Lectures on the Principles of Political Obligation

Lectures

on the

Principles

of

Political Obligation

T.H. Green

Batoche Books

Kitchener
1999

Batoche Books

52 Eby Street South

Kitchener, Ontario

N2G 3L1

Canada

email: batoche@gto.net

ISBN: 1-55273-018-2

Contents

A. The Grounds of Political Obligation 5

B. Spinoza 22

C. Hobbes 32

D.Locke 39

E. Rousseau 49

F. Sovereignty and the General Will 60

G. Will, Not Force, is the Basis of the State 84

H. Has the Citizen Rights Against the State? 103

I. Private Rights, the Right to Life and Liberty 113

K. The Right of the State Over the

Individual in War 118

L. The Right of the State to Punish 135

M. The Right of the State to Promote Morality 157

N. The Right of the State in Regard to Property 161

O. The Right of the State in Regard to the Family .. 177

A. The Grounds of Political Obligation

1. 1 have entitled the subject of the course 'pohtical obligation.' I mean
that term to include both the obligation of the subject towards the sover-
eign, of the citizen towards the state, and the obligations of individuals
to each other as enforced by a political superior. My purpose is to con-
sider the moral function or object served by law, or by the system of
rights and obligations which the state enforces, and in so doing to dis-
cover the true ground or justification for obedience to law. My plan will
be (1) to state in outline what I consider the true function of law to be,
which is at the same time the true ground of our moral duty to obey it
(moral duty I always distinguish from legal obligation); (2) to examine
the chief doctrines of political obligation that have been current in mod-
ern Europe, and by criticising them to bring out more clearly the main
points of the truer doctrine; (3) to consider in detail the chief rights and
obligations enforced in civilised states, inquiring what is their justifica-
tion, and what is the ground for respecting them, on the principle stated.

2. In previous lectures I have explained what I understand moral
goodness to be, and how itis possible that there should be such a thing;
in other words, what are the conditions on the part of reason and will
which are implied in our being able to conceive moral goodness as an
object to be aimed at, and to give some partial reality to the conception.
I shall not go over the ground already traversed, but start from the point
at which we there arrived.

The highest moral goodness we found was an attribute of character
so far as it issued in acts done for the sake of their goodness, not for the
sake of any pleasure or any satisfaction of desire which they bring to the
agent. But it is impossible that an action should be done for the sake of
its goodness, unless it has been previously contemplated as good for

6/T.H. Green

some other reason than that which consists in its being done for the sake
of its goodness. It must have been done, or conceived as possible to be
done, and have been accounted good, irrespectively of its being done
from this which we ultimately come to regard as the highest motive. In
other words, a prior morality, founded upon interests which are other
than the pure interest in being good, and governed by rules of conduct
relative to a standard of goodness other than that which makes it depend
on this interest, is the condition of there coming to be the morality of a
character governed by interest in an ideal of goodness. Otherwise this
ideal would be an empty one; it would be impossible to say what the
good actions were, that were to be done for the sake of their goodness;
and the interest in it impossible, since it would be an interest without an
object.

3. When, however, morality of the latter kind has come to be
recognised as the highest, the only true, morality, the prior morality
needs to be criticised from the point of view thus gained. Those inter-
ests, other than the interest in being good, which form the motives on the
part of the individual on which it rests, will not indeed be rejected as of
no moral value; for no one can suppose that without them, or except as
regulating them, the pure interest in being good could determine con-
duct at all. But they will be estimated according to their value as leading
up to, or as capable of becoming elements in, a character in which this
interest is the governing principle. Again, those rules of conduct, ac-
cording to which the terms right and wrong, good and bad, are com-
monly applied, and which, as was just now said, are relative to a stan-
dard which is certainly not founded on the conception of good as con-
sisting in the character described, are not indeed to be rejected; for with-
out them there would be nothing to define the duties which the highest
character is prepared to do for their own sake, but have to be revised
according to a method which inquires into their rationale or justifica-
tion, as conditions of approximation to the highest character, in the sense
explained.

4. The criticism of moral interests — of the general motives which
determine moral conduct and regulate such moral approbation and dis-
approbation as is not based on a strict theory of moral good from the
point of view stated may be called by the term a 'theory of the moral
sentiments. ' The criticism of recognised rules of conduct will fall under
two heads according as these rules are embodied in 'positive law' (law
of which the observance is enforced on the individual by a political

Principles of Political Obligation/7

superior) or only form part of the 'law of opinion' — part of what the
individual feels to be expected of him by some person or persons to
whose expectations he ought to conform.

5. Moral interests are so greatly dependent on generally recognised
rules of conduct that the criticism of the latter should come first. The
law of opinion, again, in so many ways presupposes a social fabric
supported by 'positive' law, that we can only fairly take account of it
when we have considered the moral value and justifiability of the fabric
so supported. I propose therefore to begin our inquiry into the detail of
goodness into the particular kinds of conduct which the man wishing to
do good for the sake of its goodness is entitled to count good — by con-
sidering what is of permanent moral value in the institutions of civil life,
as established in Europe; in what way they have contributed and con-
tribute to the possibility of morality in the higher sense of the term, and
are justified, or have a moral claim upon our loyal conformity, in conse-
quence.

6. The condition of a moral life is the possession of will and reason.
Will is the capacity in a man of being determined to action by the idea of
a possible satisfaction of himself. An act of will is an action so deter-
mined. A state of will is the capacity as determined by the particular
objects in which the man seeks self-satisfaction; which becomes a char-
acter in so far as the self-satisfaction is habitually sought in objects of a
particular kind. Practical reason is the capacity in a man of conceiving
the perfection of his nature as an object to be attained by action. All
moral ideas have their origin in reason, i.e., in the idea of a possible self-
perfection to be attained by the moral agent. This does not mean that the
moral agent in every stage of his progress could state this idea to him-
self in an abstract form, any more than in every stage in the acquisition
of knowledge about nature a man can state to himself in an abstract
form the conception of the unity of nature which yet throughout condi-
tions the acquisition of his knowledge. Ideas do not first come into exist-
ence, or begin to operate, upon the formation of an abstract expression
for them. This expression is only arrived at upon analysis of a concrete
experience which they have rendered possible. Thus we only learn to
express the idea of self-perfection in that abstract form upon analysis of
an experience of self-improvement which we have gone through our-
selves, and which musthave been gone through by those with whom the
possession of language and an organisation of life (however elemen-
tary) connect us; but the same analysis shows that the idea must have

8/T.H. Green

been at work to make such experience possible. In this idea all particu-
lar moral ideas all ideas of particular forms of conduct as estimable
originate, though an abstract expression for the latter is arrived at much
sooner than such an expression for the idea in which they originate.
They arise as the individual's conception of the society on the well-
being of which his own depends, and of the constituents of that well-
being, becomes wider and fuller; and they are embodied in the laws,
institutions, and social expectation, which make conventional morality
This growth of conventional morality forms the 'moral progress of man-
kind. ' B ut it must be remembered that a merely conventional morality is
not a true morality; that it becomes so only in so far as upon habits
disciplined by conformity to conventional morality there supervenes an
intelligent interest in some of the objects contributory to human perfec-
tion, which that conventional morality subserves and in so far as that
interest becomes the dominant interest of the character.

7. The value then of the institutions of civil life lies in their opera-
tion as giving reality to these capacities, as enabling them to be really
exercised. The way in which they thus operate is what now has to be
exhibited. In their general effect, apart from particular aberrations, they
render it possible for a man to be freely determined by the idea of a
possible satisfaction of himself instead of being driven this way and that
by external forces thus giving reality to the capacity called will: and
they enable him to realise his reason, i.e., his idea of self-perfection, by
acting as a member of a social organisation in which each contributes to
the better-being of all the rest. So far as they do in fact thus operate they
are morally justified, and may be said to correspond to the 'law of na-
ture,' the jus naturae, according to the only sense in which that phrase
can be intelligibly used.

8. There has been much controversy as to what the jus naturae
(Naturrecht) really is, or whether there is such a thing at all. The con-
troversy, when it comes to be dealt with in English, is further embar-
rassed by the fact that we have no one term to represent the full meaning
of jus or Recht, as a system of correlative rights and obligations, actu-
ally enforced or that should be enforced by law. The essential questions
are: (1 ) whether we are entitled to distinguish the rights and obligations
which are anywhere actually enforced by law from rights and obliga-
tions which really exist though not enforced; and (2), if we are entitled
to do so, what is to be our criterion of rights and obligations which are
really valid, in distinction from those that are actually enforced.

Principles of Political Obligation/9

9. No one would seriously maintain that the system of rights and
obligations, as it is anywhere enforced by law — the jus orRecht of any
nation is all that it ought to be. Even Hobbes holds that a law, though it
cannot be unjust, may be pernicious. But there has been much objection
to the admission of natural rights and obligations. At any rate the phrase
is liable to misinterpretation. It may be taken to imply that rights and
obligations can exist in a 'state of nature' a state in which every indi-
vidual is free to do as he likes; that legal rights and obligations derive
their authority from a voluntary act by which individuals contracted
themselves out of this state; and that the individual retains from the state
of nature certain rights with which no legal obligations ought to con-
flict. Such a doctrine is generally admitted untenable; but it does not
follow from this that there is not a true and important sense in which
natural rights and obligations exist — the same sense as that in which
duties exist, though unfulfilled. There is a system of rights and obliga-
tions which should be maintained by law, whether it is so or not, and
which may properly be called 'natural,' not in the sense in which the
term 'natural' would imply that such a system ever did exist or could
exist independently of force exercised by society over individuals, but
'natural' because necessary to the end which it is the vocation of human
society to realise.

10. The jus naturae, thus understood, is at once distinguished from
the sphere of moral duty, and relative to it. It is distinguished from it
because admitting of enforcement by law. Moral duties do not admit of
being so enforced. The question sometimes put, whether moral duties
should be enforced by law, is really an unmeaning one, for they simply
cannot be enforced. They are duties to act, it is true, and an act can be
enforced: but duties to act from certain dispositions and with certain
motives, and these cannot be enforced. Nay, the enforcement of the out-
ward act, of which the moral character depends on a certain motive and
disposition, may often contribute to render that motive and disposition
impossible; and from this fact arises a limitation to the proper province
of law in enforcing acts, which will have to be further considered below.
When obligations then are spoken of in this connection, as part of the
jus naturae correlative to rights, they must always be understood not as
moral duties, not as relative to states of will, but as relative to outward
acts, of which the performance or omission can and should be enforced.
There is a moral duty to discharge such obligations, and to do so in a
certain spirit, but the obligation as such, as that with which law has to

10/T.H. Green

do or may properly have to do, is relative to an outward act merely, and
does not amount to a moral duty. There is a moral duty in regard to
obligations, but there can be no obligation in regard to moral duties.
Thus the jus naturae the system of rights and obligations, as it should
become no less than as it actually is maintained — is distinct from mo-
rality in the proper sense. But it is relative to it. This is implied in saying
that there is a moral duty in regard to actual obligations, as well as in
speaking of the system of rights and obligations as it should become. If
such language is justifiable, there must be a moral ground both for con-
forming to, and for seeking to develop or improve established Recht;
which can only lie in the moral end served by it.

1 1 . Thus we begin the ethical criticism of law with two principles : —
that nothing but external acts can be matter of 'obligation' (in the re-
stricted sense); and that in regard to that which can be made matter of
obligation, the question what should be made matter of obligation the
question how far rights and obligations, actually established by law,
correspond to the true jus naturae — must be considered with reference
to the moral end, as serving which alone law and the obligations im-
posed by it have their value.

12. Before proceeding, some remarks have to be made as to what is
implied in these principles, (a) Does the law, or is it possible that it
should, confine its view to external acts? What exactly is meant by an
external act? In the case of obligations which I am legally punishable
for disregarding, the law, in deciding whether punishment is or is not
due, takes account of much beside the external act; and this implies that
much beside external action is involved in legal obligation. In the case
where the person or property of another is damaged by me, the law does
not inquire merely whether the act of damage was done, and done by
means of my bodily members, but whether it was done intentionally;
and if not done with the direct intention of inflicting the damage , whether
the damage arose in a manner that might have been foreseen out of
something which I did intend to do: whether, again, if it was done quite
accidentally the accident was due to culpable negligence. This however
does not show that the law can enforce or prevent anything but external
action, but only that it is action which it seeks to enforce or prevent, for
without intention there is no action. We talk indeed of a man acting
against his will, but if this means acting against intention it is what it is
impossible to do. What I call an act done against my will is either (1 ) an
act done by someone else using my body through superior force, as a

Principles of Political Obligation/1 1

means, e.g. if another uses my hand to pull the trigger of a gun by which
someone is shot: in which case there is an act, but it is not mine; or (2)
a natural event in which my limbs are affected in a certain way which
causes certain results to another person, e.g., if the rolling of a ship
throws me against another person who is thus thrown into the water, in
which case there is no act at all; or (3) an act which I do under the
influence of some strong inducement, e.g. fear of death, but which is
contrary to some strong wish. In this case the act is mine, but mine
because I intend it; because it is not against my will as = intention. In
saying then that the proper, because the only possible, function of law is
to enforce performance of or abstinence from external actions, it is im-
plied that its function is to produce or prevent certain intentions, for
without intention on the part of someone there is no act.

13. But if act necessarily includes intention, what is the nature of
the restriction implied in calling it external? An external action is a
determination of will as exhibited in certain motions of the bodily mem-
bers which produce certain effects in the material world; not a determi-
nation of the will as arising from certain motives and a certain disposi-
tion. All that the law can do is to enjoin or forbid determinations of will
as exhibited in such motions, &c. It does indeed present a motive, for it
enforces its injunctions and prohibitions primarily by fear — by its threat
of certain consequences if its commands are disobeyed. This enforce-
ment is not an exercise of physical force in the strict sense, for in this
sense no force can produce an action since it cannot produce a determi-
nation of will; and the only way in which the law or its administrators
employ such force is not in the production but in the prevention of ac-
tion (as when a criminal is locked up or the police prevent mischievous
persons from assaulting us or breaking into our houses). But though, in
enforcing its commands by threats, the law is presenting a motive, and
thus, according to our distinction, affecting action on its inner side, it
does this solely for the sake of the external act. It does not regard the
relation of the act to the motive fear as of any intrinsic importance. If
the action is performed without this motive ever coming into play under
the influence of what the moralist counts higher motives, the purpose of
the law is equally satisfied. Indeed, it is always understood that its pur-
pose is most thoroughly served when the threat of pains and penalties
has ceased to be necessary, and the obligations correlative to the rights
of individuals and of societies are fulfilled from other motives. Its busi-
ness is to maintain certain conditions of life — to see that certain actions

12/T.H. Green

are done which are necessary to the maintenance of those conditions,
others omitted which would interfere with them. It has nothing to do
with the motive of the actions or omissions, on which, however, the
moral value of them depends.

14. It appears, then, that legal obligations — obligations which can
possibly form the subject of positive law — can only be obligations to do
or abstain from certain acts, not duties of acting from certain motives,
or with a certain disposition. It is not a question whether the law should
or should not oblige to anything but performance of outward acts. It
simply cannot oblige to anything else, because the only means at its
command for obtaining the fulfilment of obligations are (1) threats of
pain, and offers of reward, by means of which it is possible indeed to
secure the general performance of certain acts, but not their perfor-
mance from the motive even of fear of the pain threatened or hope of the
reward offered, much less from any higher motive; (2) the employment
of physical force, (a) in restraining men disposed to violate obligations,
(b) in forcibly applying the labour or the property of those who violate
obligations to make good the breach, so far as is possible; (as, e.g.,
when the magistrate forestalls part of a man's wages to provide for a
wife whom he has deserted, or when the property of a debtor is seized
for the benefit of his creditors.)

15. Only outward acts, then, can be matter of legal obligation; but
what sort of outward acts should be matter of legal obligation? The
answer to this question arises out of the above consideration of the means
which law employs to obtain fulfilment of obligations, combined with
the view of law as relative to a moral end, i.e., the formation of a society
of persons acting from a certain disposition, from interest in the society
as such. Those acts should be matter of legal injunction or prohibition
of which the performance or omission, irrespectively of the motive from
which it proceeds, is so necessary to the existence of a society in which
the moral end stated can be realised that it is better for them to be done
or omitted from that unworthy motive which consists in fear or hope of
legal consequences than not to be done at all.

16. We distinguish, then, the system of rights actually maintained
and obligations actually enforced by legal sanctions (Recht or jus) from
the system of relations and obligations which should be maintained by
such sanctions (Naturrecht); and we hold that those actions or omis-
sions should be made obligations which, when made obligations, serve
a certain moral end; that this end is the ground or justification or ratio-

Principles of Political Obligation/13

nale of legal obligation; and that thus we obtain a general rule, of both
positive and negative application, in regard to the proper matter or con-
tent of legal obligation. For since the end consists in action proceeding
from a certain disposition, and since action done from apprehension of
legal consequences does not proceed from that disposition, no action
should be enjoined or prohibited by law of which the injunction or pro-
hibition interferes with actions proceeding from that disposition, and
every action should be so enjoined of which the performance is found to
produce conditions favourable to action proceeding from that disposi-
tion, and of which the legal injunction does not interfere with such ac-
tion.

17. Does this general rule give any real guidance in the difficulties
which practically arise in regard to the province of law as to what should
be required by law, and what left to the inclination of individuals? What
cases are there or have there been of enactments which on this principle
we can pronounce wrong? Have attempts ever been made by law to
enforce acts as virtuous which lose their virtue when done under fear of
legal penalties? It would be difficult, no doubt, to find instances of at-
tempts to enforce by law actions of which we should say that the value
lies in the disposition from which they are done actions, e.g., of disinter-
ested kindness — because the clear conception of virtue as depending not
on outward results but on dispositions is but slowly arrived at, and has
never been reflected in law. But without any strictly moral object at all,
laws have been made which check the development of the moral dispo-
sition. This has been done (a) by legal requirements of religious obser-
vance and profession of belief, which have tended to vitiate the religious
source of morality; (b) by prohibitions and restraints, unnecessary or
which have ceased to be necessary, for maintaining the social conditions
of the moral life, and which interfere with the growth of self-reliance,
with the formation of a manly conscience and sense of moral dignity in
short, with the moral autonomy which is the condition of the highest
goodness; (c) by legal institutions which take away the occasion for the
exercise of certain moral virtues (e.g., the Poor-law, which takes away
the occasion for the exercise of parental forethought, filial reverence,
and neighbourly kindness).

1 8. Laws of this kind have often been objected to on the strength of
a one-sided view of the function of Law; the view, viz., that its only
business is to prevent interference with the liberty of the individual. And
this view has gained undue favour on account of the real reforms to

14/T.H. Green

which it has led. The laws which it has helped to get rid of were really
mischievous, but mischievous for further reasons than those conceived
of by the supporters of this theory. Having done its work, the theory
now tends to become obstructive because in fact advancing civilisation
brings with it more and more interference with the liberty of the indi-
vidual to do as he likes, and this theory affords a reason for resisting all
positive reforms — all reforms which involve an action of the state in the
way of promoting conditions favourable to moral life. It is one thing to
say that the state in promoting these conditions must take care not to
defeat its true end by narrowing the region within which the spontaneity
and disinterestedness of true morality can have play; another thing to
say that it has no moral end to serve at all, and that it goes beyond its
province when it seeks to do more than secure the individual from vio-
lent interference by other individuals. The true ground of objection to
'paternal government' is not that it violates the 'laissez faire' principle
and conceives that its office is to make people good, to promote moral-
ity, but that it rests on a misconception of morality. The real function of
government being to maintain conditions of life in which morality shall
be possible, and morality consisting in the disinterested performance of
self-imposed duties, 'paternal government' does its best to make it im-
possible by narrowing the room for the self-imposition of duties and for
the play of disinterested motives.

19. The question before us, then, is: in what ways and how far do
the main obligations enforced and rights maintained by law in all civilised
societies contribute to the moral end described — to establish those con-
ditions of life in which a true, i.e., a disinterested or unselfish, morality
shall be possible? The answer to this question will be a theory of the jus
naturae; i.e., it will explain how far positive law is what it should be,
and what is the ground of the duty to obey it; in other words, of political
obligation. There are two things from which such a theory must be dis-
tinguished.

It is not an inquiry into the process by which actual law came to be
what it is; nor is it an inquiry how far actual law corresponds to and is
derived from the exercise of certain original or natural rights. It is not
the former, because the process by which the law of any nation and the
law in which civilised nations agree has come to be what it is, has not
been determined by reference to that end to which we hold that law
ought to be directed and by reference to which we criticise it. That is to
say, the process has not been determined by any such conscious refer-

Principles of Political Obligation/15

ence on the part of the agents in the process. No doubt, a desire for
social good as distinct from private pleasure, for what is good on the
whole as distinct from what is good for the moment, has been a neces-
sary condition of it, but (1), as an agent in the development of law, this
has not reached the form of a conception of moral good according to
that definition of it by which the value of law is to be estimated; and (2)
in bringing law to its present state it has been indistinguishably blended
with purely selfish passions and with the simple struggle for existence.

20. A true theory of jus naturae, a rationale of law or ideal of what
it should be, is not to be had by inquiring how far actual law corre-
sponds to, and is derived from, the exercise of certain original or natural
rights, if that is taken to mean that we know, or can ascertain, what
rights are natural on grounds distinct from those on which we determine
what laws are justifiable, and that then we can proceed to ascertain
what laws are justifiable by deduction from such rights. 'Natural rights,'
so far as there are such things, are themselves relative to the moral end
to which perfect law is relative. A law is not good because it enforces
'natural rights,' but because it contributes to the realisation of a certain
end. We only discover what rights are natural by considering what pow-
ers must be secured to a man in order to the attainment of this end.
These powers a perfect law will secure to their full extent. Thus the
consideration of what rights are 'natural' (in the only legitimate sense)
and the consideration what laws are justifiable form one and the same
process, each presupposing a conception of the moral vocation of men.

