his opinion on the scheme. Having heard the proposal, Aristides returned to the assembly, and acquainted the Athenians "that nothing could be more advantageous than the project of Themistocles, nor anything more unjust," upon which the Athenians would hear no more of the matter.
What embarrasses the question is, that by extending the principle of utility to the whole community and to the whole race, it is made to cover the ground occupied by philanthropy, humanity and all the virtues. It may in this manner be proved that morality is useful. Utility and morals, when considered in their most extensive sense, certainly coincide. This is one of the harmonies of the moral world. But this does not prove that morals are nothing but rules of utility. They may be and are useful, and they may be nevertheless based in certain sentiments and tendencies of humanity which exist independently of considerations of utility. Architecture is useful, and yet it subserves other ends besides. It is possibly a case of the old sophism: Cum hoc, ergo propter hoc. The doctrine of Bentham, like that of fatalism, is capable of gaining a strong dominion over the mind, but it is received reluctantly, and is retained with difficulty, in the heart. Tried by a purely logical or intellectual standard, the question is beset with the greatest perplexity; and no one can dismiss it in a summary way, except in the case that he has thought but little about it. Probably most persons who read Bentham or Austin carefully will give to their system their assent; and the probability is that most of the same persons will in a short time insensibly relapse into their old pagan unbelief, and will do right, if they do right, with little or no regard to the doctrine of utility.
The System of Sociability as it has been called was regarded as the strictly orthodox system down to the last century, and commanded the suffrages of such men as Grotius, Puffendorf and Burlamaqui, all claiming to discover its origin in the treatise of Cicero, “De Legibus." It is based on the assumption that society is a universal fact in the history of humanity. It is a necessary fact. It is not pertinent to enquire how or why it exists; the truth is primary, and must be taken as a starting point in all questions concerning law. It is therefore from the conditions of each society as expressed in positive law or in customs that we are to deduce the rights of every member of the given community. We understand this to be stated as a practical test; for the writers on this subject have a great deal to say about morals, certain general principles of equity, or the divine will, to which the positive law ought, in all cases, to conform; but they do not attempt to define in any very precise manner what these principles are. It has been, indeed, objected that the advocates of this theory assert that all human rights flow from a state of society, and that, in the absence of society an individual has no rights properly speaking; but this is clearly a misapprehension. The authors referred to do, indeed, lay great stress on the social state as limiting and fixing rights, as a criterion of their existence; but they admit that, back of all positive laws, there exists the Divine will, by which the laws themselves are to be tried. Thus Cicero, in the work above cited, says:
“Let us then once more examine, before we come to the consideration of particular laws, what is the power and nature of law in general; but when we come to refer everything to it, we occasionally make mistakes from the employment of incorrect language, and show ourselves ignorant of the force of those terms which we ought to employ in the definition of law. This, then, as it appears to me, has been the decision of the wisest philosophers—that law was neither a thing contrived by the genius of man, nor established by any decree of the people, but a certain external principle, which governs the entire universe, wisely commanding what is right and prohibiting what is wrong. Therefore they called that aboriginal and supreme law the mind of God, enjoining or forbidding each separate thing in accordance with reason. On which account it is that this law, which the gods have bestowed on the human race, is so justly applauded. For it is the reason and mind of a wise Being, equally able to urge us to good and to deter us from evil. From our childhood we have learned to call such phrases as this: ‘That a man appeals to justice and goes to law,' and many similar expressions, law; but, nevertheless, we should understand that these, and other similar commandments and prohibitions, have sufficient power to lead us on to virtuous actions and to call us away from vicious ones. Which power is not only far more ancient than any existence of states and peoples, but is coeval with God himself, who beholds and governs both heaven and earth. For it is impossible that the Divine mind can exist in a state devoid of reason; and Divine reason must necessarily be possessed of a power to determine what is virtuous and what is vicious. For because it was nowhere written that one man should maintain the pass of a bridge against the enemy's whole army, and that he should order the bridge behind him to be cut down, are we therefore to imagine that the valiant Cocles did not perform this great exploit agreeably to the laws of nature and the dictates of true bravery? Again, though in the reign of Tarquin there was no written law concerning adultery, it does not follow therefore that Sextus Tarquinius did not offend against the eternal law when he committed a rape on Lucretia, daughter of Tricipitinus. For even then he had the light of reason, deduced from the nature of things, that incites to good actions, and dissuades from evil ones; and which does not begin for the first time to be a law when it is drawn up in writing, but from the first moment that it exists, and this evidence of moral obligation is coeternal with that of the Divine mind. Therefore the true and supreme law, whose commands and prohibitions are equally authoritative, is the right reason of the Sovereign Jupiter."
The System of Perfectibility of Leibnitz, may be expressed briefly. According to this theory man is placed in this world in order that he may labor in perfecting himself, through the development of all his faculties, according to their normal destiny. This labor is the essential principle of all his duties. Seeing that each individual should thus labor in perfecting himself, it follows that he has a right to whatever will aid him in the performance of this allotted duty, and he has a right to nothing more. This comes very near the doctrine of Hobbes, since it leaves it to be inferred that the only limitation on this right is the limitation imposed by physical circumstances, or by mankind at large; but it differs from the theory of Hobbes in this respect, that it establishes the right on a moral basis of action. It is evidently very defective, because it takes no notice of the infinity of indifferent acts, wherein one may do as he chooses, without any appreciable effect either on himself or on others. It is also clear that one may have a right to a thing, although he may fail to use it in perfecting himself according to any morat standard. From this theory there has grown another
in France, which claims the merit of originality, but scarcely deserves to have its claim allowed. Stripped of a vast amount of metaphysical reasoning, this French extension of the doctrine of Leibnitz seems to consist of a complete identification of rights and duties. A man has a right to accomplish his duty, and he has no other right. If he has a right to his good name, or to a chattel, it is only because, under the circumstances, he has a duty to perform in regard to it. The study of law is, therefore, confined to the study of duties; the word right is useless in the science; we should only distinguish duties as active and passive; the authors meaning thereby, acts and forbearances. One of these writers meets the objection that some acts are indifferent, both in a moral and utilitarian point of view, by asserting boldly that no action is indifferent, since every act, however trivial, must produce effects good or evil for some part of humanity. Thereby, however, he begs the question; for admitting what he says to be true, yet an act may still be morally indifferent, seeing that the actor cannot possibly perceive in the performance of an apparently indifferent act either good or evil. His action, therefore, will involve no violation of duty, although it may turn out, eventually, but probably never to his knowledge, that the action may, to some extent, have an injurious result to others or to himself.
The System of the Possibility of Co-existence of Kant is distinguished by the originality of genius of that celebrated thinker. In its essence it is brief and comprehensive. He placed the principle of right in personal liberty, each individual extending his activity around him, and thus conquering new forces, which he employs to attain the objects which he proposes in life. The limitation of this principle he placed in the possibility of the co-existence of a like liberty in others: if a man has a right to the free development of his activity, he knows that other men possess similar rights, and he should therefore greatly restrain the extension of his own activity, in order to render possible the co-existence of other men. All
The works alluded to are Principes du Droit, par Thiercelin, Paris 1862, and Conscience et Science du Devoir, par Oudot, Paris, 1856.