Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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DUTY

I.391.1

DUTY, Political. It was the fashion during the eighteenth century, and to a small extent at the beginning of the nineteenth, to speculate as to what might have been the ideas and feelings of man, if he had not lived in society. This kind of speculation resulted only in perfectly gratuitous hypotheses; and moreover it was founded entirely upon an erroneous idea. Man has never lived in such a state of isolation; he could not exist in such a state; he is made for society. He would be not only unhappy and powerless without society; he would be simply an inexplicable being. If there be one truth more than another which is the evident outcome of all there is in man of weakness and of strength, it is, that nature intended us to be, par excellence, sociable creatures.

I.391.2

—But what is the fundamental principle of society? Is it that we are necessary to each other? This amounts to inquiring whether a society based exclusively on the principle of interest be possible. Most assuredly if all men were intelligent and wise, and were never mistaken as to their true interests, society could exist without any other bond. But since nothing is so rare as a prudent mind, and a will master of itself, it is certain that, if we were reduced to a calculation of interests only, we should be in a continual state of war. What prevents this state of war, or, in other words, what makes society possible, is the existence of certain obligations by which we are bound to one another. Between the idea of society and that of obligation there is a relation of identity, because society and obligation suppose each other, and can not exist without each other.

I.391.3

—The reciprocal obligations by means of which society subsists may be conceived as resulting from force only, or from a social contract, or from justice. But upon reflection it is clear that they result only from justice. Shall we say that they have their foundation in force? Let us agree, in the first place, that if there were no justice it would be a very good thing for man to be subjected to force; for any society, even an oppressive and cruel society, is preferable, for man to the absence of society. But what would be the nature of this society based upon force? that is, on an unintelligent principle? It would be neither regular nor viable, for it is of the very essence of force to change its location. It may put itself in the service of order; but itself and by itself it can not produce order. The same may be said of the social contract; it is a hypothesis only admissible on condition that it be regulated and governed by a higher principle. For if this contract be founded upon interest only, no legislator would have foresight enough to draw it up, nor would any criminal be so simple as to submit to it. We therefore conclude that humanity is not intelligible without society, society without obligation, nor obligation without justice.

I.391.4

—It follows that justice is not of human creation. In fact, it can not be a result of society, since the latter itself is a result of justice. When we firmly and intelligently resolve to think for ourselves, and to reject all that our mind has received whose legitimacy and solidity we can not personally verify, we surely find many ideas which we can easily banish from our understanding as useless or dangerous guests; others, which seemed certain, become only probable or doubtful after examination; but there are some—and justice is one of them—which resist all our efforts to dislodge them, and which skepticism is powerless to overcome, however hard it may try. Not only are we unable to refute them, but we can not even remove them. Their empire over us is absolute. These ideas are of various kinds, for some of them relate to physics, like the idea of causality, without which we can not understand motion; others to logic, such as the principle of identity, without which we can not reason; others to morals, like the principle of justice. It is as impossible to believe that motion can originate without a cause to determine it, as that a man can commit murder to conceal a theft without becoming a criminal. We must admit this twofold impossibility, or else renounce reason altogether. Thus justice is doubly true, doubly necessary; first, that society may exist; secondly, that man may think. Justice makes us what we are—sociable, reasonable creatures.

I.391.5

—Justice governs in the world of liberty, just as the principle of causality governs in the world of fatality. Thus, from the standpoint of society, two things must be considered in free action; the being who produces the action or the agent, and the being who suffers it. I know, by the idea of justice I have, that it is permitted to no one to take my life, to curb me in my faculties, to embarrass me bodily or to deprive me of my property. The assertion of this peaceable possession of my life, my liberty and my property, is what I call my rights. I do not claim these rights by virtue of any contract, or by hereditary transmission; they are natural rights, and because natural, universal; for nature is the same to all, and we are all men by the same title. All men have necessarily an equal right to live, to act, and to possess property; my right exists only by reason of the right. Duty is a result of the universality and necessity of right, that is, it is an obligation we are all under to respect the rights of others, or rather the right in others. Right and duty are, therefore, two expressions for justice, according as we consider it in the actor or in the sufferer; in the sufferer, it is the right, the right not to be injured. In the agent it is duty, the duty not to injure others. Although opposed to each other, these two terms are correlative.

I.391.6

—It has hence been concluded, a little hastily perhaps, that duty is measured by rights, and vice versa. This doctrine is true in this sense only that we ought to respect all rights. But we must not conclude from this that duty is not of greater extent than right, nor that the latter is in any case a consequence of duty. On the contrary, it is certain that to respect all rights is only to accomplish a part of one's duty; which is equivalent to saying, in other words, that we have duties to fulfill, the fulfillment of which no one, except God, has the right to demand of us.