21. The doctrine here asserted, that all rights are relative to moral
ends or duties, must not be confused with the ordinary statement that
every right implies a duty, or that rights and duties are correlative. This
of course is true in the sense that possession of a right by any person
both implies an obligation on the part of someone else, and is condi-
tional upon the recognition of certain obligations on the part of the per-
son possessing it. But what is meant is something different, viz. that the
claim or right of the individual to have certain powers secured to him by
society, and the counter-claim of society to exercise certain powers over
the individual, alike rest on the fact that these powers are necessary to
the fulfilment of his vocation as a moral being, to an effectual self-
devotion to the work of developing the perfect character in himself and
others.

22. This, however, is not the ground on which the claim in question
has generally been asserted. Apart from the utilitarian theory, which

16/T.H. Green

first began to be applied politically by Hume, the ordinary way of justi-
fying the civil rights of individuals, i.e., the powers secured to them by
law as against each other, as well as the rights of the state against indi-
viduals, i.e., the powers which, with the general approval of society, it
exercises against them, has been to deduce them from certain supposed
prior rights, called natural rights. In the exercise of these natural rights,
it has been supposed, men with a view to their general interest estab-
lished political society. From that establishment is derived both the sys-
tem of rights and obligations maintained by law as between man and
man, and the right of the state to the submission of its subjects. If the
question then is raised, why I ought to respect the legal rights of my
neighbours, to pay taxes, or have my children vaccinated, serve in the
army if the state requires it, and generally submit to the law, the answer
according to this theory will be that if I fail to do so I shall directly or
indirectly be violating the natural rights of other men; directly in those
cases where the legal rights of my neighbours are also natural rights, as
they very well may be (e.g. rights of liberty or personal safety); indi-
rectly where this is not the case, because, although the rights of the state
itself are not natural and many rights exercised by individuals would
not only not be secured but would not exist at all but for legal enact-
ment, yet the state itself results from a covenant which originally in the
exercise of their natural rights men made with each other, and to which
all born under the state and sharing the advantages derived from it must
be considered parties. There is a natural right, therefore, on the part of
each member of a state to have this compact observed, with a corre-
sponding obligation to observe it; and this natural right of all is violated
by any individual who refuses to obey the law of the state or to respect
the rights, not in themselves natural, which the state confers on indi-
viduals.

23. This, on the whole, was the form in which the ground of politi-
cal obligation, the justification of established rights, was presented
throughout the seventeenth century, and in the eighteenth till the rise of
the 'utilitarian' theory of obligation. Special adaptations of it were made
by Hobbes and others. In Hobbes, perhaps (of whom more later), may
be found an effort to fit an anticipation of the utilitarian theory of politi-
cal obligation into the received theory which traced political obligation,
by means of the supposition of a primitive contract, to an origin in natu-
ral right. But in him as much as anyone the language and framework of
the theory of compact is retained, even if an alien doctrine may be read

Principles of Political Obligation/17

between the lines. Of the utilitarian theory of political obligation more
shall be said later. It may be presented in a form in which it would
scarcely be distinguishable from the doctrine just now stated, the doc-
trine, viz., that the ground of political obligation, the reason why certain
powers should be recognised as belonging to the state and certain other
powers as secured by the state to individuals, lies in the fact that these
powers are necessary to the fulfilment of man's vocation as a moral
being, to an effectual self-devotion to the work of developing the perfect
character in himself and others. Utilitarianism proper, however,
recognises no vocation of man but the attainment of pleasure and avoid-
ance of pain. The only reason why civil rights should be respected — the
only justification of them — according to it, would be that more pleasure
is attained or pain avoided by the general respect for them; the ground
of our consciousness that we ought to respect them, in other words their
ultimate sanction, is the fear of what the consequences would be if we
did not. This theory and that which I deem true have one negative point
in common. They do not seek the ground of actual rights in a prior
natural right, but in an end to which the maintenance of the rights con-
tributes. They avoid the mistake of identifying the inquiry into the ulti-
mate justifiability of actual rights with the question whether there is a
prior right to the possession of them. The right to the possession of
them, if properly so called, would not be a mere power, but a power
recognised by a society as one which should exist. This recognition of a
power, in some way or other, as that which should be, is always neces-
sary to render it a right. Therefore when we had shown that the rights
exercised in political society were derived from prior 'natural' rights, a
question would still remain as to the ground of those natural rights. We
should have to ask why certain powers were recognised as powers which
should be exercised, and thus became these natural rights.

24. Thus, though it may be possible and useful to show how the
more seemingly artificial rights are derived from rights more simple and
elementary, how the rights established by law in a political society are
derived from rights that may be called natural, not in the sense of being
prior to society but in the sense of being prior to the existence of a
society governed by written law or a recognised sovereign, still such
derivation is no justification of them. It is no answer to the question why
they should be respected; because this question remains to be asked in
regard to the most primitive rights themselves. Political or civil rights,
then, are not to be explained by derivation from natural rights, but in

18/T.H. Green

regard to both political and natural rights, in any sense in which there
can be truly said to be natural rights, the question has to be asked, how
it is that certain powers are recognised by men in their intercourse with
each other as powers that should be exercised, or of which the possible
exercise should be secured.

25. I have tried to show in lectures on morals that the conception
expressed by the 'should be' is not identical with the conception of a
right possessed by some man or men, but one from which the latter
conception is derived. It is, or implies on the part of whoever is capable
of it, the conception of an ideal, unattained condition of himself, as an
absolute end. Without this conception the recognition of a power as a
right would be impossible. A power on the part of anyone is so recognised
by others, as one which should be exercised, when these others regard it
as in some way a means to that ideal good of themselves which they
alike conceive: and the possessor of the power comes to regard it as a
right through consciousness of its being thus recognised as contributory
to a good in which he too is interested. No one therefore can have a right
except (1) as a member of a society, and (2) of a society in which some
common good is recognised by the members of the society as their own
ideal good, as that which should be for each of them. The capacity for
being determined by a good so recognised is what constitutes personal-
ity in the ethical sense; and for this reason there is truth in saying that
only among persons, in the ethical sense, can there come to be rights;
(which is quite compatible with the fact that the logical disentanglement
of the conception of rights precedes that of the conception of the legal
person: and that the conception of the moral person; in its abstract and
logical form, is not arrived at till after that of the legal person).

Conversely, everyone capable of being determined by the concep-
tion of a common good as his own ideal good, as that which uncondi-
tionally should be (of being in that sense an end to himself), in other
words, every moral person, is capable of rights; i.e., of bearing his part
in a society in which the free exercise of his powers is secured to each
member through the recognition by each of the others as entitled to the
same freedom with himself. To say that he is capable of rights, is to say
that he ought to have them, in that sense of 'ought' in which it expresses
the relation of man to an end conceived as absolutely good, to an end
which, whether desired or no, is conceived as intrinsically desirable.
The moral capacity implies a consciousness on the part of the subject of
the capacity that its realisation is an end desirable in itself, and rights

Principles of Political Obligation/19

are the condition of realising it. Only through the possession of rights
can the power of the individual freely to make a common good his own
have reality given to it. Rights are what may be called the negative
realisation of this power. That is, they realise it in the sense of providing
for its free exercise, of securing the treatment of one man by another as
equally free with himself, but they do not realise it positively, because
their possession does not imply that in any active way the individual
makes a common good his own. The possession of them, however, is the
condition of this positive realisation of the moral capacity, and they
ought to be possessed because this end (in the sense explained) ought to
be attained.

26. Hence on the part of every person ('person' in the moral sense
explained) the claim, more or less articulate and reflected on, to rights
on his own part is co-ordinate with his recognition of rights on the part
of others. The capacity to conceive a common good as one's own and to
regulate the exercise of one's powers by reference to a good which oth-
ers recognise, carries with it the consciousness that powers should be so
exercised; which means that there should be rights, that powers should
be regulated by mutual recognition. There ought to be rights, because
the moral personality — the capacity on the part of an individual for
making a common good his own — ought to be developed; and it is de-
veloped through rights; i.e., through the recognition by members of a
society of powers in each other contributory to a common good and the
regulation of those powers by that recognition.

27. In saying that only among 'persons' can there come to be rights,
and that every 'person' should have rights, I have been careful to ex-
plain that I use 'person' in the moral not merely in the legal sense. In
dealing, then, with such phrases as 'jura personarum, and, personal
rights,' we must keep in view the difference between the legal and ethi-
cal sense of the proposition that all rights are personal, or subsist as
between persons. In the legal sense, so far as it is true — and it is so only
if 'person' is used in the sense of Roman law — it is an identical propo-
sition. A person means a subject of rights and nothing more. Legal per-
sonality is derived from the possession of right, not vice versa. Like
other identical propositions, its use is to bring out and emphasise in the
predicate what is included in the understood connotation of the subject;
to remind us that when we speak of rights we imply the existence of
parties, in English phraseology, capable of suing and being sued. I n the
ethical sense, it means that rights are derived from the possession of

20/T.H. Green

personality as = a rational will (or the capacity which man possesses of
being determined to action by the conception of such a perfection of his
being as involves the perfection of a society in which he lives), in the
sense (a) that only among beings possessed of rational will can there
come to be rights, (b) that they fulfil their idea, or are justifiable, or
such rights as should be rights, only as contributing to realisation of
rational will. It is important to bear this distinction in mind in order that
the proposition in its ethical sense, which can stand on its own merits,
may not derive apparent confirmation from a juristic truism.

28. The moral idea of personality is constantly tending to affect the
legal conception of the relation between rights and persons. Thus the
jura personarum, which properly = either rights arising out of 'status,'
or rights which not only (like all rights) reside in someone having a legal
status and are available against others having a legal status, but are
exercised over, or in respect of, someone possessed of such status (e.g.
a wife or a free servant) come to be understood as rights derived from
the human personality or belonging to man as man. It is with some such
meaning that English writers on law speak of rights to life and liberty as
personal rights. The expression might seem pleonastic, since no right
can exist except as belonging to a person in the legal sense. They do not
use the phrase either pleonastically or in the sense of the Roman law-
yers' jura personarum above, but in the sense that these rights are im-
mediately derived from, or necessarily attach to, the human personality
in whatever that personality is supposed to consist. There is no doubt,
however, that historically the conception of the moral person, in any
abstract form, is not arrived at till after that of the legal person has been
thus disentangled and formulated; and further that the abstract concep-
tion of the legal person, as the sustainer of rights, is not arrived at till
long after rights have been actually recognised and established. But the
disentanglement or abstract formulation of the conception of moral per-
sonality is quite a different thing from the action of the consciousness in
which personality, consists.

29. The capacity, then, on the part of the individual of conceiving a
good as the same for himself and others, and of being determined to
action by that conception, is the foundation of rights; and rights are the
condition of that capacity being realised. No right is justifiable or should
be a right except on the ground that directly or indirectly it serves this
purpose. Conversely every power should be a right, i.e., society should
secure to the individual every power, that is necessary for realising this

Principles of Political Obligation/21

capacity. Claims to such powers as are directly necessary to a man's
acting as a moral person at all — acting under the conception of a good
as the same for self and others — may be called in a special sense per-
sonal rights (though they will include more than Stephen includes under
that designation); they may also be called, if we avoid misconceptions
connected with these terms, 'innate' or 'natural' rights. They are thus
distinguished from others which are (1) only indirectly necessary to the
end stated, or (2) are so only under special conditions of society; as well
as from claims which rest merely on legal enactment and might cease to
be enforced without any violation of the jus naturae.

30. The objection to calling them 'innate' or 'natural,' when once it
is admitted on the one side that rights are not arbitrary creations of law
or custom but that there are certain powers which ought to be secured as
rights, on the other hand that there are no rights antecedent to society,
none that men brought with them into a society which they 'contracted'
to form, is mainly one of words. They are 'innate' or 'natural' in the
same sense in which according to Aristotle the state is natural — not in
the sense that they actually exist when a man is born and that they have
actually existed as long as the human race — but that they arise out of,
and are necessary for the fulfilment of, a moral capacity without which
a man would not be a man. There cannot be 'innate' rights in any other
sense than that in which there are innate duties, of which, however,
much less has been heard. Because a group of beings are capable each
of conceiving an absolute good of himself and of conceiving it to be
good for himself as identical with, and because identical with, the good
of the rest of the group, there arises for each a consciousness that the
common good should be the object of action, i.e., a duty, and a claim in
each to a power of action that shall be at once secured and regulated by
consciousness of a common good on the part of the rest, i.e., a right.
There is no ground for saying that the right arises out of a primary
human capacity, and is thus 'innate' which does not apply equally to the
duty.

3 1 . The dissociation of 'innate' rights from 'innate' duties has gone
along with the delusion that such rights existed apart from society Men
were supposed to have existed in a state of nature, which was not a state
of society, but in which certain rights attached to them as individuals,
and then to have formed societies by contract or covenant. Society hav-
ing been formed, certain other rights arose through positive enactment;
but none of these, it was held, could interfere with the natural rights

22/T.H. Green

which belonged to men antecedently to the social contract or survived it.
Such a theory can only be stated by an application to an imaginary
state of things, prior to the formation of societies as regulated by cus-
tom or law, of terms that have no meaning except in relation to such
societies. 'Natural right,' as = right in a state of nature which is not a
state of society, is a contradiction. There can be no right without a con-
sciousness of common interest on the part of members of a society.
Without this there might be certain powers on the part of individuals,
but no recognition of these powers by others as powers of which they
allow the exercise, nor any claim to such recognition, and without this
recognition or claim to recognition there can be no right.

B. Spinoza

32. Spinoza is aware of this. In the Tractatus Politicus, he says 'By the
right of nature, then, I mean the actual laws or rules of nature in accor-
dance with which all things come to be; that is, the actual power of
nature... Hence everything a man does in accordance with the laws of
his nature, he does by the sovereign right of nature, and he has as much
right against other things in nature as he has power and strength' (11.4).
If only, seeing that the jwi' naturae [law of nature] was mere potenda
[power], he had denied that it was jus at all, he would have been on the
right track. Instead of that, however, he treats it as properly jus, and
consistently, with this regards all jus as mere potenda: nor is any jus
humanum [human law] according to him, guided by or the product of
reason. It arises, in the modern phrase, out of the 'struggle for exist-
ence.' As Spinoza says.'., men are led more by blind desire than by
reason; and so their natural power, or natural right, must not be defined
in terms of reason, but must be held to cover every possible appetite by
which they are determined to act, and by which they try to preserve
themselves' (II. 5). The jus civile [civil law] is simply the result of the
conflict of natural powers, which = natural rights, which arises from the
effort of every man to gratify his passions and 'preserve his own being.'
Man is simply a pars naturae [part of nature], the most crafty of the
animals. 'In so far as men are tormented by anger, envy, or any passion
involving hatred, they are divided and at odds with one another; and are
the more to be feared because they are more powerful, more cunning
and astute, than other creatures. But men are by nature subject to these
passions in the highest degree... so men are by nature enemies' (11.14).
Universal hostility means universal fear, and fear means weakness. It

Principles of Political Obligation/23

follows that in the state of nature there is nothing fit to be called poten-
tia or consequently 7M5;

I therefore conclude that the right of nature peculiar to hu-
man beings can scarcely be conceived save where men hold
rights as a body, and thus have the power to defend their pos-
session of territories which they can inhabit and cultivate, to
protect themselves, to repel all force, and to live in accordance
with the common judgement of all. For (by section 1 3 of this
Chapter) the more men there be that unite in this way, the more
rightthey collectively possess;... (11.15).

The collective body, i.e., has m^ove jus in naturam [right in nature],
i.e., potentiam, than any individual could have singly (II. 13). In the
advantage of this increased jm5 in naturam the individual shares. On the
other hand.

Where men hold rights as a body, and are all guided as if by
one mind, then, of course, (by Section 13 of this Chapter) each
of them has the less right the more the rest together exceed him
in power; that is, his only real right against other things in na-
ture is what the corporate right allows him. In other matters he
must carry out every command laid upon him by the common
decision; or (by Section 4 of this Chapter) be compelled to do
so by right (11.16).

This jus by which the individual's actions are now to be regulated,
is still simply potentia. 'This corporate right, which is defined by the
power of a people, is generally called sovereignty... (11.17). It is not to
be considered anything different from jus naturae. It is simply the naturalis
potentia of a certain number of men combined; 'of a people which is
guided as if by one mind' (III. 2).

Thus in the status civilis [civil state] the jus naturae of the indi-
vidual in one sense disappears, in another does not. It disappears in the
sense that the individual member of the state has no mind to act or
power to act against the mind of the state. Anyone who had such a mind
or power would not be a member of the state He would be an enemy
against whose potentia the state must measure its own. On the other
hand, in statu civili, just as much as in statu naturali, 'man acts in

24/T.H. Green

accordance with the laws of his own nature and pursues his own advan-
tage' (III. 3). He exercises his naturalis potentia for some natural end of
satisfying his wants and preserving his life as he did or would do outside
the status civilis. Only in status civilis these motives on the part of
individuals so far coincide as to form the 'one mind' (11.16) which di-
rects the 'power of the people' (11.17).

According to this view any member of a state will have just so much
jus, i.e., potentia, against other members as the state allows him. If he
can exercise any jus or potentia against another 'on his own judgement'
(III. 3), he is so far not a member of the state and the state is so far
imperfect. If he could exercise any jm^ ov potentia against the state it-
self, there would be no state, or, which is the same, the state would not
be sui juris [autonomous] .

33. Is there then no limit to ihejus which the state may exercise?
With Spinoza this is equivalent to the question, is there no limit to the
potentia which it can exercise? As to this, he suggests three consider-
ations.

(1) Its power is weakened by any action against right reason, be-
cause this must weaken the 'union of minds' on whichitis founded. .'..
[T]he right of a commonwealth is determined by the power of a people
guided as if by one mind; but this union of minds is quite inconceivable
unless the commonwealth does its best to achieve those conditions which
sound reason declares to be for the good of all men' (III. 7). And it is a
contradiction to say that the state has a right to weaken its own power.

(2) The 'right' or 'power' of the state depends on its power of af-
fecting the hopes and fears of individual citizens. 'Subjects are under
the control of the commonwealth, and not possessed of their own right,
only in so far as they fear its power or its threats, or in so far as they
love the political order (by Section 10 of the previous Chapter). It fol-
lows that all actions which no one can be induced to do by rewards or
threats fall outside the right of the commonwealth' (III. 8). Whatever
cannot be achieved by rewards and threats is beyond the power and
therefore beyond the 'right' of the state. Examples are given in the same
section.

(3) .'.. commands which arouse the indignation of a great number
of subjects hardly fall within the right of the commonwealth. 'Severities
of a certain kind lead to conspiracies against the state, and thus weaken
it; . ' . . what is true of each citizen, or of each man in the state of nature,
is true of a commonwealth also; the greater its cause for fear it has, the

Principles of Political Obligation/25

less is it possessed of own right' (III. 9).

Just so far then as there are certain things which the state cannot do,
or by doing which it lessens its power, so far there are things which it
has no 'right' to do.

34. Spinoza proceeds to consider the relation of states or sovereign
powers to each other. Here the principle is simple. They are to each
other as individuals in the state of nature, except that they will not be
subject to the same weaknesses.

For since (by Section 2 of this Chapter) the right of the
sovereign is simply the right of nature itself, two states are in
the same relation to one another as two men in the condition of
nature; with this exception, that a commonwealth can guard
itself against being subjugated by another, as a man in the state
of nature cannot do. For, of course, a man is overcome by sleep
every day, is often afflicted by disease of body or mind, and is
finally prostrated by old age; in addition, he is subject to other
troubles against which a commonwealth can make itself secure
(III. 11).

In other words '... two commonwealths are enemies by nature. For
men in the state of nature are enemies...; and so all who retain the right
of nature, and are not united in a single commonwealth, remain en-
emies' (III. 13). 'Rights to make war' are simply the powers of any one
state to attack or defend itself against another. 'Rights to maintain peace-
ful relations' (III. 13), on the other hand, do not appertain to any single
state, but arise out of the agreement of two at least. They last as long as
the agreement, the foedus, lasts; and this lasts as long as the fear or
hope, which led to its being made, continues to be shared by the states
which made it (III. 14). As soon as this ceases to be the case, the agree-
ment is necessarily at an end, ' [and a state] cannot be accused of treach-
ery or perfidy because it breaks faith as soon as its reason for fear or
hope is removed. For in this respect each contracting party was on pre-
cisely the same footing; if it could be the first to free itself from fear it
would gain possession of its own right, and would use it as its own
judgement dictated' (III. 14).

35. It would seem to follow from the above that a state can do no
wrong, in the sense that there are no rights that it can violate. The same

26/T.H. Green

principle is applicable to it as to the individual; .'.. there is no sin in the
state of nature; or rather,.... if anyone sins, it is against himself, and not
against others... [the law of nature] forbids absolutely nothing that is
within human power' (11.18). A state is to any other state, and to its
subjects, as one individual against another in statu naturali. A wrong, a
peccatum, consists in a violation by individuals of the commune decre-
tum [common decree]. There can be no peccare on the part of the com-
mune decretum itself. But

I do not assert that everything which I say is done in the
best way. It is one thing to cultivate a field by right, and another
to cultivate it in the best way; it is one thing, I say, to defend and
preserve oneself, to give judgement and so on by right, another
to defend and preserve oneself in the best way, and to give the
best judgement. In consequence, it is one thing to rule and have
charge of public affairs by right, another to rule and direct pub-
lic affairs in the best way. So now that I have dealt with the
right of commonwealths in general, it is time for me to discuss
their best condition. (V. 1)

Hence a further consideration 'of the best condition of common-
wealths' (V.l). This is guided by reference to the 'finis status civilis
[Purpose of the political order],' which is 'pax vitaeque securitas' ['Peace
and security of life'; V.2]. Accordingly that is the best government un-
der which men live in harmony and of which the rights are kept invio-
late. Where this is not the case the fault lies with the government, not
with any 'wickedness of its subjects. For citizens are not born, but made.
Besides, man's natural passions are not the same everywhere...' (V.2).

The end is not fully attained where men are merely kept in order by
fear. Such a state of things is not peace but merely absence of war. 'For
peace is not absence of war, but a virtue based on strength of mind
[animi fortitudine] ; since... obedience is the steadfast will to do what the
general decree of the commonwealth requires' (V.4).

The 'peace,' then, which it is the end of the state to obtain, consists
in rational virtue; in a common mind, governed by desire on the part of
each individual for perfection of being in himself and others. The har-
mony of life, too, which is another way of expressing its object, is to be
understood in an equally high sense. The life spoken of is one
'characterised primarily by reason, the true virtue and life of the mind'

Principles of Political Obligation/27

(V.5).

The imperium [sovereignty] which is to contribute to this end must
clearly be one 'established by a free people, and not... a tyranny ac-
quired over a people by the right of war' (V.6). Between the two forms
of imperium there may be no essential difference in respect of the jUs
which belongs to each, but there is the greatest in respect of the ends
which they serve as well as in the means by which they have to be
maintained' (V.6).

36. This conclusion of Spinoza's doctrine of the state does not seem
really consistent with the beginning. At the outset' no motives are
recognised in men but such as render them natura hostes (natural en-
emies]. From the operation of these motives the state is supposed to
result. Each individual finds that the war of all against all is weakness
for all. Consequently the desire on the part of each to strengthen him-
self, which is a form of the universal effort 'to preserve his own being'
(II. 5), leads to combination, it being discovered that 'nothing is more
useful to man than man' (Ethic, IV. 18, Schol.). But we are expressly
told that the civil state does not bring with it other motives than those
operative in statu naturali. 'The fact is that man acts in accordance with
the laws of his own nature and pursues his own advantage in both the
natural and the political order' (III.3). But then it appears that there
supervenes or may supervene on such motives .'.. the steadfast will to
do what the general decree of the commonwealth requires' (V.4), and
that not of a kind which seeks to carry out the commune decretum as a
means of escaping pain or obtaining pleasure, for it is said to arise from
the animi fortitudo which rests on reason ('related to the mind in so far
as it thinks' — Ethic, III. 59, Schol.) and includes generositas defined as
above. It is also said that the true object of imperium is 'vitam concorditer
tanigere' ['living in harmony'] or 'vitam colere ' ['improving life'] in a
sense of vita in which it is 'characterised primarily by reason' (V.5).
And as the imperium established for this end is one which is 'estab-
lished by a free people' (V. 6), it seems to be implied that there is a
desire for such an end on the part of the people. It is not explained how
such desires should arise out of the conflict of naturales potentiae or out
of the impulses which render men natura hostes. On the other hand, if
the elements of them already exist in the impulses which lead to the
formation of the status civilis, the reasons for saying that men are natura
hostes disappear, and we get a different view of jus whether naturale or
civile from that which identifies it simply with potentia. Some power of

28/T.H. Green

conceiving and being interested in a good as common, some identifica-
tion of the esse of others with suum esse which every man, as Spinoza
says, seeks to preserve and promote, must be supposed in those who
form the most primitive social combinations if these are to issue in a
state directed to such ends and maintained by such a 'steadfast will' as
Spinoza describes. And it is the interest of men in a common good, the
desire on the part of each which he thinks of others as sharing, for a
good which he conceives to be equally good for them, that transforms
mere potentia into what may fitly be called jus, i.e., a power claiming
recognition as exercised or capable of being exercised for the common
good.

37. If this qualification of potentia which alone renders it jus had
been apprehended by Spinoza, he would have been entitled to speak of a
jus naturale [natural law] as preceding ihejus civile, i.e., of claims to
the recognition of powers and the actual customary recognition of such,
as exercised for a common good, preceding the establishment of any
regular institutions or general laws for securing their exercise. As it is,
the term jus naturale is with him really unmeaning . If it means no more
than potentia, why call it jus!

Jus might have a meaning distinct from that of potentia in the sense
of a power which a certain imperium enables one man to exercise as
against another. This is what Spinoza understands by jus civile. But
there is no need to qualify it as civile, unlessjM^ may be employed with
some other qualification and with a distinctive meaning. But the jm^
naturale, as he understands it, has no meaning other than that of poten-
tia, and his theory as it stands would have been more clearly expressed
if instead of jus naturale and. jus civile he had spoken of potentia and
jus, explaining that the latter was a power on the part of one man against
others, maintained by means of an imperium which itself results from a
combination of 'powers.' He himself in one passage shows a conscious-
ness of the impropriety of speaking of jus except with reference to a
community; '... the right, of nature peculiar to human beings can scarcely
be conceived save where men hold rights as a body, and thus have the
power to defend their possession of territories which they can inhabit
and cultivate, to protect themselves, to repel all force, and to live in
accordance with the common judgement of all' (11.15). He takes no no-
tice, however, of any forms of community more primitive than that of
the state. The division into the status naturalis and the status Civilis he
seems to treat as exhaustive, and the status naturalis he regards, after

Principles of Political Obligation/29

the manner of his time, as one of pure individualism, of simple detach-
ment of man from man, or of detachment only modified by conflict.
Such a status naturalis lacks both the natural and the rational principles
of social development — the natural principle, i.e., the interest in others
arising primarily from family ties, and the rational principle, i.e., the
power of conceiving a good consisting in the more perfect being of the
individual and of those in whom he is interested. No process could be
traced from it to the status Civilis. The two status stand over against
each other with an impassable gulf between. 'Citizens are not born but
made' (V.2). They are so made, he seems to hold, by the action of the
imperium upon them. But how is the imperium to be made? Men must
first be, if not civiles, yet something very different from what they are in
the status naturalis, between which and the status civilis Spinoza
recognises no middle term, before any imperium which could render
them civiles could be possible.

38. The cardinal error of Spinoza's Politics is the admission of the
possibility of a right in the individual apart from life in society; apart
from the recognition by members of a society of a correlative claim
upon and duty to each other, as all interested in one and the same good.
The error was the error of his time, but with Spinoza it was confirmed
by his rejection of final causes. The true conception of 'right' depends
on the conception of the individual as being what he really is in virtue of
a function which he has to fulfil relatively to a certain end, that end
being the common well being of a society. A 'right' is an ideal attribute
('ideal' in the sense of not being sensibly verifiable, not reducible to any
perceivable fact or facts) which the individual possesses so far as this
function is in some measure freely fulfilled by him — i.e., fulfilled with
reference to or for the sake of the end and so far as the ability to fulfil it
is secured to him through its being recognised by the society as properly
belonging to him. The essence of right lies in its being not simply a
power producing sensible effects, but a power relative to an insensible
function and belonging to individuals only in so far as each recognises
that function in himself and others. It is not in so far as I can do this or
that that I have a right to do this or that, but so far as I recognise myself
and am recognised by others as able to do this or that for the sake of a
common good, or so far as in the consciousness of myself and others I
have a function relative to this end. Spinoza, however, objects to regard
anything as determined by relation to a final cause. He was not disposed
therefore to regard individuals as being what they are in virtue of func-

30/T.H. Green

tions relative to the life of society, still less as being what they are in
virtue of the recognition by each of such functions in himself and others.
He looked upon man, like everything else in nature, as determined by
material and efficient causes, and as himself a material and efficient
cause. But as such he has no 'rights' or 'duties' but only 'powers.'

39. It was because Plato and Aristotle conceived the life of \he polls
[state] so clearly as the telos [end] of the individual, relation to which
makes him what he is the relation in the case of the polltes [citizen]
proper being a conscious or recognised relation — that they laid the foun-
dation for all true theory of 'rights.' It is true that they have not even a
word for 'rights.' The claims which in modern times have been ad-
vanced on behalf of the individual against the state under the designa-
tion 'natural rights' are most alien from their way of thinking. But in
saying that the polls was a 'natural' institution and that man was phusel
polltlkos [political by nature] Aristotle, according to the sense which he
attached to polls was asserting the doctrine of 'natural rights' in the
only sense in which it is true. He regards the state {polls) as a society of
which the life is maintained by what its members do for the sake of
maintaining it by functions consciously fulfilled with reference to that
end, which in that sense imposes duties and from which at the same time
its members derive the ability, through education and protection, to ful-
fil their several functions, which in that sense confers rights. It is thus
that the polltes metechel tou archeln kal tou archesthal [the citizen
participates both in ruling and in being ruled]. Man, hemg phusel polltes
[by nature a citizen] — being already in respect of capacities and tenden-
cies a member of such a society, existing only in kolnonlal [associa-
tions] which contain its elements has 'naturally' the correlative duties
and rights which the state imposes and confers. Practically it is only the
Greek man that Aristotle regards as phusel polltes, but the Greek con-
ception of citizenship once established was applicable to all men ca-
pable of a common interest. This way of conceiving the case, however,
depends on the 'teleological' view of man and the forms of society in
which he is found to live, i.e., on the view of men as being what they are
in virtue of insensible functions and of certain forms of life as deter-
mined by relation to more perfect forms which they have the capacity or
tendency to become.

40. Spinoza, like Bacon, found the assumption of ends which things
were meant to fulfil in the way of accurate inquiry into what things are
(materially) and do. He held Plato and Aristotle cheap as compared

Principles of Political Obligation/31

with Democritus and Epicurus (Letter LVI). Accordingly he considers
the individual apart from his vocation as a member of society, the state
apart from its office as enabling the individual to fulfil that vocation.
Each so considered is merely a vehicle of so much power (natural force).
On the other hand, he recognises a difference between a higher and lower,
a better and worse, state of civil society, and a possibility of seeking the
better state because it is understood to be better. And this is to admit the
possibility of the course of human affairs being affected by the concep-
tion of a final cause. It is characteristic of Spinoza that while he never
departs from the principle 'man is simply a pars naturae' (11.5), he
ascribes to him the faculty of understanding the order of nature, and of
conforming to it or obeying it in a new way on account of that under-
standing. In other words, he recognised the distinction called by Kant
the distinction between determination according to law and determina-
tion according to the consciousness of law; though in his desire to assert
the necessity of each kind of determination he tends to disguise the dis-
tinction and to ignore the fact that, if rational determination or the deter-
mination by a conception of a law is a part of nature, it is so in quite a
different sense from determination merely according to laws of nature.
As he puts it, the clear understanding that we are parts of nature, and of
our position in the universe of things, will yield a new character. We
shall only then desire what is ordained for us and shall find rest in the
truth, in the knowledge of what is necessary. This he regards as the
highest state of the individual, and the desire to attain it he evidently
considers the supreme motive by which the individual should be gov-
erned. The analogue in political life to this highest state of the individual
is the direction of the imperium by a 'libera muldtudo' ['free people']
to the attainment of 'pax vitaeque securitas' (V.2), in the high sense
which he attaches to those words in Tractatus Politicus, ch. V.

41. The conclusion then is that Spinoza did really, though not ex-
plicitly, believe in a final cause determining human life. That is to say,
he held that the conception of an end consisting in the greater perfection
of life on the part of the individual and the community might, and to
some extent did, determine the life of the individual and the community.
He would have said no doubt that this end, like every good, existed only
in our consciousness; that it was 'nothing positive in things considered
in themselves' (Ethic, IV, Preface), but an existence of the end in human
consciousness, determining human action, is a sufficiently real exist-
ence, without being 'positive in things.' But he made the mistake of

32/T.H. Green

ignoring the more confused and mixed forms in which the conception of
this end operates; of recognising it only in the forms of the philosophic
'love of God,' or in the wisdom of the exceptional citizen, whom alone
he would admit are guided by reason. And in particular he failed to
notice that it is the consciousness of such an end to which his powers
may be directed that constitutes the individual's claim to exercise them
as rights, just as it is the recognition of them by a society as capable of
such direction which renders them actually rights; in short that, just as
according to him nothing is good or evil but thinking makes it so, so it is
only thinking that makes a might a right — a certain conception of the
might as relative to a social good on the part at once of the person or
persons exercising it and of a society which it affects.

C. Hobbes

42. All the more fruitful elements in Spinoza's political doctrine are
lacking in Hobbes,' but the principle of the two theories is very much
the same. Each begins with the supposition of an existence of human
individuals, unaffected by society, and each struggling for existence
against the rest so that men are natura hostes [natural enemies]. Each
conceives jus naturale [natural law] as = potentia naturalis [natural
power] . But Spinoza carries out this conception much more consistently.
He does not consider that the natural right, which is might, ceases to
exist or becomes anything else when a multitude combine their natural
rights or mights in an imperium [sovereignty]. If the ostensible impe-
rium comes into collision with the powers of individuals, single or com-
bined, among those who have hitherto been subject to it and proves the
weaker, it ipso facto ceases to be an imperium. Not having superior
power, it no longer has superior right to the subditi. [subjects]. It is on
this principle, as we have seen, that he deals with the question of limita-
tions to the right of a sovereign. Its rights are limited because its powers
are so. Exercised in certain ways and directions they defeat themselves.
Thus as he puts it in Letter L (where he points out his difference from
Hobbes), '... the Supreme Power in a State has no more right over a
subject than is proportionate to the power by which it is superior to the
subject' Hobbes on the other hand supposes his sovereign power to
have an absolute right to the submission of all its subjects, singly or
collectively, irrespectively of the question of its actual power against
them. This right he considers it to derive from a convenant by which
individuals, weary of the state of war, have agreed to devolve their per-

Principles of Political Obligation/33

sonae, in the language of Roman law, upon some individual or collec-
tion of individuals which is henceforward to represent them, and to be
considered as acting with their combined powers. This covenant being
in the nature of the case irrevocable, the sovereign derives from it an
indefeasible right to direct the actions of all members of the society over
which it is sovereign.

43. The doctrine may be found in Leviathan, Part II, chapter 17. In
order

to erect such a common power, as may be able to defend
them from the invasion of foreigners, and the injuries of one
another, [men] confer all their power and strength upon one
man, or upon one assembly of men [i.e.] appoint one man, or
assembly of men, to bear their person... This is more than con-
sent, or concord; it is a unity of them all, in one and the same
person, made by convenant of every man, in such matter, as if
every man should say to to every man, I authorise, and give up
my right of governing myself, to this man, or to this assembly
of men, on this condition, that thou give up thy right to him, and
authorise all his actions in like manner. This done, the multi-
tude so united in one person is called a Commonwealth, in Latin
Civitas... which, to define it, is one person, of whose acts a
great multitude, by mutual covenant one with another, have made
themselves every on the author, to the end he may use the strength
and means of them all, as he shall think expedient, for their
peace and common defence. And he that carrieth this person, is
called Sovereign, and said to have sovereign power; and every
one besides, his Subject.

44. In order to understand the form in which the doctrine is stated,
we have to bear in mind the sense in which persona is used by the Ro-
man lawyers, as = either a complex of rights, or the subject (or pos-
sessor) of those rights, whether a single individual or a corporate body.
In this sense of the word, a man's person is separable from his indi-
vidual existence as a man. ' Unus homo sustinet plures per sonae' ['Each
man has many personas']. A magistrate, e.g., would be one thing in
respect of what he is in himself, another thing in respect of his persona
or complex of rights belonging to him as a magistrate, and so too a
monarch. On the same principle, a man remaining a man as before.

34/T.H. Green

might devolve his persona, the complex of his rights, on another. A son,
when by the death of his father according to Roman law he was deliv-
ered from patria potestas [fatherly authority] and became in turn head
of a family, acquired a persona which he had not before the persona
which had previously belonged to the father. Again, to take a modern
instance, the fellows of a college, as a corporation, form one persona,
but each of them would bear other 'persons,' if, e.g., they happened to
be magistrates, or simply in respect of their rights as citizens. Thus 'one
person' above = one sustainer of rights; while in the second passage,
'carrieth this person,' it rather — the rights sustained.

45. Hobbes expressly states that the sovereign 'person' may be an
assembly, of men, but the natural associations of the term, when the
sovereign is spoken of as a person, favour the development of a monar-
chical doctrine of sovereignty.

Sovereign power is attained either: by acquisition or institution. By
acquisition, when a man makes his children and their children, or a
conqueror his enemies, to submit under fear of death; by institution,
when men agree among themselves to submit to some man or assembly
'on confidence to be protected by him against all others. ' Hobbes speaks
as if these were two ways by which a commonwealth and a sovereign
defined as above could be brought into existence, but clearly a sover-
eign by acquisition is not a sovereign in the sense explained. He does not
'carry a person... of whose acts a great multitude by mutual covenant
one with another, have made themselves every on the author, to the end
he may use the strength and means of them all, as he shall think expedi-
ent, for their peace and common defence.' And what Hobbes describes
in the sequel (ch. 18) are, as he expressly says, rights of sovereigns by
institution; but he seems tacitly to assume that every sovereign may
claim the same, though he could hardly have supposed that the existing
sovereignties were in their origin other than sovereignties by acquisi-
tion.

A commonwealth is said to be instituted, when a multitude
of men do agree and covenant, every one with every one, that to
whatsoever man or assembly of men, shall be given by the ma-
jor part the right to present the person of them all,... every one,
as well he that voted for it, as he that voted against it, shall
authorise all the actions and judgments of that man or assembly
of men, in the same manner as if they were his own, to the end

Principles of Political Obligation/35

to live peaceably amongst themselves, and be protected against
other men.

Here a distinction is drawn between the covenant of all with all to
be bound by the act of the majority in appointing a sovereign, and that
act of appointment itself which is not a covenant of all with all. The
natural conclusion would be that it was no violation of the covenant if
the majority afterwards transferred the sovereign power to other hands.
But in the sequel Hobbes expressly makes out such a transference to be
a violation of the original compact. This is an instance of his desire to
vindicate the absolute right of a de facto monarch.

46. Throughout these statements we are moving in a region of fic-
tion from which Spinoza keeps clear. Not only is the supposition of the
devolution of wills or powers on a sovereign by a covenant historically
a fiction (about that no more need be said); the notion of an obligation
as distinct from a compulsion to observe this covenant is inconsistent
with the supposition that there is no right other than power prior to the
act by which the sovereign power is established. If there is no such right
antecedent to the establishment of the sovereign power, neither can there
be any after its establishment except in the sense of a power on the part
of individuals which the sovereign enables them to exercise. This power,
or jus civile, cannot itself belong to the sovereign, who enables indi-
viduals to exercise it. The only right which can belong to the sovereign
is XhQJus naturale, consisting in the superiority of his power, and this
right must be measured by the inability of the subjects to resist. If they
can resist, the right has disappeared. In a successful resistance, then, to
an ostensibly sovereign power, there can on the given supposition be no
wrong done to that power. To say that there is, would be a contradiction
in terms. Is such resistance, then, a violation of ihejus civile as between
the several subject citizens? In the absence of a sovereign power, no
doubt, ihejus civile (according to the view in question, which makes it
depend on the existence of an imperium) would cease to exist. But then
a successful resistance would simply show that there was no longer
such a sovereign power. It would not itself be a violation of jus civile,
but simply a proof that the conditions of jus civile were no longer present.
It might at the same time be a step to re-establishing them if, besides
being a proof that the old imperium no longer exists, it implied such a
combination of powers as suffices to establish a new one.

47. No obligation, then, as distinct from compulsion, to submit to

36/T.H. Green

an ostensibly sovereign power can consistently be founded on a theory
according to which right either = simple power, or only differs from it,
in the form of jus civile, through being a power which an imperium
enables individuals to exercise as against each other. Hobbes could not,
indeed, have made out his doctrine (of the obligatoriness of absolute
submission to the sovereign) with any plausibility if he had stated with
the explicitness of Spinoza that 7M5 naturale = naturalis potentia. That
it is so is implied in the account of the state of things preceding the
establishment of sovereignty as one of helium omnium contra omnes
[war of all against all] for where there is no recognition of a common
good, there can be no right in any other sense than power. But where
there are no rights but natural powers, no obligatory covenant can be
made. In order, however, to get a sovereignty, to which there is a per-
petual obligation of submission, Hobbes has to suppose a covenant of
all with all, preceding the establishment of sovereignty, and to the ob-
servance of which, therefore, there cannot be an obligation in the sense
that the sovereign punishes for the non-observance (the obligation cor-
responding to jus civile in Spinoza's sense), but which no one can ever
be entitled to break. As the obligatoriness of this covenant, then, cannot
be derived from the sovereignty which is established through it, Hobbes
has to ascribe it to a 'law of nature' which enjoins 'that men perform
their covenants made.' Yet in the immediate sequel of this passage he
says expressly, 'the nature of justice consisteth in keeping of valid cov-
enants, but the validity of covenants begins not but with the constitution
of a civil power, sufficient to compel men to keep them; and then it is
also that propriety begins.' On this principle the covenant by which a
civil power is for the first time constituted cannot be a valid covenant.
The men making it are not in a position to make a valid covenant at all.
The 'law of nature,' to which alone Hobbes can appeal according to his
principles, as the source of the obligatoriness of the covenant of all with
all, he defines as a 'precept or general rule, found out by reason, by
which a man is forbidden to do that, which is destructive of his life, or
taketh away the means of preserving the same; and to omit that, by
which he thinketh it may be best preserved.' When a law of nature,
however, is said to command or forbid, we must not understand those
terms in that sense which, according to Hobbes, could only be derived
from the establishment of an imperium. This 'law of nature,' therefore,
is merely an expression in a general form of the instinct by which, as
Spinoza says, every living creature 'seeks to preserve his own being,' as

Principles of Political Obligation/37

guided by a calculation of consequences (for no meaning but this can be
given to 'reason' according to Hobbes). The prohibition, then, by this
law of nature of a breach of that covenant of all with all, by which a
sovereign power is supposed to be established, can properly mean noth-
ing more than that it is everyone's interest to adhere to it. This however
could only be a conditional prohibition conditional, in particular, on the
way in which the sovereign power is exercised. Hobbes tries to show
that it must always be for the advantage of all to obey it, because not to
do so is to return to the state of universal war, but a successful resis-
tance to it must be ipso facto an establishment of a new combined power
which prevents the bellum omnium contra omnes from returning. At
any rate an obligation to submit to established imperium measured by
the self-interest of each in doing so, is quite a different thing from the
obligation which Hobbes describes in terms only appropriate (accord-
ing to his own showing) to contracts between individuals enforced by a
sovereign power.