I.391.7

—This distinction is so important that in ignoring it we should render both civil and political society alike impossible. This distinction is misunderstood by two classes of men very unlike in origin, character and intentions, who are irreconcilable enemies, but who, notwithstanding, reach by opposite ways the same result; these are absolutists and communists. For the first, confounding politics with morals, give governments the right to compel their subjects to practice all duties; and the second, deceiving themselves as to the very nature of morals, deduce right from duty, and arm the egoism of each man against all the members of society taken individually, and against society as a whole. Thus, for example, the absolutists usurp the government of consciences, under pretext that every man is bound to work out his salvation, and the communists conclude from the duty of giving, which is one of the sanctions of the right of property, to the right of exaction, which is the negation of property. We have here represented each of these two doctrines by its most salient feature; but when we consult history impartially, we can not fail to observe that they are met with everywhere, that the right of confiscation is a logical consequence of absolute power, and intolerance a necessary consequence of communism.

I.391.8

—In well-organized society, that is to say, in all society which tends toward order through liberty, the civil law enacts only what is legally right, leaving to morals the care of enacting or prescribing what is duty. Why is this? 1. Because human law is made for purposes of protection, not to command. 2. Because the formula of universal law or legal right is, at the same time and by the same title, the formula of individual law or legal right, whereas the formula of duty can only be applied to a particular case by being transformed and by losing some of its logical comprehension.

I.391.9

—That human law is intended to protect and not to command, results from its very institution, for if all the precepts of the moral law were written in human law, and sanctioned by a penalty, there would be no room for liberty nor for right. Consequently, since legal right has three ends in view, namely, life, liberty and property, it is an implied contradiction that laws enacted to protect liberty should destroy it. In fact, the law can not protect my legal rights, without commanding others to respect them, and without commanding me, in turn, to respect those of others. But law can reach command only by the road of protection. Law declares legal rights, and has to do only with such rights. As a result of this, its commands are exclusively negative. It forbids injury, but does not command service.

I.391.10

—Suppose, for instance, that we are speaking of the right to live. Every man has the right to live; such is the formula of general and of individual law or legal right. Since every man has the right to live, human law ought to declare that right. This declaration is equivalent to a command and this command amounts only to this: No one has the right to put another's life in danger. Now, this formula of duty is the only one which results from the formula of legal right; and although the latter includes all legal rights, the formula of duty does not include the whole of duty. The idea of duty can not be conveyed altogether by any particular formula.

I.391.11

—From the foregoing it follows that there are two kinds of duty; negative duty, and positive duty. The former, called also, in the language of the schools, imperfect duty, is strictly measured by legal right; the latter does not correspond to a legal right which can be directly exacted by individuals. It is a duty of the higher kind, which can not depend upon human law, but only upon the moral, that is, divine law.

I.391.12

—Negative duty is ordinarily expressed by the following formula: "Do not unto others that which you would not have done unto yourself." And positive duty by this formula: "Do unto others as you would have others do unto you." These two formulæ have the merit of showing very well the opposition which exists between the two kinds of duty, of being very clear, easy to understand and easy to be remembered. The feeling of human fraternity with which they are stamped causes them strongly to appeal to our sympathies. We can not, however, look upon them as really scientific formulæ. They have the common fault of measuring legal right and duty by individual feeling; and moreover, the first formula goes beyond the measure of legal right, unless we insert into it the idea of law itself, the consequence of which would be to render it useless. In fact, what I ought to spare other men is not all that I fear myself, but rather all that I have a right to fear and to ward off. In reality, nothing supplies the place of the notion of right, and since right is a first principle, it can not be expressed by a comparison.

I.391.13

—Certain men of a selfish nature reduce all morality to the fulfillment of negative duties; others, less scrupulous and more generous, believe that the observance of positive duties may absolve them from the nonperformance of the negative. These are two equally fatal errors. Every man is always under an obligation to fulfill the whole of duty. It can only be said that he is not under obligations always in the same way to such fulfillment.

I.391.14

—Negative duty is more imperative than positive, because it is more definite, and more necessary. Positive duty is nobler than negative, because it supposes a more generous nature, and because it can not be enforced by law. In general, the performance of a duty is more meritorious in proportion as the obligation to fulfill it is less strict, and the sacrifice greater. But although there are degrees of obligation and of merit, obligation is always present. To content one's self by not injuring others simply, without doing them any good, is to degrade one's self voluntarily; for the worth and dignity of each one of us are measured by his service to mankind. On the other hand, doing good to others and failing in the performance of negative duties is to be a bad man with some virtues. The practice of virtue does not excuse any one from the observance of probity; probity without virtue suffices to make an honest man before the law and in the eyes of the world, but a useless man in the sight of God and of conscience.