48. It would seem that Hobbes' desire to prove all resistance to
established sovereignty unjustifiable leads him to combine inconsistent
doctrines. He adopts the notion that men are natura hostes, that jus
naturale = mere power, because it illustrates the benefit to man's estate
derived from the establishment of a supreme power and the effects of
the subversion of such power once established, which he assumes to be
equivalent to a return to a state of nature. But this notion does not jus-
tify the view that a rebellion, which is strong enough to succeed, is
wrong. For this purpose he has to resort to the representation of the
sovereign as having a right, distinct from power, founded on a contract
of all with all, by which sovereignty is established. This representation
is quite alien to Spinoza, with whom sovereignty arises, it is true, when
'many are united,' but in the sense of combining their powers, not of
contracting. But after all, the fiction of this contract will not serve the
purpose which Hobbes wants it to serve. The sovereignty established by
the contract can only have a natural right to be maintained inviolate, for
all other right presupposes it and cannot be presupposed by it. If this
natural right means mere power, then upon a successful rebellion it dis-
appears. If it means anything else, it must mean that there are natural
rights of men other than their mere power, which are violated by its
subversion. But if there are such rights, there must equally be a possi-
bility of collision between the sovereign power and these natural rights,
which would justify a resistance to it.

38/T.H. Green

49. It may be asked whether it is worth while to examine the inter-
nal consistency of a theory which turns upon what is admitted to be
historically a fiction the supposition of a contract of all with all. There
are fictions and fictions however. The supposition that some event took
place which as a matter of history did not take place may be a way of
conveying an essentially true conception of some moral relation of man.
The great objection to the representation of the right of a sovereign
power over subjects, and the rights of individuals which are enforced by
this imperium, as having arisen out of a contract of all with all, is that it
conveys a false notion of rights. It is not merely that the possibility of
such a contract being made presupposes just that state of things — a r
gime of recognised and enforced obligations which it is assumed to ac-
count for. Since those who contract must already have rights, the repre-
sentation of society with its obligations as formed by contract implies
that individuals have certain rights , independently of society and of their
functions as members of a society, which they bring with them to the
transaction. But such rights abstracted from social function and recog-
nition could only be powers or (according to Hobbes' definition) liber-
ties to use powers, which comes to the same; i.e., they would not be
rights at all; and from no combination or devolution of them could any
right in the proper sense, anything more than a combined power, arise.

50. Spinoza's then is the only logical development of that separa-
tion of right from social duty which is implied in the doctrine of 'social
contract.' Happily the doctrine has not been logically developed by those
whose way of thinking has been affected by it. The reduction of political
right — the right of the state over its subjects — to superior power, has
not been popularly accepted, though the general conception of national
right seems pretty much to identify it with power. Among the enlight-
ened, indeed, there has of late appeared a tendency to adopt a theory
very like Spinoza's, without the higher elements which we noticed in
Spinoza; to consider all right as a power attained in that 'struggle for
existence' to which human 'progress' is reduced. But for one person,
who, as a matter of speculation, considers the right of society over him
to be a disguised might, there are thousands who, as a matter of prac-
tice, regard their own right as independent of that correlation to duty
without which it is merely a might. The popular effect of the notion that
the individual brings with him into society certain rights which he does
not derive from society — which are other than claims to fulfil freely
(i.e., for their own sake) certain functions towards society — is seen in

Principles of Political Obligation/39

the inveterate irreverence of the individual towards the state in the as-
sumption that he has rights against society irrespectively of his fulfilment
of any duties to society, that all powers that be are restraints upon his
natural freedom which he may rightly defy as far as he safely can.

D. Locke

51. It was chiefly Rousseau who gave that cast to the doctrine of the
origin of political obligation in contract in which it best lends itself to
the assertion of rights apart from duties on the part of individuals, in
opposition to the counter- fallacy which claims rights for the state irre-
spectively of its fulfilment of its function as securing the rights of indi-
viduals. It is probably true that the Contrat Social had great effect on
the founders of American independence an effect which appears in the
terms of the Declaration of Independence and in preambles to the con-
stitutions of some of the original American states. Butthe essential ideas
of Rousseau are to be found in Locke's Second Treatise of Government,
which was probably well known in America for half a century before
Rousseau was heard of. Locke again constantly appeals to Hooker's
first book on Ecclesiastical Polity, and Grotius argues in exactly the
same strain.

Hooker, Grotius, Hobbes, Locke, and Rousseau only differ in their
application of the same conception; viz. that men live first in a state of
nature, subject to a law of nature, also called the law of reason; that in
this state they are in some sense free and equal; that 'finding many
inconveniences' in it they covenant with each other to establish a gov-
ernment — a covenant which they are bound by the 'law of nature' to
observe — and that out of this covenant the obligation of submission to
the 'powers that be' arises. Spinoza alone takes a different line: he does
not question the state of nature or the origin of government in a combi-
nation of men who find the state of nature 'inconvenient' ; but he regards
this combination as one of powers directed to a common end and consti-
tuting superior force, not as a covenant which men are bound by the law
of nature to observe.

52. The common doctrine is so full of ambiguities that it readily
lends itself to opposite applications. In the first place 'state of nature'
may be understood in most different senses. The one idea common to all
the writers who suppose such a state to have preceded that of civil soci-
ety is a negative one. It was a state which was not one of political soci-
ety, one in which there was no civil government; i.e., no supreme power.

40/T.H. Green

exercised by a single person or plurality of persons, which could compel
obedience on the part of all members of a society and was recognised as
entitled to do so by them all, or by a sufficient number of them to secure
general obedience. But was it one of society at all? Was it one in which
men had no dealings with each other except in the way of one struggling
to make another serve his will and to get for himself what the the other
had, or was it one in which there were ties of personal affection and
common interest, and recognised obligations, between man and man?
Evidently among those who spoke of a state of nature there were very
various and wavering conceptions on this point. They are apt to make
an absolute opposition between the state of nature and the political state,
and to represent men as having suddenly contracted themselves out of
one into the other. Yet evidently the contract would have been impos-
sible unless society in a form very like that distinctively called political
had been in existence beforehand. If political society is to be supposed
to have originated in a pact at all, the difference between it and the
preceding state of nature cannot with any plausibility be held to have
been much more than a difference between a society regulated by writ-
ten law and officers with defined power and one regulated by customs
and tacitly recognised authority.

53. Again, it was held that in a state of nature men were 'free and
equal.' This is maintained by Hobbes as much as by the founders of
American independence. But if freedom is to be understood in the sense
in which most of these writers seem to understand it, as a power of
executing, of giving effect to, one's will, the amount of freedom pos-
sessed in a state of nature, if that was a state of detachment and collision
between individuals, must have been very small. Men must have been
constantly thwarting each other and (in the absence of that jus in naturam
[right in nature] , as Spinoza calls it, which combination gives) thwarted
by powers of nature. In such a state those only could be free, in the
sense supposed, who were not equal to the rest, who in virtue of supe-
rior power could use the rest. But whether we suppose an even balance
of weaknesses, in subjection to the crushing forces of nature, or a do-
minion of few over many by means of superior strength, in such a state
of nature no general pact would be possible. No equality in freedom is
possible except for members of a society of whom each recognises a
good of the whole which is also his own, and to which the free coopera-
tion of all is necessary. But if such society is supposed in the state of
nature — and otherwise the 'pact' establishing political society would be

Principles of Political Obligation/41

impossible — it is already in principle the same as political society.

54. It is not always certain whether the writers in question consid-
ered men to be actually free and equal in the state of nature, or only so
according to the 'law of nature,' which might or might not be observed.
(Hobbes represents the freedom and equality in the state of nature as
actual, and this state as being for that reason bellum omnium contra
omnes [a war of all against all].) They all, however, implicitly assume a
consciousness of the law of nature in the state of nature. It is thus not a
law of nature in the sense in which we commonly use the term. It is not
a law according to which the agents subject to it act necessarily but
without consciousness of the law. It is a law of which the agent subject
to it has a consciousness, but one according to which he may or may not
act; i.e., one according to which he ought to act. It is from it that the
obligation of submission to civil government, according to all these writ-
ers, is derived. But in regard to such a law, two questions have to be
asked: firstly, how can the consciousness of obligation arise without
recognition by the individual of claims on the part of others — social
claims in some form or other — which may be opposed to his momentary
inclinations? and secondly, given a society of men capable of such a
consciousness of obligation, constituting a law according to which the
members of the society are free and equal, in what does it differ from a
political society? If these questions had been fairly considered, it must
have been seen that the distinction between a political society and a state
of nature, governed by such a law of nature, was untenable; that a state
of things out of which political society could have arisen by compact
must have been one in which the individual regarded himself as a mem-
ber of a society which has claims on him and on which he has claims,
and that such society is already in principle a political society. But the
ambiguity attending the conception of the 'law of nature' prevented them
from being considered. When the writers in question spoke of a law of
nature, to which men in the state of nature were subject, they did not
make it clear to themselves that this law, as understood by them, could
not exist at all without there being some recognition or consciousness of
it on the part of those subject to it. The designation of it as 'law of
nature' or 'law of God' helped to disguise the fact that there was no
imponent of it, in the sense in which a law is imposed on individuals, by
a political superior. In the absence of such an imponent, unless it is
either a uniformity in the relations of natural events or an irresistible
force and it is not represented in either of these ways in juristic writings

42/T.H. Green

it can only mean a recognition of obligation arising in the. conscious-
ness of the individual from his relations to society. But this not being
clearly realised, it was possible to represent the 'law of nature' as ante-
cedent to the laws imposed by a political superior, without its being
observed that this implied the antecedence of a condition of things in
which the result supposed to be obtained through the formation of po-
litical society — the establishment, viz. of reciprocal claims to freedom
and equality on the part of members of a society — already existed.

55. In fact, the condition of society in which it could properly be
said to be governed by a law of nature, i.e., by an obligation of which
there is no imponent but the consciousness of man, an obligation of
which the breach is not punished by a political superior, is not anteced-
ent to political society but one which it gradually tends to produce. It is
the radical fault of the theory which finds the origin of political society
in compact that it has to reverse the true process. To account for the
possibility of the compact of all with all it has to assume a society sub-
ject to a law of nature, prescribing the freedom and equality of all. But
a society governed by such a law as a law of nature, i.e., with no imponent
but man's consciousness, would have been one from which political
society would have been a decline one in which there could have been no
motive to the establishment of civil government. Thus this theory must
needs be false to itself in one of two ways. Either it is false to the con-
ception of a 'law of nature,' with its prescription of freedom and equal-
ity as governing the state of things prior to the compact by which politi-
cal society is established, only introducing the law of nature as the ground
of the obligatoriness of that compact but treating the state of nature as
one of universal war in which no reciprocal claims of any sort were
recognised (so Hobbes) or just so far as it realises the conception of a
society governed by a law of nature, as equivalent to that spontaneous
recognition by each of the claims of all others, without which the cov-
enant of all with all is in fact unaccountable, it does away with any
appearance of necessity for the transition from the state of nature to that
of political society, and tends to represent the latter as a decline from the
former. This result is seen in Rousseau; but to a great extent Rousseau
had been anticipated by Locke. The broad differences between Locke
and Hobbes in their development of a common doctrine, are (1) that
Locke denies that the state of nature is a state of war, and (2) that Locke
distinguishes the act by which political society is established from that
by which the government, legislative and executive, is established, and

Principles of Political Obligation/43

consequently the dissolution of the (political) society from the dissolu-
tion of the government ( 211).

56. 'The State of Nature, and the State of War... are as far distant,
as a State of Peace, Good Will, Mutual Assistance, and Preservation,
and a State of Enmity, Malice, Violence, and Mutual Destruction are
one from another. Men living together according to reason, without a
common Superior on Earth, with Authority to judge between them, is
properly the State of Nature. But force, or a declared design of force
upon the Person of another, where there is no common Superior on
Earth to appeal to for relief, is the State of War... (§19). In the state of
nature, however, when the state of war has once begun, there is not the
same means of terminating it as in civil society.

The right of war may belong to a man, 'though he be in Society and
a fellow Subject' (§19), when his person or property is in such immedi-
ate danger that it is impossible to appeal for relief to the common supe-
rior. 'But when the actual force is over, the State of War ceases between
those that are in Society... because then there lies open the remedy of
appeal for the past injury, and to prevent future harm...' (§ 20). In the
state of nature, when the state of war has once begun it continues until
the aggressor offers peace and reparation. The state of war, though not
proper to the state of nature, is a frequent incident of it, and to avoid it
'is one great reason of Mens putting themselves into Society... (§ 21).
The state of nature is not one that is altogether over and done with. 'All
Princes and Rulers of Independent Governments all through the World,
are in a State of Nature...' (§14). The members of one state in dealing
with those of another are in a state of nature, and the law of nature alone
binds them, 'For Truth and keeping of Faith belongs to Men, as men,
and not as Members of S ociety ' (§14). ' [A] 11 Men are naturally in that
State, and remain so, till by their own Consents they make themselves
Members of some Politick Society...' (§15).

57. The antithesis, as put above, between the state of nature and the
state of war can only be maintained on the supposition that the 'law of
nature, is observed in a state of nature. Locke does not explicitly state
that this is the case. If it were so, it would not appear how the state of
war should arise in the state of nature. But he evidently thought of the
state of nature as one in which men recognised the law of nature, though
without fully observing it. He quotes with approval from Hooker lan-
guage which implies that not only is the state of nature a state of equal-
ity but that in it there is such consciousness of equality with each other

44/T.H. Green

on the part of men that they recognise the principle 'do as you would be
done by.' With Hobbes, in the supposed state of nature the 'law of na-
ture' is emphatically not observed, and hence it is a state of war. As has
been pointed out above, a 'law of nature' in the sense in which these
writers use the term, as a law which obliges but yet has no imponent in
the shape of a sovereign power, as Locke says (§ 1 36), 'is no where to be
found but in the minds of Men' ; it can only have its being in the con-
sciousness of those subject to it. If therefore we are to suppose a state of
nature in which such a law of nature exists, it is more consistent to
conceive it in Locke's way than in Hobbes ' ; more consistent to conceive
it as one in which men recognise duties to each other than as a helium
omnium contra omnes.

58. From his conception of what men are in the state of nature, and
of the ends for which they found political societies, Locke derives cer-
tain necessary limitations of what the supreme power in a common-
wealth may rightfully do. The prime business of the political society,
once formed, is to establish the legislative power. This is 'sacred and
unalterable in the hands where the Community have once placed it'
(§134); 'unalterable,' i.e., as we gather from the sequel, by anything
short of an act of the community which originally placed it in these
hands. But as men in a state of nature have no 'Arbitrary Power' (§8)
over each other (which must mean that according to the 'law of nature'
they have no such power), so they cannot transfer any such power to the
community nor it to the legislature. No legislature can have the right to
destroy, enslave or designedly impoverish the subjects. And as no legis-
lature can be entitled to do anything which the individual in the state of
nature would not by the law of nature be entitled to do, so its great
business is to declare the law of nature in general terms and administer
it by known authorised judges. The state of nature, Locke seems to
think, would have done very well, but for the inconvenience of every
man being judge in his own case of what the law of nature requires. Itis
to remedy this inconvenience by establishing (1) a settled law, received
by common consent, (2) a known and indifferent judge, (3) a power to
enforce the decisions of such a judge, that political society is formed
(§87).

Hence a legislature violates the 'trust that is put in them by the
Society' unless it observes the following rules: (1) to govern by estab-
lished promulgated laws, not to be varied to suit particular interests ; (2)
these laws are to be designed only for the good of the people; (3) it must

Principles of Political Obligation/45

not raise taxes but by consent of the people through themselves or depu-
ties; (4) it 'neither must nor can transfer the Power of making Laws to
any Body else, or place it anywhere but where the People have' (§142).

59. Thus 'the Legislative being only a Fiduciary Power to act for
certain ends, there remains still in the People a Supream Power to re-
move or alter the Legislative...' (§149). Subject to this ultimate 'sover-
eignty' (a term which Locke does not use) of the people, the legislative
is necessarily the supreme power, to which the executive is subordinate.
An appearance to the contrary can only arise in cases where (as in En-
gland) the supreme executive power is held by a person who has also a
share in the legislative. Such a person 'in a very tolerable sense may
also be called Supream...' (§ 151). It is not, however, to him as supreme
legislator (which he is not, but only a participator in supreme legisla-
tion) but to him as supreme executor of the law that oaths of allegiance
are taken. It is only as executing the law that he can claim obedience
(§151), his executive power being, like the power of the legislative, 'a
Fiduciary Trust, placed in him' (§156) to enforce obedience to law and
that only.

This distinction of the supreme power of the people from that of the
supreme legislative and the supreme executive, corresponding to a dis-
tinction between the act of transferring individual powers to a society
and the subsequent act by which that society establishes a particular
form of government, enables Locke to distinguish what Hobbes had
confounded, dissolution of government and dissolution of political soci-
ety.

60. He gets rid of Hobbes' notion, that because the 'covenant of all
with all,' by which a government is established, is irrevocable, therefore
the government once established is unalterable. He conceives the origi-
nal pact merely as an agreement to form a civil society, which must
indeed have a government, but not necessarily always the same govern-
ment. The pact is a transfer by individuals of their natural rights to a
society, and can only be cancelled through the dissolution of the society
by foreign conquest. The delegation by the society of legislative and
executive powers to a person or persons is a different matter. The soci-
ety always retains the right, according to Locke, of resuming the powers
thus delegated, and must exercise the right in the event either of the
legislative being altered, placed in different hands from those originally
intended, of a collision between its executive and legislative officers, or
of a breach between different branches of the legislature (when as in

46/T.H. Green

England there are such different branches), or when legislative and ex-
ecutive or either of them 'act contrary to their trust.' He thus in effect
vindicates the right of revolution, ascribing to a 'sovereign people' the
attributes which Hobbes assigned to a 'person' single or corporate on
which the people forming a society were supposed by an irrevocable act
to have devolved their powers. In other words, he considered the whole
civil society in all cases to have the rights which Hobbes would only
have allowed it to possess where the government was not a monarchy or
aristocracy but a democracy; i.e., where the supreme 'person' on to
which all devolve their several personae is an 'assembly of all that will
come together.' As such a democracy did not then exist in Europe, any
more than it does now, except in some Swiss cantons, the practical dif-
ference between the two views was very great. Both Locke and Hobbes
wrote with a present political object in view, Hobbes wishing to con-
demn the Rebellion, Locke to justify the Revolution. For practical pur-
poses, Locke's doctrine is much the better; but if Hobbes' translation of
the irrevocability of the covenant of all with all into the illegitimacy of
resistance to an established government in effect entitles any tyrant to
do as he likes, on the other hand, itis impossible upon Locke's theory to
pronounce when resistance to a de facto government is legitimate or
otherwise. It would be legitimate according to him when it is an act of
the 'sovereign people' (not that Locke uses the phrase), superseding a
government which has been false to its trust. But this admitted, all sorts
of question arise as to the means of ascertaining what is and what is not
an act of the 'sovereign people.'

61. The rapid success of the Revolution without popular disorder
prevented these questions from becoming of importance, but in the pres-
ence of such sectarian enthusiasm as existed in Hobbes' time they would
have become dangerous. Locke's theory would not any more than that
of Hobbes justify resistance to the powers that be on the part of any
body of men short of the civil society acting as a whole, i.e., by a major-
ity. The sectaries of the time of the Rebellion, in pleading a natural or
divine right to resist the orders of the government, would have been as
much condemned by Locke's theory as by Hobbes'. But who can say
when any popular action by which established powers, legislative or
executive, are resisted or altered is an act of the 'sovereign people,' of
the civil society acting as a whole or no? Where government is demo-
cratic, in Hobbes' sense, i.e., vested in an assembly of all who will come
together, the act of the 'sovereign people' is unmistakeable. Itis the act

Principles of Political Obligation/47

of the majority of such an assembly. But in such a case the difficulty
cannot arise. There can be no withdrawal by the sovereign people of
power from its legislative or executive representatives, since it has no
such representatives. In any other case it would seem impossible to say
whether any resistance to or deposition of an established legislative or
executive is the act of the majority of the society or no. Any sectary or
revolutionary may plead that he has the 'sovereign people' on his side.
If he fails, it is not certain that he has them not on his side ; for it may be
that, though he has the majority of the society on his side, yet the society
has allowed the growth within it of a power which prevents it from
giving effect to its will. On the other hand, if the revolution succeeds, it
is not certain that it had the majority on its side when it began, though
the majority may have come to acquiesce in its result. In short, on Locke's
principle that any particular government derives its authority from an
act of the society, and the society by a like act may recall the authority,
how can we ever be entitled to say that such an act has been exercised?
62. It is true that there is no greater difficulty about supposing it to
be exercised in the dissolution than in the establishment of a government
indeed not so much but the act of first establishing a government is
thrown back into an indefinite past. It may easily be taken for granted
without inquiry into the conditions of its possibility. On the other hand,
as the act of legitimately dissolving a government or superseding one by
another has to be imagined as taking place in the present, the inquiry
into the conditions of its possibility cannot well be avoided. If we have
once assumed with Hobbes and Locke that the authority of government
is derived from a covenant of all with all — either directly or mediately
by a subsequent act in which the covenanted society delegates its pow-
ers to a representative or representatives — it will follow that a like act is
required to cancel it, and the difficulties of conceiving such an act under
the conditions of the present are so great, that Hobbes' view of the origi-
nal act by which any Government was established as irrevocable has
much to say for itself. If the authority of any government its claim on
our obedience — is held to be derived not from an original, or from any,
covenant but from the function which it serves in maintaining those
conditions of freedom which are conditions of the moral life, then no act
of the people in revocation of a prior act need be reckoned necessary to
justify its dissolution. If it ceases to serve this function, it loses its claim
on our obedience. It is aparekbaois [corruption]. (Here again the Greek
theory, deriving the authority of government not from consent but from

48/T.H. Green

the end it serves, is sounder than the modern.) Whether or no any par-
ticular government has on this ground lost its claim and may be rightly
resisted is a question, no doubt, difficult for the individual to answer
with certainty. In the long run, however, it seems generally if not always
to answer itself. A government no longer serving the function described —
which, it must be remembered, is variously served according to circum-
stances brings forces into play which are fatal to it. But if it is difficult
upon this theory for the individual to ascertain, as a matter of specula-
tion, under any particular circumstances whether resistance to an estab-
lished government is justified or no, at any rate upon this theory such a
justification of resistance is possible. Upon Locke's theory, the condi-
tion necessary to justify it viz. an act of the whole people governed is
one which, anywhere except in a Swiss canton, would be impossible to
fulfil. For practical purposes Locke comes to a right result by ignoring
this impossibility. Having supposed the reality of one impossible event —
the establishment of government by compact or by act of a society
founded on compact — he cancels this error in the result by supposing
the possibility of another transaction equally impossible viz. the collec-
tive act of a people dissolving its government.

63. It is evident from the chapter on dissolution of government [XIX]
that he did not seriously contemplate the conditions under which such
an act could be exercised. What he was really concerned about was to
dispute 'the right divine of kings to govern wrong, on the part of a
legislative as much as on the part of an executive power; to maintain the
principle that government is only justified by being for the good of the
people, and to point out the difference between holding that some gov-
ernment is necessarily for the good of the people and holding that any
particular government is for their good a difference which Hobbes had
ignored. In order to do this, starting with the supposition of an actual
deed on the part of a community establishing a government, he had to
suppose a reserved right on the part of the community by a like deed to
dissolve it. But in the only particular case in which he contemplates a
loss by the legislature of representative character he does not suggest
the establishment of another by an act of the whole people. He saw that
the English Parliament in his time could not claim to be such as it could
be supposed that the covenanting community originally intended it to
be. See the notable passage in §157:

... it often comes to pass, that in governments, where part

Principles of Political Obligation/49

of the Legislative consists of Representatives chosen by the
People, that in tract of time this Representation becomes very
unequal and disproportionate to the reasons it was first estab-
lished upon... [T]he bare Name of a Town, of which there re-
mains not so much as the mines, where scarce so much Hous-
ing as a Sheep-coat; or more Inhabitants than a Shepherd is to
be found, sends as many Representatives to the grand Assem-
bly of Law-makers, as a whole County numerous in People,
and powerful in riches. This Strangers stand amazed at, and
everyone must confess needs a remedy. Though most think it
hard to find one, because the Constitution of the legislative be-
ing the original and supream act of the Society, antecedent to
all positive Laws in it, and depending, wholly on the People, no
inferiour Power can alter it. And therefore the people when the
Legislative is once Constituted, having in such a government as
we have been speaking of, no Power to act as long as the gov-
ernment stands; this inconvenience is thought incapable of a
remedy.

The only remedy which he suggests is not an act of the sovereign
people, but an exercise of prerogative on the part of the executive, in the
way of redistributing representation, which would be justified by salus
populi suprema est lex [the good of the people is the highest law'].

E. Rousseau

64. That 'sovereignty of the people,' which Locke looks upon as held in
reserve after its original exercise in the establishment of government,
only to be asserted in the event of a legislature proving false to its trust,
Rousseau supposes to be in constant exercise. Previous writers had
thought of the political society or commonwealth, upon its formation by
compact, as instituting a sovereign. They differed chiefly on the point
whether the society afterwards had or had not a right of displacing an
established sovereign. Rousseau does not think of the society, civitas or
commonwealth, as thus instituting a sovereign, but as itself in the act of
its formation becoming a sovereign and ever after continuing so.

65. In his conception of a state of nature, Rousseau does not differ
from Locke. He conceives the motive for passing out of it, however,
somewhat differently and more after the manner of Spinoza. With Locke
the motive is chiefly a sense of the desirability of having an impartial

50/T.H. Green

judge, and efficient enforcement, of the law of nature. According to
Rousseau, the social pact takes place when men find the hindrances to
their preservation in a state of nature too strong for the forces which
each individual can bring to bear against them. This recalls Spinoza's
view of the jus in naturam [right in nature] as acquired by a combina-
tion of the forces of individuals in civil society.

66. The 'problem of which the social contractis a solution' Rousseau
states thus: 'To find a form of association which protects with the whole
common force the person and property of each associate, and in virtue
of which everyone, while uniting himself to all, only obeys himself and
remains as free as before' (Contrat Social, I, vi). The terms of the con-
tract which solves this problem Rousseau states thus: 'Each of us throws
into the common stock his person and all his faculties under the supreme
direction of the general will and we accept each member as an indivis-
ible part of the whole.' There results from this act of association, in
place of the several persons of the several contracting parties, a 'collec-
tive moral body, composed of as many members as there are voices in
the assembly which body receives from this act its unity, its common
self, its life, and its will...' It is called by its members a state when it is
passive, a sovereign when it is active, a power when compared with
similar bodies. The associates are called collectively a people, severally
citizens as sharing in the sovereign authority, subjects as submitted to
the laws of the state (I, vi). Each of them is under an obligation in two
relations, 'as a member of the sovereign body towards the individuals,
and as a member of the state towards the sovereign.' All the subjects
can by a public vote be placed under a particular obligation towards the
sovereign, but the sovereign cannot thus incur an obligation towards
itself. It cannot impose any law upon itself which it cannot cancel. Nor
is there need to restrict its powers in the interest of the subjects. For the
sovereign body, being formed only of the individuals which constitute it,
can have no interest contrary to theirs. 'From the mere fact of its exist-
ence, it is always all that it ought to be' (since, from the very fact of its
institution, all merely private interests are lost in it). On the other hand,
the will of the individual (his particular interest as founded upon his
particular desires) may very well conflict with that general will which
constitutes the sovereign. Hence the social pact necessarily involves a
tacit agreement, that anyone refusing to conform to the general will
shall be forced to do so by the whole body politic; in other words, 'shall
be forced to be free,' since the universal conformity to the general will is

Principles of Political Obligation/51

the guarantee to each individual of freedom from dependence on any
other person or persons (I, vii).

67. The result to the individual may be stated thus. He exchanges
the natural liberty to do and get what he can a liberty limited by his
relative strength for a liberty at once limited and secured by the general
will; he exchanges the mere possession of such things as he can get a
possession which is the effect of force for a property, founded on a
positive title, on the guarantee of society. At the same time he becomes
a moral agent. Justice instead of instinct becomes the guide of his ac-
tions. For the moral slavery to appetite he substitutes the moral freedom
which consists in obedience to a self-imposed law. Now for the first
time it can be said that there is anything which he ought to do, as distin-
guished from that which he is forced to do (I, viii).

68. Such language makes it clear that the sovereignty of which
Rousseau discusses the origin and attributes, is something essentially
different from the supreme coercive power which previous writers on
the 'jus civile' ['civil law'] had in view. A contemporary of Hobbes had
said that

'there's on earth a yet auguster thing.

Veiled though it be, than Parliament and King.'

It is to this 'auguster thing,' not to such supreme power as English
lawyers held to be vested in 'Parliament and King,' that Rousseau's
account of the sovereign is really applicable. What he says of it is what
Plato or Aristotle might have said of the theios nous [divine intelli-
gence] , which is the source of the laws and discipline of the ideal polity
and what a follower of Kant might say of the 'pure practical reason,'
which renders the individual obedient to a law of which he regards him-
self, in virtue of his reason, as the author, and causes him to treat hu-
manity equally in the person of others and in his own always as an end,
never merely as a means. But all the while Rousseau himself thinks that
he is treating of the sovereign in the ordinary sense of some power of
which it could be reasonably asked how it was established in the part
where it resides, when and by whom and in what way it is exercised. His
reader more or less familiar with the legal conception of sovereignty but
not at all with that of practical, reason or of a 'general will' — a common
ego, which wills nothing but what is for the common good — is pretty
sure to retain the idea of supreme coercive power as the attribute of

52/T.H. Green

sovereignty and to ignore the attribute of pure disinterestedness, which,
according to Rousseau, must characterise every act that can be ascribed
to the sovereign.

69. The practical resuU is a vague exaUation of the prerogatives of
the sovereign people, without any corresponding limitation of the condi-
tions under which an act is to be deemed that of the sovereign people.
The justifiability of laws and acts of government, and of the rights which
these confer, comes to be sought simply in the fact that the people wills
them, not in the fact that they represent a true volont g n rale [general
will], an impartial and disinterested will for the common good. Thus the
question of what really needs to be enacted by the state in order to se-
cure the condition under which a good life is possible, is lost sight of in
the quest for majorities; and as the will of the people in any other sense
than the measure of what the people will tolerate is really unascertain-
able in the great nations of Europe, the way is prepared for the sophist-
ries of modern political management, for manipulating electoral bodies,
for influencing elected bodies, and procuring plebiscites.

70. The incompatibility between the ideal attributes which Rousseau
ascribes to the sovereign and any power that can actually be exercised
by any man or body of men becomes clearer as we proceed. He ex-
pressly distinguishes sovereignty' from 'power,' and on the ground of
this distinction holds that it cannot be alienated, represented, or divided.
'Sovereignty being simply the exercise of the general will can never be
alienated, and the sovereign, who is only a collective being, can only be
represented by himself. Power can be transmitted, but not will' (II, i). In
order to the possibility of a representation of the general will, there must
be a permanent accord between it and the individual will or wills of the
person or persons representing it. But such permanent accord is impos-
sible (lb.). Again, a general will is from the nature of the case indivis-
ible. It is commonly held to be divided, not, indeed, in respect of its
source, but in respect of the objects to which its acts are directed, e.g.
into legislative and executive powers; into rights of taxation, of war, of
justice, etc. But this supposed division of sovereign powers or rights
implies that 'what are only emanations from the sovereign authority are
taken to be parts of it' (II, ii). The only exercise of sovereign power,
properly so called, is in legislation, and there is no proper act of legisla-
tion except when the whole people comes to a decision with reference to
the whole people. Then the matter decided on is as general as the will
which decides on it; and this is what constitutes a law (II, vi). By this

Principles of Political Obligation/53

consideration several questions are answered. Whose office is it to make
laws? It is that of the general will, which can neither be alienated nor
represented. Is the prince above the law? The answer is, He is a member
of the state, and cannot be so. Can the law be unjust? No one can be
unjust to himself: therefore not the whole people to the whole people.
How can we be free and yet subject to the laws? The laws are the regis-
ter of our own will (II, vi).

Laws, in short, are properly those general 'conditions of civil asso-
ciation' which the associates impose on themselves. Where either of the
specified conditions is lacking, where either it is not the universal will
from which an ordinance proceeds or it is not the whole people to which
it relates, it is not a law but a decree, not an act of sovereignty but of
magistracy (II, vi).

71. This leads to a consideration of the nature and institution of
magistracy or government (III, i). The government is never the same as
the sovereign. The two are distinguished by their functions, that of the
one being legislative, that of the other executive. Even where the people
itself governs, its acts of government must be distinguished from its acts
of sovereignty the latter, the former having a particular, a general refer-
ence. Government is the exercise according to law of the executive power,
and the 'prince' or 'magistrate' is the man or body of men charged with
this administration; 'a body intermediary between the subjects and the
sovereign, charged with the execution of the laws, and with the mainte-
nance of civil and political freedom' (lb.). Where all or most of the
citizens are magistrates, or charged with the supreme functions of gov-
ernment, we have a democracy where a few, an aristocracy; where one
is so charged, a monarchy (III, iii). The differences depend, not as Hobbes
and others had supposed, on the quarter where the sovereignty resides —
for it must always reside in the whole body of people — but on that in
which government resides. The idea of government is that the dominant
will of the prince should be the general will or law, that it should be
simply the public force by which that general will is brought to bear on
individuals or against other states, serving the same purpose in the state
as the union of soul and body in the individual (III, i); and this idea is
most likely to be satisfied under a democracy. There, the general will (if
there is a general will, which the democracy is no guarantee for there
being, according to Rousseau's distinction between the volont g n rale
and volont de tous [will of all], of which more hereafter) cannot fail to
coincide with the dominant will of the government. The prevalence of

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particular interests may prevent there being a will at all of the kind
which Rousseau would count general or truly sovereign, but they can-
not be more prevalent in the magistracy, constituted by the whole people,
than in the same people acting in the way of legislation. In a democracy,
therefore, the will of the sovereign, so far as there is a sovereign in the
proper sense, necessarily finds expression in the will of the magistracy.
On the other hand, though under either of the other forms of government
there is danger of collision between sovereign and government, yet the
force of the government is greater than in a democracy. It is greatest
when the government is a monarchy because under all other forms there
is more or less discrepancy between the individual wills of the several
persons composing the government, as directed to the particular good of
each, and the corporate will of the government of which the object is its
own efficiency, and under a monarchy this source of weakness is avoided
(III, ii). As there is more need of force in the government in proportion
to the number of subjects whose particular wills it has to control, it
follows that monarchy is best suited to the largest, democracy to the
smallest states (III, iii).

72. As to the institution of government, Rousseau maintains strenu-
ously that it is not established by contract. 'There is only one contract in
the state, viz. that of the original association: and this excludes every
other. No other public contract can be imagined which would not be a
violation of the first' (III, xvi). Even when government is vested in an
hereditary body, monarchic or aristocratic, this is merely a provisional
arrangement, made and liable to be reversed by the sovereign, whose
officers the governors are. The act by which government is established
is twofold, consisting first of the passing of a law by the sovereign, to
the effect that there shall be a government; secondly of an act in execu-
tion of this law, by which the governors — the 'magistrates' are appointed.
But it may. be asked. How can the latter act, being one not of sover-
eignty, but of magistracy (for it has a particular reference in the desig-
nation of the governors), be performed when as yet there is no govern-
ment? The answer is that the people resolves itself from a sovereign
body into a body of magistrates, as the English Parliament resolves
itself constantly from a legislative body into a committee. In other words,
by a simple act of the general will a democracy is for the time estab-
lished, which then proceeds either to retain the government in its own
hands, or place it in those of an officer or officers according to the form
in which the sovereign has decided to establish the government (III,

Principles of Political Obligation/55

xvii). Acts similar to that by which the government was originally con-
stituted need to be periodically repeated in order to prevent the govern-
ment from usurping the function of the sovereign, i. e. the function of
legislation. (Could this usurpation occur under a democracy?) In order
that the sovereignty may not fall into abeyance, it must be exercised,
and it can only be exercised in assemblies of the whole people. These
must be held periodically, and at their opening two questions ought to be
submitted; one, whether it pleases the sovereign to maintain the present
form of government; the other, whether it pleases the people to leave the
administration in the hands of those at present charged with it (III, xviii).
Such assemblies are entitled to revise and repeal all previously enacted
laws. A law not so repealed the sovereign must be taken tacitly to con-
firm, and it retains its authority. But as the true sovereign is not any law
but the general will, no law, even the most fundamental, can be exempt
from liability to repeal. Even the social pact itself might legitimately be
dissolved, by agreement of all the citizens assembled (III, xviii). (Whether
unanimity is necessary for the purpose is not specified.) Without such
assemblies there can be no exercise of the general will (which, as before
stated, cannot be represented), and consequently no freedom. 'The En-
glish people, e.g., is quite mistaken in thinking itself free. It is only free
while the election of members of Parliament is going on. As soon as
they are elected, it is in bondage, it is nothing. In the short moments of
its freedom it makes such a bad use of it that it well deserves to lose it'

(III, XV).

73. It appears from the above that, according to Rousseau, the gen-
eral will, which is the true sovereign, can only be exercised in assem-
blies of the whole people. On the other hand, he does not hold that an act
of such an assembly is necessarily an act of the general will. After tell-
ing us that the 'general will is always right, and always tends to the
public good,' he adds, 'but it does not follow that the deliberations of
the people have always the same rectitude... There is often a great dif-
ference between the will of all and the general will. The latter only looks
to the common interest; the other looks to private interests, and is only a
sum of the wills of individuals' (II, iii). Again (II, iv), 'that which
generalises the will is not so much the number of voices as the common
interest which unites them.' He holds apparently that in the assembly of
the whole people, if they had sufficient information, and if no minor
combinations of particular interests were formed within the entire body,
the difference between the wills of individuals would neutralise each

56/T.H. Green

other, and the vote of the whole body would express the true general
will. But in fact in all assemblies there is at least a liability to lack of
information and to the formation of cliques ; and hence it cannot be held
that the vote of the assembly necessarily expresses the 'general will.'
Rousseau, however, does not go so far as to say that unless the law is
actually such as contributes to the common good, it is not an expression
of the general will. The general will, according to him, always aims at
or wills the common good, but is liable to be mistaken as to the means of
attaining it. 'It is always right, but the judgment which guides it is not
always enlightened... Individuals see the good which they reject; the
public wills the good which it does not see' (II, vi). Hence the need of a
guide in the shape of a great lawgiver. Apparently, however, the pos-
sible lack of enlightenment on the part of the 'general will' does not, in
Rousseau's view, prevent its decisions from being for the public good.
In discussing the 'limits of the sovereign power' he maintains that there
can be no conflict between it and the natural right of the individual,
because, 'although it is only that part of his power, his goods, his free-
dom, of which the use is important to the community that the individual
transfers to the sovereign by the social pact, yet the sovereign alone can
be judge of the importance'; and the sovereign 'cannot lay on the sub-
jects any constraint which is not for the good of the community.' 'Under
the law of reason' (which is thus identified with the general will) 'noth-
ing is done without a cause, any more than under the law of nature' (II,
iv).

74. But though even an unenlightened 'general will' is the general
will still, and (as we are left to infer) cannot in its decisions do otherwise
than promote the public good, Rousseau distinctly contemplates the
possibility of the 'general will' being so overpowered by particular in-
terests that it finds no expression in the votes of a popular assembly,
though the assembly be really one of a whole people, and the vote of the
majority is duly taken (IV, i). In such cases it is not that the 'general
will' is 'annihilated or corrupted; it is always constant, unalterable, and
pure.' Even in the individual whose vote is governed by his private in-
terest the 'general will' is not extinct, nor is he unaware either of what
the public good requires or of the fact that what is for the public good is
also for his own. But his share in the public evil to which he knows that
his vote will contribute, seems nothing by the side of the special private
good which he hopes to gain. By his vote, in short, he does not answer
the question. Is so and so for the advantage of the state? but. Is it for the

Principles of Political Obligation/57

advantage of this particular man or party (IV, i)?

75. The test of the dominance of the general will in assemblies of
the people is an approach to unanimity. 'Long debates, discussions, tu-
mult, indicate the ascendency of particular interests and the decline of
the state' (IV, ii). Rousseau, however, does not venture to say that abso-
lute unanimity in the assembly is necessary to an expression of the gen-
eral will, or to give a law a claim upon the obedience of the subjects.
This would have been to render effectual legislation impossible. Upon
the theory, however, of the foundation of legitimate sovereignty in con-
sent — the theory that the natural right of the individual is violated un-
less he is himself a jointimponent of the law which he is called to obey
it is not easy to see what rightful claim there can be to the submission of
a minority. Rousseau so far recognises the difficulty that he requires
unanimity in the original compact (IV, ii). If among those who are par-
ties to it there are others who oppose it, the result is simply that the latter
are not included in it. 'They are strangers among the citizens.' But this
does not explain how they are to be rightfully controlled, on the prin-
ciple that the only rightful control is founded on consent; or, if they are
not controlled, what is the value of the 'social compact.' How can the
objects of the pact be attained while those who are bound by it have
these 'strangers' living among them who are not bound by it, and who,
not being bound by it cannot be rightfully controlled? The difficulty
must recur with each generation of the descendants of those who were
parties to the original pact. The parties to the pact, it is true, have no
right to resist the general will, because the pact is ex hypothesi to the
effect that each individual, in all things of common concern, will take
the general will for his own. The true form, therefore, of the question
upon which each party to the pact should consider himself to be voting
in the assembly is, as Rousseau puts it, not 'Is the proposed measure
what I wish for, or what I approve, or no?' but 'Is it in conformity with
the general will?' If, having voted upon this question, he finds himself in
a minority, he is bound to suppose that he is mistaken in his views of the
general will, and to accept the decision of the majority as the general
will which, by the pact, he is bound to obey. So far all is consistent;
though how the individual is to be answered if he pleads that the vote of
the assembly has been too much biased by particular interest to be an
expression of the 'general will,' and that therefore it is not binding on
him, does not appear.

76. But after the first generation of those who were parties to the

58/T.H. Green

supposed original compact, what is to settle whether anyone is a party
to it or no? Rousseau faces the question, but his only answer is that
'when once the state is instituted, consent is implied in residence; to
dwell on the territory is to submit to the sovereignty' (IV, ii). This an-
swer, however, will scarcely stand examination. Rousseau himself does
not consider that residence in the same region with the original parties to
the pact renders those so resident also parties to it. Why should it do so,
when the pact has descended to a later generation? It may be argued of
course that everyone residing in a settled society, which secures him in
his rights of person and property, has the benefit of the society from the
mere fact of his residence in it, and is therefore morally bound to accept
its laws. But this is to abandon the doctrine of obligation being founded
on consent. Residence in a territory governed by a certain sovereign can
only be taken to imply consent to the rule of that sovereign, if there is
any real possibility of relinquishing it, and this there can scarcely ever
be.

77. Rousseau certainly carried out the attempt to reconcile submis-
sion to government with the existence of natural rights antecedent to the
institution of government, by the hypothesis of a foundation of govern-
ment in consent, more consistently than any other writer; and his result
shows the hopelessness of the attempt. To the consistency of his theory
he sacrifices every claim to right on the part of any state except one in
which the whole body of citizens directly legislates, i.e., on the part of
nearly all states then or now existing; and finally he can only justify the
control of the minority by the majority in any state whatever by a sub-
terfuge. It does not follow, however, because the doctrine of natural
rights and the consequent conception of government as founded on com-
pact are untenable, that there is no truth in the conception of the state or
sovereign as representing a 'general will,' as authorised or entitled to
obedience on that account. It is this conception, as the permanently valu-
able thing in Rousseau, that we have now further to consider.

78. The first remark upon it which suggests itself is that, as Rousseau
puts the matter, there may be an independent political society in which
there is no sovereign power at all, or in which, at any rate, it is not
exercised. The sovereign is the 'general will.' But the general will can
only be exercised through the assembly of a whole people. The neces-
sary conditions of its exercise, then, in Rousseau's time, were only ful-
filled in the Swiss cantons and (perhaps) in the United Provinces. In
England they were fulfilled in a way during the time of a general elec-

Principles of Political Obligation/59

tion. But even where these conditions were fulfilled, it did not follow
that the 'general will' was put in force. It might be overpowered, as in
the Roman comitia, by particular interests. Is it then to be understood
that, according to Rousseau, either there could be independent states
without any sovereignty in actual exercise, or that the European 'states'
of his time, and equally the great states of the present day for in none of
these is there any more exercise of the general will than in the England
of his time — are not properly states at all?