I.391.15

—It is a question with writers on politics whether a constitution should simply declare rights, or whether it should also prescribe duty. No one can deny the existence of political duties; but we can and ought to deny that human law has for its object the prescribing of duties. All human law is a declaration of the principles of right and their application, and it can not be any more than this without attacking liberty. There are therefore, properly speaking, no political duties which can be included in a constitution or in a code. The right only, and the duty of each one to respect the right, can be written there, for this latter kind of duty is indissolubly connected with right, and is always understood, both as a sanction and as a consequence, to be part of the formula of right.

I.391.16

—But if human law can not prescribe political duties, or if it only prescribes them indirectly, the moral law, on the contrary, enjoins upon us very directly and very imperatively political duties of the positive kind—We owe duties to every man individually considered, and special duties to the different categories of persons into which the human species is divided with respect to ourselves. These categories are four in number: society, country, friends and benefactors, and family. Besides, we must distinguish between the duties we owe to the entire category, and those we owe to the individuals who compose it. For instance, I have more duties to perform to a fellow-countryman than to a foreigner; but I have many more duties to perform to my country than to the citizens taken individually whose fatherland is mine. Of course there are degrees in each category: country, province, city; father, brother, and the most distant relative. Morality is obliged to descend to all these details; we shall give here only the most universal rules.

I.391.17

—The duties we own each person individually and solely, in his quality of human being, are measured strictly by his rights, and consequently extend no further than the observance of the written law, when this latter is good. This is as much as to say that we have only negative duties to perform toward other men, taken individually. For instance, the matter of property, an individual man being supposed one whom we shall consider simply in the quality of a human being, making abstraction of the category to which he may belong—it is our duty not to rob him, but not our duty to give him anything. He has a right not to be injured in his property by us; he has no right to demand any sacrifice of ours. The duty to give exists only from the standpoint of the categories, and consequently creates no right to the advantage of an individual, considered simply as such. Thus I am obliged to give of my wealth to the poor, although no poor man individually can assert any claim whatever against my property. In order clearly to understand the special duties, which are at the same time positive duties, and which have relation to all four categories, we may picture them to ourselves as four concentric circles, with man in the centre of all: the largest circle represents society, the smallest the family. Here is the rule: our duties are both more numerous and less imperious, as they approach the centre. The words "less imperious" must not be left ambiguous; since every duty is imperious, the duty which outweighs another, when we are compelled to choose between duties, is considered the more imperious. For instance, my country can not exact from me so many sacrifices as my family; but when the interests of my country and my family conflict, and it is left to me to decide between them, I should sacrifice my family to my country. This is what is meant when it is said that my duties to my family are the more numerous, while those to my country are more imperious. If we take into consideration, not the entire category, but the persons who compose it, duties become both more numerous and more imperious as we approach the centre.

I.391.18

—This rule, which suffices for all other categories of duties, is less clear in the case of politics, and for this reason: the constitution of other societies or categories is natural; that of political society is human. In other words, there is the country, which is a natural society, and the government of the country, which is factitious. Every government tries to prove that it is the natural organization of the country, and consequently the legitimate one; and this pretension, if it were proven, would elevate political law to the dignity of natural law. But let us ask if any government is legitimate simply just because it exists. This is the same as asking whether right can be the result of a fact—which is absurd. There are, therefore, legitimate governments and others which are not legitimate, and consequently it may happen to be the duty of a citizen to disobey his government in order to be true to his country. Can morality determine the duty of a citizen who looks upon the government of his country as illegitimate and pernicious? Evidently it can; for it is contrary to common sense that human liberty should be without rules, in a question of such importance. We must distinguish two kinds of illegitimate governments, namely, those which injure only interests, and those which are hurtful to morality. It is never allowable to endure the latter; the former should be resisted only when two things are very certain: 1. That we are not blinded by our private interests to ignore the general good. 2. That we do not injure the general good more by the insurrection than the government we are trying to overturn does by its existence.

I.391.19

—As to legitimate governments, that is to say, those which are conformable to good morals and to the best interests of the country, the citizen owes them obedience and assistance. That he owes them obedience is a self-evident truth; that he owes them his assistance is not less evident, considering that the skaking of the strength of such a government puts order, and consequently justice, in peril. When this last duty is well understood in a country, it is seldom that it does not elevate a people to the first rank, whatever be its extent and wealth. But in a great many states, and especially in those in which the government takes charge of everything, the citizens resign themselves to a passive obedience, which degenerates into disobedience in certain cases. Thus, they do not do what the law commands before being required to do so; they do not lend a helping hand in the maintenance of order; unless, perchance, they hold office. They abstain from a declaration of their views, when it is necessary or useful; they refuse, for instance, to make known the full amount of what they own, which compels the state to replace exact and equitable contribution by uncertain taxation; in their enterprises they consult only their own interests—never those of the public. Such practices among the citizens make the government strong, and the nation weak; or rather, they invest the government with a mischievous power. Only duty can make men, and only men can make a people—a nation.

JULES SIMON.

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