79. We may try to answer this question by distinguishing sovereign
de facto from sovereign dejure, and saying that what Rousseau meant
was that the 'general will,' as defined by him and as exercised under the
conditions which he prescribes, was the only sovereign dejure, but that
he would have recognised in the ordinary states of his time a sovereign
de facto; that in the same way, when he describes the institution of gov-
ernment as arising out of a twofold act consequent on the original pact
an act in which the sovereign people first decides that there shall be a
government and then, not as a sovereign people, but as a democratic
magistracy, decides in what hands the government shall be placed he
does not conceive himself to be describing what has actually taken place,
but what is necessary to give a government a moral title to obedience.
Whether Rousseau himself had this distinction in view is not always
clear. At the outset he states his object thus: 'Man is born free, and
everywhere he is in fetters. How has this change come about? I do not
know. What can render it legitimate? That is a question which I deem
myself able to answer' (I, i). The answer is the account of the establish-
ment of a sovereign by social pact. It might be inferred from this that he
considered himself in the sequel to be delineating transactions to the
actual occurrence of which he did not commit himself, but which, if
they did occur, would constitute a duty as distinct from a physical ne-
cessity of submission on the part of subjects to a sovereign, and to which
some equivalent must be supposed, in the shape of a tacit present con-
vention on the part of the members of a state if their submission is to be
matter of duty as distinct from physical necessity or is to be claimed as
a matter of right by the ostensible sovereign. This, however, would merely
be an inference as to his meaning. His actual procedure is to describe
transactions, by which the sovereignty of the 'general will' was estab-
lished, and by which it in turn established a government, as if they had
actually taken place. Nor is he content with supposing a tacit consent of
the people as rendering subjection legitimate. The people whose sub-

60/T.H. Green

mission to law is to be 'legitimate' must actually take part in sovereign
legislative assemblies. It is very rarely that he uses language which im-
plies the possibility of a sovereign power otherwise constituted. He does
indeed speak of the possibility of a prince in the special meaning of the
term, as representing the head of the executive — usurping sovereignty,
and speaks of the sovereignty thus usurped as existing de facto, not de
jure; but in no other connection (so far as I have observed) does he
speak of anything short of the volont g n rale exercised through the vote
of an assembled people as sovereign at all. And the whole drift of his
doctrine is to show that no sovereign, otherwise constituted, had any
claim on obedience. There was no state in Europe at his time in which
his doctrine would not have justified rebellion, and even under existing
representative systems the conditions are not fulfilled which according
to him are necessary to give laws that claim on our obedience which
arises from their being an expression of the general will. The only sys-
tem under which these conditions could be fulfilled would be one of
federated self-governing communes, small enough to allow each mem-
ber an active share in the legislation of the commune. It is probably the
influence of Rousseau that has made such a system the ideal of political
enthusiasts in France.

F. Sovereignty and the General Will

80. The questions then arise ( 1 ) whether there is any truth in Rousseau's
conception of sovereignty as founded upon a volonte generale in its
application to actual sovereignty. Does anything like such a sovereignty
exist in the societies properly called political? (2) Is there any truth in
speaking of a sovereignty de jure founded upon the volonte generale!
(3) If there is, are we to hold with Rousseau that this 'will' can only be
exercised through the votes of a sovereign people?

81. (1) The first question is one which, if we take our notions of
sovereignty from such writers as Austin, we shall be at first disposed
decidedly to negative. Austin is considered a master of precise defini-
tion. We may begin, therefore, by looking to his definition of sover-
eignty and the terms connected with it. His general definition of law
runs as follows; 'A law, in the most general and comprehensive accep-
tation in which the term, in its literal meaning, is employed, may be said
to be a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him. ' These rules are of two kinds :
laws of God, and Human law. We are only concerned with the latter.

Principles of Political Obligation/61

Human laws are again distinguished into two classes, according as they
are or are not established by political superiors. 'Of the laws orrules set
by men to men, some are established by political superiors, sovereign
and subject; by persons exercising supreme and subordinate govern-
ment, in independent nations, or independent political societies., the
aggregate of the rules established by political superiors, is frequently
styled positive law...' (I, 88-9). This is distinguished from 'positive
morality.' Laws are further explained as a species of commands. A com-
mand is 'a signification of desire,' distinguished by the fact that 'the
party to whom it is directed is liable to evil from the other, in case he
does comply not with the desire' (I, 91). This liability to evil forms the
sanction of the command. Where it 'obliges generally to acts or forbear-
ances of a class, a command is a law or rule' (1, 95).

Every positive law, or every law simply and strictly so called, is set
by a sovereign person, or a sovereign body of persons, to a member or
members of the independent political society wherein that person or body
is sovereign or supreme. Or (changing the expression) it is set by a
monarch, or sovereign number, to a person or persons in a state of sub-
jection to its author. Even though it sprung directly from another foun-
tain or source, it is a positive law, or a law strictly so called, by the
institution of that present sovereign in the character of political supe-
rior. Or (borrowing the language of Hobbes) 'the legislator is he, not by
whose authority the law was first made, but by whose authority it con-
tinues to be a law.' (1, 225-6)

The notions of sovereignty and independent political society may be
expressed concisely thus. If a determinate human superior, not in a habit
of obedience to a like superior, receive habitual obedience from the bulk
of a given society that determinate superior is sovereign in that society
and the society (including the superior) is a society political and inde-
pendent. (I, 226)

In order that a given society may form a society political and inde-
pendent, the two distinguishing marks which I have mentioned above
must unite. The generality of the given society must be in a habit of
obedience to a determinate and common superior; whilst that determi-
nate person, or determinate body of persons, must not be habitually
obedient to a determinate person or body. It is the union of that positive ,

62/T.H. Green

with this negative mark, which renders that certain superior sovereign
or supreme, and which renders that given society (including that certain
superior) a society political and independent. (I, 227)

82. It may be remarked in passing that, according to the above,
while every law implies a sovereign, from whom directly or indirectly
(through a subordinate political superior) it proceeds, it is not necessary
to a sovereign that his commands should take the form of laws, as op-
posed to 'occasional or particular commands' (1, 95). A superior might
signify his desires only in the form of such particular and occasional
commands, and yet there might be a habit of obedience to him, and he
might not be habitually obedient to any other person or body; in which
case he would be a 'sovereign.'

83. Austin's doctrine seems diametrically opposed to one which finds
the sovereign in a volont g n rale, because (a) it only recognises sover-
eignty in a determinate person or persons, and (b) it considers the es-
sence of sovereignty to lie in the power, on the part of such determinate
person or persons, to put compulsion without limit on subjects, to make
them do exactly as it pleases. The volonte generale, on the other hand,
it would seem, cannot be identified with the will of any determinate
person or persons; it can, indeed, according to Rousseau, only be ex-
pressed by a vote of the whole body of subject citizens, but when you
have got them together there is no certainty that their vote does express
it; and it does not — at any rate necessarily — command any power of
compulsion, much less unlimited power. Rousseau expressly contem-
plates the possibility of the executive power conflicting with and over-
bearing the 'general will.' Indeed according to his view it was the ordi-
nary state of things, and though this view may be exaggerated, no one
could maintain that the 'general will,' in any intelligible sense of the
words, had always unlimited force at its command.

84. The two views thus seem mutually exclusive, but perhaps it
may be by taking each as complementary to the other that we shall gain
the truest view of sovereignty, as it actually exists. In those states of
society in which obedience is habitually rendered by the bulk of society
to some determinate superior, single or corporate, who in turn is inde-
pendent of any other superior, the obedience is so rendered because this
determinate superior is regarded as expressing or embodying what may
properly be called the general will, and is virtually conditional upon the
superior being so regarded. It is by no means an unlimited power of

Principles of Political Obligation/63

compulsion that the superior exercises, but one dependent in the long
run, or dependent for the purpose of insuring an habitual obedience,
upon conformity to certain convictions on the part of the subjects as to
what is for their general interest. As Maine says (Early History of Insti-
tutions [Lecture XII], p. 359), 'The vast mass of influences, which we
may call for shortness moral, perpetually shapes, limits, or forbids the
actual direction of the forces of society by its Sovereign.' Thus, quite
apart from any belief in the right of revolution, from the view that the
people in any state are entitled to an ultimate sovereignty, or are sover-
eign de jure, and may withdraw either legislative or executive power
from the hands in which it has been placed in the event of its being
misused, it may fairly be held that the ostensible sovereign — the deter-
minate person or persons to whom we can point and say that with him or
them lies the ultimate power of exacting habitual obedience from the
people is only able to exercise this power in virtue of an assent on the
part of the people, nor is this assent reducible to the fear of the sovereign
felt by each individual. It is rather a common desire for certain ends
specially the 'pax vitaeque secuitas' ['peace and security of life'] to
which the observance of law or established usage contributes, and in
most cases implies no conscious reference on the part of those whom it
influences to any supreme coercive power at all. Thus when it has been
ascertained in regard to any people that there is some determinate per-
son or persons to whom in the last resort they pay habitual obedience,
we may call this person or persons sovereign if we please, but we must
not ascribe to him or them the real power which governs the actions and
forbearances of the people, even those actions and forbearances (only a
very small part) which are prescribed by the sovereign. This power is a
much more complex and less determinate, or rather less easily determin-
able, thing; but a sense of possessing common interests, a desire for
common objects on the part of the people, is always the condition of its
existence. Let this sense or desire which may properly be called general
will — cease to operate, or let it come into general conflict with the
sovereign's commands, and the habitual obedience will cease also.

85. If, then, those who adopt the Austinian definition of a sovereign
mean no more than that in a thoroughly developed state there must be
some determinate person or persons, with whom in the last resort lies
the recognised power of imposing laws and enforcing their observance,
over whom no legal control can be exercised, and that even in the most
thorough democracy where laws are passed in the assembly of the whole

64/T.H. Green

people, it is still with determinate persons, viz. a majority of those who
meet in the assembly, that this power resides, they are doubtless right.
So far they only need to be reminded that the thoroughly developed
state, as characterised by the existence of such definite sovereignty, is
even among civilised people but imperfectly established. It is only per-
fectly established (1) where customary or 'common' or 'judge-made'
law, which does not proceed from any determinate person or persons, is
either superseded by express enactments that do proceed from such per-
son or persons, or (as in England) is so frequently trenched upon by
statute law that it may fairly be said only to survive upon sufferance, or
to be itself virtually enacted by the sovereign legislature and (2) where
no question of right can be raised between local legislatures or authori-
ties and the legislature claiming to be supreme (as in America before the
war of secession, and as might perhaps be found to be the case in Ger-
many now, if on certain educational and ecclesiastical matters the Impe-
rial legislature came to be at issue with the local legislatures). But though
the organisation of the state, even in civilised and independent nations,
is not everywhere complete, it no doubt involves the residence with a
determinate person or persons, or a body or bodies, of supreme — i.e.,
legally uncontrolled power to make and enforce laws. The term 'sover-
eign,' having acquired this definite meaning, Rousseau was misleading
his readers when he ascribed sovereignty to the 'general will.' He could
only be understood as meaning, and in fact understood himself to mean,
that there was no legitimate sovereign except in the most thorough de-
mocracy, as just described.

86. But the Austinians, having found their sovereign, are apt to
regard it as a much more important institution than, if it is to be identi-
fied with a determinate person or persons, it really is; they are apt to
suppose that the sovereign, with the coercive power (i.e., the power of
operating on the fears of the subjects) which it exercises, is the real
determinant of the habitual obedience of the people at any rate of their
habitual obedience in respect of those acts and forbearances which are
prescribed by law. But, as we have seen, this is not the case. It then
needs to be pointed out that if the sovereign power is to be understood in
this fuller, less abstract sense if we mean by it the 'real determinant of
the habitual obedience of the people, ' we must look for its sources much
more widely and deeply than the 'analytical jurists' do; that it can no
longer be said to reside in a determinate person or persons, but in that
impalpable congeries of the hopes and fears of a people bound together

Principles of Political Obligation/65

by common interests and sympathy, which we call the general will.

87. It may be objected that this view of the 'general will,' as that on
which habitual obedience to the sovereign really depends, is at best only
applicable to 'self-governing' communities, not to those under a des-
potic sovereign. The answer is that it is applicable in all forms of soci-
ety where a sovereign in the sense above defined (as a determinate per-
son or persons with whom in the last resort lies the recognised power of
imposing laws and enforcing their observance) really exists, be any but
that there are many where there cannot fairly be said to such sovereign
at all; in other words, that in all organised communities the power which
practically commands the habitual obedience of the people in respect of
those acts and forbearances which are enjoined by law or authoritative
custom, is one dependent on the general will of the community, but this
power is often not sovereign in the sense in which the ruler of an inde-
pendent state is sovereign. It may very well be that there is at the same
time another power merely coercive — a power really operating on people
simply through their fears to which obedience is rendered and which is
not in turn representative of a general will; but where this is the case we
shall find that such power is only in contact with the people, so to speak,
at one or two points; that their actions and forbearances, as determined
by law and custom, are in the main independent of it; that it cannot in
any proper sense be said to be a sovereign power over them; at any rate,
not in the sense in which we speak of King, Lords, and Commons as
sovereign in England.

88. Maine has pointed out {Early History of Institutions , Lecture
XIII [p. 384]) that the great despotic empires of ancient times, exclud-
ing the Roman, of which more shall be said directly and modern empires
in the East, were in the main tax-collecting institutions. They exercise
coercive force over their subjects of the most violent kind for certain
purposes, at certain times, but they do not impose laws as distinct from
'occasional or particular commands,' nor do they judicially administer
or enforce a customary law. In a certain sense the subjects render them
habitual obedience, i.e., they habitually submit when the agents of the
empire descend on them for taxes and recruits, but in the general tenor
of their lives their actions and forbearances are regulated by authorities
with which the empire never interferes — with which probably it could
not interfere without destroying itself. These authorities can scarcely be
said to reside in a determinate person or persons at all, but so far as they
do so, they reside mixedly in priests, or exponents of customary reli-

66/T.H. Green

gion, in heads of families acting within the family, and in some village-
council acting beyond the limits of the family. Whether in such a state of
things we are to consider that there is a sovereign power at all, and, if
so, where it is to be considered to reside, are chiefly questions of words.
If complete uncontrolledness by a stronger power is essential to sover-
eignty, the local authorities just spoken of are not sovereign. The con-
quering despot could descend on them and sweep them away, leaving
anarchy in their place, and he does compel them to be put in exercise for
a particular purpose, that of raising tribute or sometimes recruits. On
the other hand, these authorities, which represent a general will of the
communities, form the power which determines such actions and for-
bearances of the individual as do not proceed from natural inclination.
The military ruler, indeed, is sovereign in the sense of possessing irre-
sistible coercive power, but in fact this power is only exercised within
narrow limits, and not at all in any legislative or judicial way. If exer-
cised beyond these limits and in conflict with customary law, the result
would be a general anarchy. The truest way of expressing the state of
the case is to say that, taking the term 'sovereign' in the sense which we
naturally associate with it and in which it is used by modern European
writers on sovereignty, there is under such conditions no sovereign, but
that the practical regulation of life, except during intervals of military
violence and anarchy, rests with authorities representing the general will,
though these are to a certain extent interfered with by an alien force.

89. The same accountis applicable to most cases of foreign domin-
ion over a people with any organised common life of their own. The
foreign power is not sovereign in the sense of being a maker or main-
tainer of laws. Law-making, under such conditions, there is properly
none. The subject people inherits laws, written or unwritten, and main-
tains them for itself, a certain shelter from violence being afforded by
the foreign power. Such, in the main, was the condition of North Italy,
for instance, under Austrian domination. Where this is the case, the
removal of the coercive power of the foreigner need not involve anar-
chy, or any violation of established rights (such as Hobbes supposes to
follow necessarily from the deposition of an actual sovereign). The so-
cial order does not depend on the foreign dominion and may survive it.
The question whether in any particular case it actually can do so must
depend on the possibility of preventing further foreign aggression, and
on the question whether there is enough national unity in the subject
people to prevent them from breaking up into hostile communities when

Principles of Political Obligation/67

the foreign dominion is removed.

90. It is otherwise where the foreign power is really a law-making
and maintaining one, and is sovereign in that proper sense, as was the
Roman Empire. But just so far as the Roman Empire was of this sover-
eign, i.e., law-making and maintaining, character, it derived its perma-
nence, its hold on the 'habitual obedience' of its subjects, from the sup-
port of the 'general will.' As the empire superseded customary or writ-
ten laws of conquered countries, it conferred rights of Roman citizen-
ship, a much more perfect system of protection in action and acquisition
than the conquered people had generally possessed before. Hence, while
nothing could be further removed from what Rousseau would have
counted liberty than the life of the citizens of the Roman Empire, for
they had nothing to do with making the laws which they obeyed, yet
probably no political system was ever more firmly grounded on the good-
will of the subjects, none in the maintenance of which the subjects felt a
stronger interest. The British power in India exercises a middle function
between that of the Roman Empire and that of the mere tax-collecting
and recruit-raising empire with which the Roman Empire has just been
contrasted. It presents itself to the subject people in the first place as a
tax-collector. It leaves the customary law of the people mostly untouched.
But if only to a very small extent a law-making power, it is emphatically
a law-maintaining one. It regulates the whole judicial administration of
the country, but applies its power generally only to enforce the custom-
ary law which it finds in existence. For this reason an 'habitual obedi-
ence' may fairly be said to be rendered by the Indian people to the En-
glish government, in a sense in which it could not be said to be rendered
to a merely tax-collecting military power; but the habitual obedience is
so rendered only because the English government presents itself to the
people, not merely as a tax-collector, but as the maintainer of a custom-
ary law, which, on the whole, is the expression of the 'general will.' The
same is true in principle of those independent states which are despoti-
cally governed, in which, i. e., the ultimate legislative power does not
reside, wholly or in part, with an assembly representing the people, or
with the people themselves; e.g. Russia. It is not the absolute coercive
power of the Czar which determines the habitual obedience of the people.
This coercive power, if put to the test as a coercive power, would prob-
ably be found very far from absolute. This habitual obedience is deter-
mined by a system of law, chiefly customary, which the administration
controlled by the Czar enforces against individuals but which corre-

68/T.H. Green

sponds to the general sense of what is equitable and necessary. If a
despotic government comes into anything like habitual conflict with the
unwritten law which represents the general will, its dissolution is begin-
ning.

91. The answer, then, to the question whether there is any truth in
Rousseau's conception of sovereignty as founded upon a volont g n
rale, in its application to actual sovereignty, must depend on what we
mean by 'sovereign.' The essential thing in political society is a power
which guarantees men rights, i.e., a certain freedom of action and ac-
quisition conditionally upon their allowing a like freedom in others. It is
but stating the same condition otherwise to speak of a power which
guarantees the members of the society these rights, this freedom of ac-
tion and acquisition, impartially or according to a general rule or law.
What is the lowest form in which a society is fit to be called political, is
hard to say. The political society is more complete as the freedom guar-
anteed is more complete, both in respect of the persons enjoying it and
of the range of possible action and acquisition over which it extends. A
family or a nomad horde could not be called a political society, on ac-
count of the narrow range of the freedoms which they severally guaran-
tee. The nomad horde might indeed be quite as numerous as a Greek
state or as the sovereign canton of Genevain Rousseau's time; butin the
horde the range within which reciprocal freedom of action and acquisi-
tion is guaranteed to the individuals is exceedingly small. It is the power
of guaranteeing rights, defined as above, which the old writers on sover-
eignty and civil government supposed to be established by covenant of
all with all, translating the common interest which men have in the main-
tenance of such a power into an imaginary historical act by which they
instituted it. It was this power that they had chiefly in view when they
spoke of sovereignty.

92. It is to be observed, however, that the power may very well exist
and serve its purpose where it is not sovereign in the sense of being
exempt from any liability of being interfered with by a stronger coercive
power, such as that of a tax-collecting military ruler. The occasional
interference of the military ruler is so far a drawback to the efficiency
with which freedom of action and acquisition is guaranteed, but does
not nullify the general maintenance of rights. On the other hand, when
the power by which rights are guaranted is sovereign (as it is desirable
that it should be) in the special sense of being maintained by a person or
persons, wielding coercive force not liable to control by any other hu-

Principles of Political Obligation/69

man force, it is not this coercive force that is the important thing about
it or that determines the habitual obedience essential to the real mainte-
nance of rights. That which determines this habitual obedience is a power
residing in the common will and reason of men, i.e., in the will and
reason of men as determined by social relations, as interested in each
other as acting together for common ends. It is a power which this 'uni-
versal' rational will exercises over the inclinations of the individual, and
which only needs exceptionally to be backed by coercive force.

93. Thus, though it may be misleading to speak of the general will
as anywhere either actually or properly sovereign, because the term 'sov-
ereign' is best kept to the ordinary usage in which it signifies a determi-
nate person or persons charged with the supreme coercive function of
the state, and the general will does not admit of being vested in a person
or persons, yet it is true that the institutions of political society — those
by which equal rights are guaranteed to members of such a society are
an expression of, and are maintained by, a general will. The sovereign
should be regarded, not in abstraction as the wielder of coercive force,
but in connection with the whole complex of institutions of political
society. It is as their sustainer, and thus as the agent of the general will,
that the sovereign power must be presented to the minds of the people if
it is to command habitual loyal obedience; and obedience will scarcely
be habitual unless it is loyal, not forced. If once the coercive power,
which must always be an incident of sovereignty, becomes the charac-
teristic thing about it in its relation to the people governed, this must
indicate one of two things; either that the general interest in the mainte-
nance of equal rights has lost its hold on the people, or that the sover-
eign no longer adequately fulfils its function of maintaining such rights,
and thus has lost the support derived from the general sense of interest
in supporting it. It may be doubted whether the former is ever really the
case; but whatever explanation of the case may be the true one, it is
certain that when the idea of coercive force is that predominantly asso-
ciated with the law -imposing and enforcing power, then either a disrup-
tion of the state or a change in the sources of sovereignty must sooner or
later take place. In judging, however, whether this is the case, we must
not be misled by words. In England, e.g., from the way in which many
people speak of 'government,' we might suppose that it was looked on
mainly as the wielder of coercive force, but it would be a mistake on
that account to suppose that English people commonly regard the laws
of the country as so much coercion, instead of as an institution in the

70/T.H. Green

maintenance of which they are interested. When they speak dyslogistically
of 'government,' they are not thinking of the general system of law but
of a central administrative agency which they think interferes mischie-
vously with local and customary administration.

94. It is more true to say that law, as the system of rules by which
rights are maintained, is the expression of a general will than that the
general will is the sovereign. The sovereign, being a person or persons
by whom in the last resort laws are imposed and enforced in the long run
and on the whole, is an agent of the general will contributes to realise
that will. Particular laws may, no doubt, be imposed and enforced by
the sovereign, which conflict with the general will not in the sense that if
all the subject people could be got together to vote upon them, a major-
ity would vote against them; that might be or might not be — but in the
sense that they tend to thwart those powers of action, acquisition, and
self-development on the part of the members of the society, which there
is always a general desire to extend though the desire may not be en-
lightened as to the best means to the end, and which it is the business of
law to sustain and extend. The extent to which laws of this kind may be
intruded into the general corpus juris [body of law] without social dis-
ruption it is impossible to specify. Probably there has never been a
civilised state in which they bore more than a very small proportion to
the amount of law which there was the strongest general interest in main-
taining. But, so far as they go, they always tend to lessen the 'habitual
obedience' of the people, and thus to make the sovereign cease to be
sovereign. The hope must be that this will result in the transfer of sover-
eignty to other hands before a 'social disruption' ensues; before the
general system of law has been so far perverted as to lose its hold on the
people. Of the possibility of a change in sovereignty without any detrac-
tion from the law-abiding habits of the people, France has lately given a
conspicuous example. Here, however it must be remembered that a tem-
porary foreign conquest made the transition easier.

95. (2) After what has been said, we need not dwell long on the
question of the tenability of the distinction between sovereignty de facto
and sovereignty de jure. It is a distinction which can only be maintained
so long as either 'sovereign' is not used in a determinate sense, or by
'jus' is understood something else than law or right established by law.
Ifby 'sovereign' we understand something short of a person or persons
holding the supreme law-making and law-enforcing power, e.g., an En-
glish king who is often called sovereign, we might say that sovereignty

Principles of Political Obligation/71

was exercised de facto but not dejure when the power of such a 'sover-
eign' was in conflict with, or was not sanctioned by, the law as declared
and enforced by the really supreme power. Thus an English king so far
as he affected to control the army or raise money without the co-opera-
tion of Parliament, might be said to be sovereign de facto but not de
jure; only, however, on the supposition that the supreme law-making
and law-enforcing power does not belong to him, and thus that he is
called 'sovereign' in other than the strict sense. If he were sovereign in
the full sense 'de facto,' he could not fail to be so 'dejure,'' i.e., legally.
In such a state of things, if the antagonism between King and Parlia-
ment continued for any length of time, it would have to be admitted that
there was no 'sovereign' as — supreme law-making and law-enforcing
power; that sovereignty in this sense was in abeyance, and that anarchy
prevailed. Or the same thing might be explained by saying that sover-
eignty still resided de jure with the King and Parliament, though not de
facto exercised by them — but if we use such language, we must bear in
mind that we are qualifying 'sovereignty' by an epithet which neutralises
its meaning as actually supreme power. If, however, the king succeeded
in establishing such a power on a permanent footing, he would have
become sovereign in the full sense, and there would be no ground for
saying, as before, that he was not sovereign de jure; for the qualifica-
tions de jure and 'not de jure,' in that sense in which they might be
applied to a power which is not supreme, are equally inapplicable to the
power of making and enforcing law which is supreme. The monarch's
newly established supremacy may be in conflict with laws that were
previously in force, but he has only to abolish those laws in order to
render it legal. If, then, it is still to be said to be not de jure, it must be
because 'jus' is used for something else than law or right established by
law; viz. either for 'natural right' as not merely = natural power, or for
certain claims which the members of the subject community have come
to recognise as inherent in the community and in themselves as members
of it — claims regarded as the foundation of law, not as founded upon it,
and with which the commands of the sovereign conflict. But even ac-
cording to this meaning of 'jus,' a sovereign in the strict Austinian sense,
that is not so de jure, is in the long run an impossibility. 'Habitual obe-
dience' cannot be secured in the face of such claims.

96. But whether or no in any qualified sense of 'sovereign' or 'jus,'
a sovereign that is not so 'de jure' is possible, once understand by 'sov-
ereign' the determinate person or persons with whom the ultimate law-

72/T.H. Green

imposing and law-enforcing power resides, and by 'jus' law, it is then
obviously a contradiction to speak of a sovereign 'de jure' as distin-
guished from one 'defacto.' Thepowerof the ultimate imponent of law
cannot be derived from or limited by law. The sovereign may no doubt
by a legislative act of its own lay down rules as to the mode in which its
power shall be exercised, but if it is sovereign in the sense supposed it
must always be open to it to alter these rules. There can be no illegality
in its doing so. In short, in whatever sense 'jus' is derived from the
sovereign, in that sense no sovereign can hold his power 'de jure.' So
Spinoza held that 'imperium' was 'dejure' indeed, but 'dejure naturaW
{'jus naturale' — natural power), which is the same as 'de jure divino';
only powers exercised in subordination to 'imperium' are 'dejurecivili.'
So Hobbes said that there could be no unjust law. A law was not a law
unless enacted by a sovereign, and the just being that to which the sov-
ereign obliges, the sovereign could not enact the unjust, though it might
enact the inequitable and the pernicious the 'inequitable' presumably
meaning that which conflicts with a 'law of nature,' the 'pernicious'
that which tends to weaken individuals or society. Rousseau retains the
same notion of the impeccability of the sovereign, but on different
grounds. Every act of the sovereign is according to him de jure, not
because all right is derived from a supreme coercive power and the
sovereign is that power, but because the sovereign is the general will
which is necessarily a will for the good of all. The enactment of the
sovereign could as little, on this view, be 'inequitable' or 'pernicious' as
it could be 'unjust. ' But this view necessitates a distinction between the
sovereign, thus conceived, and the actually supreme power of making
and enforcing law as it exists anywhere but in what Rousseau consid-
ered a perfect state. Rousseau indeed generally avoids calling this actu-
ally supreme power 'sovereign,' though he cannot, as we have seen,
altogether avoid it; and since, whatever he liked to call it, the existence
of such a power in forms which according to him prevented its equiva-
lence to the general will was almost everywhere a fact, his readers would
naturally come to think of the actually supreme power as sovereign de
facto, in distinction from something else which was sovereign de jure.
And further, under the influence of Rousseau's view that the only organ
of the general will was an assembly of the whole people, they would
naturally regard such an assembly as sovereign de jure, and any other
power actually supreme as merely sovereign de facto. This opposition,
however, really arises out of a confusion in the usage of the term 'sover-

Principles of Political Obligation/73

eign' out of inability on the one side to hold fast on the other, to the
identification of sovereign with 'general will,' keep it simply to the sense
of supreme law-making and law-enforcing power. If 'sovereign' — 'gen-
eral will,' the distinction of de facto and de jure is inapplicable to it. A
certain desire either is or is not the general will. A certain interest is or
is not an interest in the common good. There is no sense in saying that
such desire or interest is general will de jure but not de facto, or vice
versa. On the other hand, if 'sovereign' = supreme law-making and
law-enforcing power, the distinction is equally inapplicable to it. If any
person or persons have this power at all, they cannot be said to have it
merely de facto while others have it de jure.

97. It may be urged with much truth that the actual possession of
such power by a determinate person or persons is rather a convenient
hypothesis of writers on jurisprudence than an actual fact; and, as we
have seen, the actual condition of things at certain times in certain states
may conveniently be expressed by saying that there was a sovereign de
facto that was not so de jure, or vice versa, but only on the supposition
that 'sovereign' is not taken necessarily in the full sense of a supreme
law-making and enforcing power. In a state of things that can be so
described, however, there is no 'sovereignty' at all in the sense of an
actually supreme power of making and enforcing law resident in a de-
terminate person or persons. Sovereignty in this sense can, and when it
so exists, it is obvious that no other only exist de facto; can in the same
sense exist de jure. It may be denied indeed in particular cases that an
actually supreme power of making and enforcing law is exercised de
jure, in a sense of that phrase already explained [§ 95]. Reasons were
given for doubting whether a power could really maintain its sovereign
attributes if conflicting withyw^, in the same sense thus explained. But
supposing that it could, the fact that it was not exercised de jure would
not entitle us to say that any other person or persons were sovereign de
jure, without altering the meaning of 'sovereign.' If any one has su-
preme power de facto, that which any one else has cannot be supreme
power. The qualification of a power as held not de facto but de jure is
one which destroys its character as supreme, i.e., as sovereign in the
sense before us.

98. It is only through trying to combine under the term 'sovereign'
the notions of the 'general will' and of supreme power that we are led to
speak of the people as sovereign de jure, if not de facto. There would be
no harm indeed in speaking of the 'general will' as sovereign, if the

74/T.H. Green

natural association of 'sovereign' with supreme coercive power could
be got rid of; but as this cannot be, when once we have pronounced the
general will 'sovereign,' we are pretty sure to identify the general will
with a vote of the majority of citizens. A majority of citizens can be
conceived as exercising a supreme coercive power, but a 'general will'
in the sense of an unselfish interest in the common good which in vari-
ous degrees actuates men in their dealings with each other cannot be so
conceived. Thus for the sovereignty in an impalpable and unnatural
sense of the 'general will' we get a sovereignty, in the natural and de-
monstrable sense, of the multitude. But as the multitude is not every-
where supreme, the assertion of its sovereignty has to be put in the form
that it is sovereign de jure. The truth which underlies this proposition is
that an interest in common good is the ground of political society, in the
sense that without it no body of people would recognise any authority as
having a claim on their common obedience. It is so far as a government
represents to them a common good that the subjects are conscious that
they ought to obey it, i.e., that obedience to it is a means to an end
desirable in itself or absolutely. This truth is latent in Rousseau's doc-
trine of the sovereignty of the 'general will,' but he confounds with it the
proposition that no government has a claim on obedience but that which
originates in a vote passed by the people themselves who are called on
to obey (a vote which must be unanimous in the case of the original
compact, carried by a majority in subsequent cases).

99. This latter doctrine arises out of the delusion of natural right.
The individual, it is thought, having aright, not derived from society, to
do as he likes, can only forego that right by an act to which he is a party.
Therefore he has a right to disregard a law unless it is passed by an
assembly of which he has been a member and by the decision of which
he has expressly or tacitly agreed to be bound. Clearly, however, such a
natural right of the individual would be violated under the most popular
sovereignty no less than under one purely monarchical, if he happened
to object to the decision of the majority; for to say, as Rousseau says,
that he has virtually agreed, by the mere fact of residence in a certain
territory, to be bound by votes of the majority of those occupying that
territory, is a mere trick to save appearances. But in truth there is no
such natural right to do as one likes irrespectively of society. It is on the
relation to a society to other men recognising a common good — that the
individual's rights depend, as much as the gravity of abody depends on
relations to other bodies. A right is a power claimed and recognised as

Principles of Political Obligation/75

contributory to a common good. A right against society, in distinction
from a right to be treated as a member of society, is a contradiction in
terms. No one therefore has a right to resist a law or ordinance of gov-
ernment, on the ground that it requires him to do what he does not like,
and that he has not agreed to submit to the authority from which it
proceeds: and if no one person, no number of persons. If the common
interest requires it, no right can be alleged against it. Neither can its
enactment by popular vote enhance, nor the absence of such vote dimin-
ish, its right to be obeyed. Rousseau himself well says that the proper
question for each citizen to ask himself in regard to any proposal before
the assembly is not. Do I like or approve it? but. Is it according to the
general will? which is only another way of asking. Is it according to the
general interest? It is only as the organ of this general interest that the
popular vote can endow any law with the right to be obeyed; and Rousseau
himself, if he could have freed himself from the presuppositions of natu-
ral right, might have admitted that, as the popular vote is by no means
necessarily an organ of the general interest, so the decree of a monarch
or of an aristocratic assembly, under certain conditions, might be such
an organ.

100. But, it may be asked. Must not the individual judge for himself
whether a law is for the common good? and if he decides that it is not, is
he not entitled to resist it? Otherwise, not only will laws passed in the
interest of individuals or classes and against public good, have a claim
to our absolute and permanent submission, but a government systemati-
cally carried on for the benefit of a few against the many, can never be
rightfully resisted. To the first part of this question we must of course
answer 'yes,' without qualification. The degree to which the individual
judges for himself of the relation between the common good and the
laws which cross the path of his ordinary life, is the measure of his
intelligent, as distinguished from a merely instinctive, recognition of
rights in others and in the state; and on this recognition again depends
his practical understanding of the difference between mere powers and
rights as exercised by himself. Supposing then the individual to have
decided that some 'command of a political superior' is not for the com-
mon good, how ought he to act in regard to it? In a country like ours,
with a popular government and settled methods of enacting and repeal-
ing laws, the answer of common sense is simple and sufficient. He should
do all he can by legal methods to get the command cancelled, but till it is
cancelled he should conform to it. The common good must suffer more

76/T.H. Green

from resistance to a law or to the ordinance of a legal authority than
from the individual's conformity to a particular law or ordinance that is
bad, until its repeal can be obtained. It is thus the social duty of the
individual to conform, and he can have no right, as we have seen, that is
against his social duty no right to anything or to do anything, that is not
involved in the ability to do his duty.

101. But difficulties arise when either (1) it is a case of disputed
sovereignty, and in consequence the legal authority of the supposed com-
mand is doubtful; or (2) the government is so conducted that there are
no legal means of obtaining the repeal of a law; or (3) when the whole
system of law and government is so perverted by private interests hos-
tile to the public that there has ceased to be any common interest in
maintaining it; or (4) — a more frequent case when the authority from
which the objectionable command proceeds is so easily separable from
that on which the general maintenance of social order and the fabric of
settled rights depends, that it can be resisted without serious detriment
to this order and fabric. In such cases, may there not be a right of resis-
tance based on a 'higher law' than the command of the ostensible sover-
eign?

102. (1) As to cases where the legal authority of the supposed com-
mand is doubtful. In modern states the definition of sovereignty — the
determination of the person or persons with whom the supreme power
of making and enforcing law legally resides — has only been arrived at
by a slow process. The European monarchies have mostly arisen out of
the gradual conversion of feudal superiority into sovereignty in the strict
sense. Great states such as Germany and Italy have been formed by the
combination of independent or semi-dependent states. In England the
unity of the state goes back much further than anywhere else, but in
England it was but gradually that the residence of sovereignty jointly in
King, Lords, and Commons came to be practically established, and it is
still founded merely on a customary law. In the United States, with a
written constitution, it required all Austin's subtlety to detect where
sovereignty lay, and he places it where probably no ordinary citizen of
the United States had ever thought of it as residing, viz. 'in the states'
governments as forming one aggregate body: meaning by a state's gov-
ernment, not its ordinary legislature, but the body of citizens which ap-
points its ordinary legislature, and which, the union apart, is properly
sovereign.. . therein. ' He bases this view on the provision in the constitu-
tion, according to which amendments to it are only valid 'when ratified

Principles of Political Obligation/77

by the legislature in three-fourths of the several states, or by convention
in three-fourths thereof.' (I, p. 268n) But no ordinary citizen of the
United States probably ever thought of sovereignty except as residing
either in the government of his state or in the federal government con-
sisting of Congress and President, or sometimes in one way, sometimes
in the other. In other countries, e.g. France, where since Louis XIV the
quarter in which sovereignty resides has at any given time been easily
assignable, there have since the revolution been such frequent changes
in the ostensible sovereign that there might almost at any time have been
a case for doubting whether the ostensible sovereign had such command
over the habitual obedience of the people as to be a sovereign in that
sense in which there is a social duty to obey the sovereign, as the repre-
sentative of the common interest in social order; whether some prior
sovereignty was not really still in force. For these various reasons there
have been occasions in the history of all modern states at which men, or
bodies of men, without the conscious assertion of any right not founded
upon law, might naturally deem themselves entitled to resist an author-
ity which on its part claimed a right a legally established power to en-
force obedience, and turned out actually to possess the power of doing
so.

103. In such cases the truest retrospective account to be given of the
matter will often be that at the time there was nothing amounting to a
right on either side. A right is a power of which the exercise by the
individual or by some body of men is recognised by a society either as
itself directly essential to a common good or as conferred by an author-
ity of which the maintenance is recognised as so essential. But in cases
of the kind described the authorities, appealed to on each side as justify-
ing respectively compulsion and resistance, often do not command a
sufficiently general recognition of their being necessary to the common
good to enable them to confer rights of compulsion or resistance. One or
other of them may be coming to do so, or ceasing to do so, but rights,
though on the one hand they are eternal or at least coeval with human
society, on the other hand take time to form themselves in this or that
particular subject and to transfer themselves from one subject to an-
other (just as one may hold reason to be eternal, and yet hold that it
takes time for this or that being to become rational). Hence in periods of
conflict between local or customary, and imperial or written, law, be-
tween the constituent powers of a sovereignty, such as King and Parlia-
ment in England, of which the relation to each other has not become

78/T.H. Green

accurately defined, between a fallen and a rising sovereign in a period of
revolution, between federal and state authorities in a composite state,
the facts are best represented by saying that for a time there may be no
right on either side in the conflict, and that it is impossible to determine
precisely the stage at which there comes to be such a right on the one
side as implies a definite resistance to right on the other. This of course
is not to be taken to mean that in such periods rights in general are at an
end. It is merely that right is in suspense on the particular point at issue
between the conflicting powers. As we have seen, the general fabric of
rights in any society does not depend on the existence of a definite and
ascertained sovereignty, in the restricted sense of the words; on the de-
termination of a person or persons in whom supreme power resides, but
on the control of the conduct of men according to certain regular prin-
ciples by a society recognising common interests; and though such con-
trol may be more or less weakened during periods of conflict of the kind
supposed, it never ceases.

104. It does not follow, however, because there may often not be
strictly a right on either side in such periods of conflict that there is not
a good and an evil, a better and a worse, on one side or the other. Of this
we can only judge by reference to the end, whatever it be, in which we
conceive the good of man to consist. There may be clear ground for
saying, in regard to any conflict, that one side rather than the other
ought to have been takin, not because those on one side were, those on
the other were not, entitled to say that they had a right to act as they did,
but because the common good of a nation or mankind was clearly pro-
moted by one line of action, not by the other. E.g., in the American war
of secession, though it would be difficult to say that a man had not as
much a right to fight for his seceding states as for the Union, yet as the
special interest of the seceding state was that of maintaining slavery,
there was reason for holding that the side of the Union, not that of the
seceding states, was the one which ought to be taken. On the other hand,
it does not follow that in a struggle for sovereignty the good of man is
more served by one of the competing powers than by the other. Good
may come out of the conflict without one power contributing more to it
than the other. There may thus be as little ground retrospectively for
saying that one side or the other ought to have been taken, as that men
had a right to take one and not the other. At the same time, as regards the
individual, there is no reason for doubting that the better the motive
which determines him to take this side or that — the more he is actuated

Principles of Political Obligation/79

in doing so by some unselfish desire for human good, the more free he is
from egotism, and that conceit or opinionatedness which is a form of
egotism the more good he will do whichever side he adopts.

105. It is in such cases as we have been considering that the distinc-
tion between sovereign de facto and sovereign de jure arises. It has a
natural meaning in the mouths of those who, in resisting some coercive
power that claims their obedience, can point to another determinate au-
thority to which they not only consider obedience due, but to which such
obedience in some considerable measure is actually rendered a meaning
which it has not when all that can be opposed to sovereign de facto is
either a 'general will,' or the mere name of a fallen dynasty exercising
no control over men in their dealings with each other. But where this
opposition can be used with a natural meaning, it is a truer account of
the matter (as we have seen) to say. that sovereignty is in abeyance. The
existence of competing powers, each affecting to control men in the
same region of outward action, and each having partisans who regard it
alone as entitled to exercise such control, implies that there is not that
unity of supreme control over the outward actions of men which consti-
tutes sovereignty and is necessary to the complete organisation of a
state. The state has either not reached complete organisation, or is for
the time disorganised the disorganisation being more or less serious ac-
cording to the degree to which the everyday rights of men (their ordi-
nary freedom of action and acquisition) are interfered with by this want
of unity in the supreme control.

106. In such a state of things, the citizen has no rule of right (in the
strict sense of the word) to guide him. He is pretty sure to think that one
or other of the competing powers has a right to his obedience because,
being himself interested (not necessarily selfishly interested) in its sup-
port, he does not take account of its lacking that general recognition as
a power necessary to the common good which is requisite in order to
give it a right. But we looking back may see that there was no such
right. Was there then nothing to direct him either way? Simply I should
answer, the general rule of looking to the moral good of mankind, to
which a necessary means is the organisation of the state, which again
requires unity of supreme control, in the common interest, over the out-
ward actions of men. The citizen ought to have resisted or obeyed either
of the competing authorities according as by doing so he contributed
most to the organisation of the state in the sense explained. It must be
admitted that without more knowledge and foresight than the individual

80/T.H. Green

can be expected to possess, this rule, if he had recognised it, could have
afforded him no sure guidance; but this is only to say that there are
times of political difficulty in which the line of conduct adopted may
have the most important effect, but in which it is very hard to know
what is the proper line to take. On the other side must be set the con-
sideration that the man who brings with him the character most free
from egotism to the decision even of those questions of conduct, as to
which established rules of right and wrong are of no avail, is most sure
on the whole to take the line which yields the best results.

107. We come next to the question of the possible duty of resistance
in cases where no law, acknowledged or half-acknowledged, written or
customary, can be appealed to against a command (general or particu-
lar) that seems contrary to public good; where no counter-sovereignty,
in the natural sense of the words, can be alleged against that of the
imponent of the law; and where at the same time, from the people hav-
ing no share, direct or indirect, in the government, there is no means of
obtaining a repeal of the law by legal means. I say the duty of resistance
because, from the point of view adopted, there can be no right unless
there is a duty of resistance, since there can be no right unless on the
ground that it is for common good, and if so there is a duty. In writings
of the seventeenth and eighteenth centuries, starting with the assump-
tion of natural rights, the question was never put on its proper footing. It
was not asked. When for the sake of the common good the citizen ought
to resist the sovereign? but. What sort of injury to person or property
gave him a natural right to resist? Now there is sense in inquiring upon
what sort and amount of provocation from government individuals in-
evitably will resist how in Spinoza's language that indignatio [indigna-
tion] is excited which leads them in unum conspirare [to conspire to-
gether] but there is none in asking what gives them a right to resist,
unless we suppose a wrong done to society in their persons; and then it
becomes a question not of right merely but of duty, whether the wrong
done is such as to demand resistance. Now when the question is thus
put, no one presumably would deny that under certain conditions there
might be a duty of resistance to sovereign power.

108. Itis important, however, thatinstead of discussing the right of
a majority to resist we should discuss the duty of resistance as equally
possible for a minority and a majority. There can be no right of a written
or majority of citizens, as such, to resist a sovereign. If, by law, custom-
ary, the majority of citizens possess or share in the sovereign power.

Principles of Political Obligation/81

then any conflict that may arise between it and any power cannot be a
conflict between it and the sovereign. The majority may have a right to
resist such a power, but it will not be a right to resist a sovereign. If, on
the other hand, the majority of citizens have no share by law or custom
in the supreme law-making and enforcing power, they never can have a
right, simply as a majority to resist that power. In such a case, there may
arise a social duty to resist, and the exercise of men's powers in fulfilment
of that duty may be sustained by such a general recognition of its being
for the public good, as to become a right; but the resistance may be a
duty before a majority of the citizens approve it and does not necessar-
ily become a duty when a majority of them do approve it; while that
general recognition of its exercise as being for the common good, through
which the power of resistance becomes a right, must be something more
habitual and sustained and penetrating than any vote of a majority can
convey. Incidentally, however, the consideration of the attitude of the
mass of the people in regard to a contemplated resistance to established
government must always be most important in determining the question
whether the resistance should be made. It should be made, indeed if at
all not because the majority approve it but because it is for the public
good, but account must be taken of the state of mind of the majority in
considering whether it is for the public good or no. The presumption
must generally be that resistance to a government is not for the public
good when made on grounds which the mass of the people cannot ap-
preciate; and it must be on the presence of a strong and intelligent popu-
lar sentiment in favour of resistance that the chance of avoiding anar-
chy, of replacing the existing government by another effectual for its
purpose, must chiefly depend. On the other hand it is under the worst
governments that. the public spirit is most crushed; and thus in extreme
cases there may be a duty of resistance in the public interest, though
there is no hope of the resistance finding efficient popular support. (An
instance is the Mazzinian outbreaks in Italy.) Its repeated renewal and
repeated failure may afford the only prospect of ultimately arousing the
public spirit which is necessary for the maintenance of a government in
the public interest. And just as there may thus be a duty of resistance on
the part of a hopeless minority so on the other side resistance even to a
monarchic or oligarchic government is not justified by the fact that a
majority, perhaps in some temporary fit of irritation or impatience, is
ready to support it, if, as may very well be, the objects for which gov-
ernment subsists — the general freedom of action and acquisition and

82/T.H. Green

self-development are likely to suffer from an overthrow of the govern-
ment in the popular interest.

109. No precise rule, therefore, can be laid down as to the condi-
tions under which resistance to a despotic government becomes a duty.
But the general questions which the good citizen should ask himself in
contemplating such resistance will be, (a) What prospect is there of
resistance to the sovereign power leading to a modification of its char-
acter or an improvement in its exercise without its subversion? (b) If it
is overthrown, is the temper of the people such — are the influences on
which the general maintenance of social order and the fabric of recognised
rights depend so far separable from it — that its overthrow will not mean
anarchy? (c) If its overthrow does lead to anarchy, is the whole system
of law and government so perverted by private interests hostile to the
public, that there has ceased to be any common interest in maintaining
it?

110. Such questions are so little likely to be impartially considered
at a time when resistance to a despotic government is in contemplation,
and, however impartially considered, are so intrinsically difficult to an-
swer, that it may seem absurd to dwell on them. No doubt revolutionists
do and must to a great extent 'go it blind. ' Such beneficent revolutions
as there have been could not have been if they did not. But in most of
those questions of right and wrong in conduct, which have to be settled
by consideration of the probable effects of the conduct, the estimate of
effects which regulates our approval or disapproval 'upon a retrospec-
tive survey,' and according to which we say that an act should or should
not have been done, is not one which we could expect the agent himself
to have made. The effort to make it would have paralysed his power of
action.

1 1 1 . In the simple cases of moral duty, where there is no real doubt
as to the effects of this or that action and danger arises from interested
self-sophistication, we can best decide for ourselves whether we ought
to act in this way or that by asking whether it is what is good in us a
disinterested or unselfish motive — that moves us to act in this way or
that; and in judging of the actions of others, where the issues and cir-
cumstances are simple, the moral question the question of 'ought' or
'ought not' is often best put in the form. How far was the action such as
could represent a good character? That indeed is the form in which the
question should always be put, when the nature of the case admits it;
since, as argued in lectures on the moral criterion, it is only in its rela-

Principles of Political Obligation/83

tion to character that action is in the full sense good or bad, the object of
moral approval and disapproval. But where the probable effects of a
certain line of action are at the time of taking it very obscure, we cannot
be sure that relatively the best character will lead a man to take the line
which turns out best in the result, or that because a line of action has
turned out well in result, the character of the man who adopted it was
good. This being so, in judging of the act retrospectively, we have to
estimate it by the result simply, in abstraction from the character of the
agent. Thus in looking back upon a revolutionary outbreak we can only
judge whether it was vindicated by the result. If in the light of the result
it appears that the conditions were not present under which it would
have furthered rather than interfered with the true objects of govern-
ment, we judge that it should not have been made; if otherwise, we
approve it — ^judge that the persons concerned in it were doing their duty
in acting as they did. But whether they were really in the full sense of the
term doing their duty in acting as they did in a case when the outbreak
was successful, or not doing it in a case where it failed, is what we
simply cannot tell; for this depends on the state of character which their
action represented, and that is beyond our ken.

112. Such is the necessary, imperfection under which all historical
judgments labour though historians are not apt to recognise it and would
be thought much more dull if they did. They would have fewer readers if
they confined themselves to the analysis of situations, which may be
correctly made, and omitted judgments on the morality of individuals
for which, in the proper sense, the data can never be forthcoming. We
scarcely have them for ourselves except that we know that we are none
of us what we should be still less for our intimate acquaintances; not at
all for men whom we only know through history past or present. In
regard to them, we can only fall back on the generalisation, that the best
man — the man most disinterestedly devoted to the perfecting of human-
ity, in some form or other, in his own person or that of others — is most
likely to act in a way that is good as measured by its results, those
results again being estimated with reference to an ideal of character,
that this is so even under circumstances of political complication; that
appearances to the contrary appearances of harm done from good mo-
tives, may be met by the considerations, (1) that there is often much
egotism, in what calls itself conscientiousness, and that the 'conscien-
tious' motives which lead to mischievous acts may not be in the highest
sense disinterested; (2) that to what we call the consequences of an ac-

84/T.H. Green

tion many influences contribute besides the action which we call the
cause, and if evil seems to clog the consequences of action pure in mo-
tive, this may be due to other influences connected with motives less
worthy, and that the consequences which in the rough we call bad might
have been worse but for the intervention of the purely-motivated action;
(3) that the beneficent results are often put to the credit of the actions of
selfish men when they should rather be credited to influences more re-
mote and complex, without which those actions would have been im-
possible or had no good effect, and which have arisen out of unselfish
activities. We see the evil in a course of events and lay the blame on
someone who should have acted differently, and whom perhaps we take
as an instance of how good men cause mischief; but we do not see the
greater evil which would otherwise have ensued.

In regard to the questions stated above as those which the good
citizen should ask himself in contemplation of a possible rebellion, though
they are questions to which it is impossible for a citizen in the heat of a
revolutionary crisis to give a sufficient answer, and which in fact can
only be answered after the event, yet they represent objects which the
good citizen will set before himself at such times; and in proportion to
the amount of good citizenship, as measured by interest in these objects
(interest in making the best of existing institutions, in maintaining social
order and the general fabric of rights, the interest which leads to a bona
fide estimate of the value of the existing go governmentin its relation to
public good) will be the good result of the political movement.

G. Will, Not Force, is the Basis of the State

113. looking back on the political theories we have discussed, we may
see that they all start with putting the question to be dealt with in the
same way and that their errors are very much due to the way in which
they put it. They make no inquiry into the development of society and of
man through society. They take no account of other forms of commu-
nity than that regulated by a supreme coercive power, either in the way
of investigating their historical origin and connection, or of considering
the ideas and states of mind which they imply or which render them
possible. They leave out of sight the process by which men have been
clothed with rights and duties, and with senses of right and duty, which
are neither natural nor derived from a sovereign power. They look only
to the supreme coercive power on the one side and to individuals, to
whom natural rights are ascribed, on the other, and ask what is the

Principles of Political Obligation/85

nature and origin of the right of that supreme coercive power as against
these natural rights of individuals. The question so put can only be an-
swered by some device for representing the individuals governed as con-
senting parties to the exercise of government over them. This they no
doubt are so long as the government is exercised in a way corresponding
to their several wishes, but so long as this is the case, there is no inter-
ference with their 'natural liberty' to do as they like. It is only when this
liberty is interfered with that any occasion arises for an explanation of
the compatibility of the sovereign's right with the natural right of the
individual; and it is just then that the explanation by the supposition that
the right of the sovereign is founded on consent, fails. But the need of
the fictitious explanation arises from a wrong way of putting the ques-
tion — the power which regulates our conduct in political society is con-
ceived in too abstract a way on the one side, and on the other are set over
against it, as the subjects which it controls, individuals invested with all
the moral attributes and rights of humanity. But in truth it is only as
members of a society, as recognising common interests and objects, that
individuals come to have these attributes and rights, and the power,
which in a political society they have to obey is derived from the devel-
opment and systematisation of those institutions for the regulation of a
common life without which they would have no rights at all.

114. To ask why I am to submit to the power of the state, is to ask
why I am to allow my life to be regulated by that complex of institutions
without which I literally should not have a life to call my own, nor
should be able to ask for a justification of what I am called on to do. For
that I may have a life which I can call my own, I must not only be
conscious of myself and of ends which I present to myself as mine; I
must be able to reckon on a certain freedom of action and acquisition
for the attainment of those ends, and this can only be secured through
common recognition of this freedom on the part of each other by mem-
bers of a society, as being for a common good. Without this, the very
consciousness of having ends of his own and a life which he can direct
in a certain way — of which he can make something would remain dor-
mant in a man. It is true that slaves have been found to have this con-
sciousness in high development; but a slave even at his lowest has been
partly made what he is by an ancestral life which was not one of slavery
pure and simple a life in which certain elementary rights were secured to
the members of a society through their recognition of a common inter-
est. He retains certain spiritual aptitudes from that state of family or

86/T.H. Green

tribal freedom. This perhaps is all that could be said of most of the
slaves on plantations in modern times, but the slavery of the ancient
world, being mainly founded on captivity in war, was compatible with a
considerable amount of civilisation on the part of the slaves at the time
when their slavery began. A Jewish slave, e.g., would carry with him
into slavery a thoroughly developed conception of right and law. Sla-
very moreover, implies the establishment of some regular system of rights
in the slave-owning society. The slave, especially the domestic slave,
has the signs and effects of this system all about him. Hence such el-
ementary consciousness of rights of powers that are his own to make the
best of as the born slave may inherit from an ancestral life of freedom,
finds a stimulus to its inward development, though no opportunity for
outward exercise, in the habits and ideas of civilised life with which a
common language enables the slave to become conversant, and which
through the sympathy implied in a common language he to some extent
makes his own. Thus the appearance in slaves of the conception that
self mastery is properly theirs, does not conflict with the proposition
that only so far as a certain freedom of action and acquisition is secured
to a body of men through their recognition of the exercise of that free-
dom by each other as being for the common good, is there an actualisation
of the individual's consciousness of having life and ends of his own. The
exercise, manifestation, expression of this consciousness through a free-
dom secured in the way described is necessary to its real existence, just
as language of some sort is necessary to the real existence of thought,
and bodily movement to that of the soul.

115. The demand, again, for a justification of what one is called on
by authority to do presupposes some standard of right, recognised as
equally valid for and by the person making the demand and others who
form a society with him, and such a recognised standard in turn implies
institutions for the regulation of men's dealings with each other, institu-
tions of which the relation to the consciousness of right may be com-
pared, as above, to that of language to thought. It cannot be said that the
most elementary consciousness of right is prior to them, or they to it.
They are the expression in which it becomes real. As conflicting with
the momentary inclinations of the individual, these institutions are a
power which he obeys unwillingly; which he has to, or is made to, obey.
But it is only through them that the consciousness takes shape and form
which expresses itself in the question, 'Why should I thus be constrained?
By what right is my natural right to do as I like overborne?'

Principles of Political Obligation/87

116. The doctrine that the rights of government are founded on the
consent of the governed is a confused way of stating the truth that the
institutions by which man is moralised by which he comes to do what he
sees that he must as distinct from what he would like — express a con-
ception of a common good; that through them that conception takes
form and reality; and that it is in turn through its presence in the indi-
vidual that they have a constraining power over him — a power which is
not that of mere fear, still less a physical compulsion, but which leads
him to do what he is not inclined to because there is a law that he should
Rousseau, it will be remembered, speaks of the 'social pact' not merely
as the foundation of sovereignty or civil government, but as the founda-
tion of morality. Through it man becomes a moral agent; for slavery to
appetite he substitutes freedom of subjection to self-imposed law. If he
had seen at the same time that rights do not begin till duties begin, and
that if there was no morality prior to the pact there could not be rights,
he might have been saved from the error which the notion of there being
natural rights introduces into his theory. But though he does not seem
himself to have been aware of the full bearing of his own conception, the
conception itself is essentially true. Setting aside the fictitious represen-
tation of an original covenant as having given birth to that common
'ego' or general will, without which no such covenant would have been
possible, and of obligations arising out of it, as out of a bargain made
between one man and another, it remains true that only through a recog-
nition by certain men of a common interest, and through the expression
of that recognition in certain regulations of their dealings with each
other, could morality originate, or any meaning be gained for such terms
as 'ought' and 'right' and their equivalents.

117. Morality, in the first instance, is the observance of such regu-
lations, and though a higher morality the morality of the character gov-
erned by 'disinterested motives' i.e., by interestin some form of human
perfection comes to differentiate itself from this primitive morality con-
sisting in the observance of rules established for a common good, yet
this 'outward' morality is the presupposition of the 'higher.' Morality
and political subjection thus have a common source — 'political subjec-
tion' being distinguished from that of a slave, as a subjection which
secures rights to the subject. That common source is the rational recog-
nition by certain human beings it may be merely by children of the same
parent — of a common well-being which is their well-being, and which
they conceive as their well-being whether at any moment any one of

88/T.H. Green

them is inclined to it or no, and the embodiment of that recognition in
rules by which the inclinations of the individuals are restrained, and a
corresponding freedom of action for the attainment of well-being on the
whole is secured.

118. From this common source morality and political subjection in
all its forms always retain two elements in common — one consisting in
antagonism to some inclination, the other consisting in the conscious-
ness that the antagonism to inclination is founded on reason or on the
conception of some adequate good. It is the antagonism to inclination
involved in the moral life, as alone we know it, that makes it proper to
speak analogically of moral 'laws' and 'imperatives.' It must be re-
membered, however, that such language is analogical, and that there is
an essential difference between laws in the strictest sense laws which
are indeed not adequately described as general commands of a political
superior, sanctioned by liability to pains which that superior can inflict,
but in which a command so sanctioned is an essential element — and the
laws of conscience, of which it is the peculiar dignity that they have no
external imponent and no sanction consisting in fear of bodily evil. The
relation of constraint, in the one case between the man and the exter-
nally imposed law, in the other between some particular desire of the
man and his consciousness of something absolutely desirable, we natu-
rally represent in English, when we reflect on it, by the common term
'must.' 'I must connect with the main-drainage,' says the householder
to himself, reflecting on an edict of the Local Board. 'I must try to get
A.B. to leave off drinking,' he says to himself, reflecting on a trouble-
some moral duty of benevolence to his neighbour. And if the 'must' in
the former case represents in part the knowledge that compulsion may
be put on the man who neglects to do what he 'must, ' which is no part of
its meaning in the second, on the other hand the consciousness that the
constraint is for a common good, which wholly constitutes the power
over inclination in the second case, must always be an element in that
obedience which is properly called obedience to law, or civil or political
obedience. Simple fear can never constitute such obedience. To repre-
sent it as the basis of civil subjection is to confound the citizen with the
slave, and to represent the motive which is needed for the restraint of
those in whom the civil sense is lacking and for an occasional reinforce-
ment of the law abiding principle in others, as if it were the normal
influence in habits of life of which the essential value lies in their being
independent of it. How far in any particular act of conformity to law the

Principles of Political Obligation/89

fear of penalties may be operative, it is impossible to say. What is cer-
tain is that a habit of subjection founded upon such fear could not be a
basis of political or free society to which it is necessary, not indeed that
everyone subject to the laws should take part in voting them, still less
that he should consent to their application to himself, but that it should
represent an idea of common good, which each member of the society
can make his own so far as he is rational, or capable of the conception
of common good, however much particular passions may lead him to
ignore it and thus necessitate the use of force to prevent him from doing
that which, so far as influenced by the conception of common good, he
would willingly abstain from.

119. Whether the legislative and administrative agencies of society
can be kept in the main free from bias by private interests and true to the
idea of common good without popular control — whether again, if they
can, that 'civil sense,' that appreciation of common good, on the part of
the subjects, which is as necessary to free or political society as the
direction of law to the maintenance of common good, can be kept alive
without active participation of the people in legislative functions, is a
question of circumstances which perhaps does not admit of unqualified
answer. The views of those who looked mainly to the highest develop-
ment of political life in a single small society have to be modified if the
object sought for is the extension of political life to the largest number
of people. The size of modern states renders necessary the substitution
of a representative system for one in which the citizens shared directly
in legislation, and this so far tends to weaken the active interest of the
citizens in the commonwealth, though the evil may partly be counter-
acted by giving increased importance to municipal or communal admin-
istration. In some states, from the want of homogeneity or facilities of
communication, a representative legislature is scarcely possible. In oth-
ers, where it exists, a great amount of power, virtually exempt from
popular control, has to be left with what Rousseau would have called
the 'prince or magistrate. In all this there is a lowering of civil vitality as
compared with that of the ancient, and perhaps of some exceptionally
developed modern, commonwealths. But perhaps this is a temporary
loss that we have to bear as the price of having recognised the claim to
citizenship as the claim of all men. Certainly all political ideals, which
require active and direct participation by the citizens in the functions of
the sovereign state, fail us as soon as we try to conceive their realisation
on the wide area even of civilised mankind. It is easy to conceive a better

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system than that of the great states of modern Europe, with their na-
tional jealousies, rival armies and hostile tariffs, but the condition of
any better state of things would seem to be the recognition of some
single constraining power, which would be even more remote from the
active co-operation of the individual citizen than is the sovereign power
of the great states at present.

120. These considerations may remind us how far removed from
any foundation in their own will the requirements of the modern state
must seem to be to most of those who have to submit to them. It is true
that the necessity which the state lays upon the individual is for the most
part one to which he is so accustomed that he no longer kicks against it;
but what is it, we may ask, but an external necessity, which he no more
lays on himself than he does the weight of the atmosphere or the pres-
sure of summer heat and winter frosts, that compels the ordinary citizen
to pay rates and taxes, to serve in the army, to abstain from walking
over the squire's fields or snaring his hares, or fishing in preserved
streams, to pay rent, or respect those artificial rights of property which
only the possessors of them have any obvious interestin maintaining, or
even (if he is one of the 'proletariate') to keep his hands off the superflu-
ous wealth of his neighbour, when he has none of his own to lose? Granted
that there are good reasons of social expediency for maintaining institu-
tions which thus compel the individual to actions and forbearances that
are none of his willing, is it not abusing words to speak of them as
founded on a conception of general good? A conception does not float in
the air. It must be somebody's conception. Whose conception, then, of
general good is it that these institutions represent? Not that of most of
the people who conform to them, for they do so because they are made
to, or have come to do so habitually from having been long made to (in
the sense of being frightened of the consequences of not conforming —
not of consequences which follow from not conforming in the ordinary
course of nature, but of consequences which the state inflicts, artificial
consequences.) But when a man is said to obey an authority from inter-
est in a common good, some other good is meant than that which con-
sists in escaping the punishment which the authority would inflict on
disobedience. Is the conception of common good alleged, then, a con-
ception of it on the part of those who founded or maintain the institu-
tions in question? But is it not certain that private interests have been
the main agents in establishing, and are still in maintaining, at any rate
all the more artificial rights of property? Have not our modern states

Principles of Political Obligation/91

again, in neariy every case, been founded on conquest, and are not the
actual institutions of government in great measure the direct result of
such conquest, or, where revolutions have intervened, of violence which
has been as little governed by any conception of general good? Suppos-
ing that philosophers can find exquisite reasons for considering the in-
stitutions and requirements which have resulted from all this self-seek-
ing and violence to be contributory to the common good of those who
have to submit to them, is it not trifling to speak of them as founded on
or representing a conception of this good, when no such conception has
influenced those who established, maintain, or submit to them? And is it
not seriously misleading to speak of an obedience to the requirements of
the state, when these requirements have so largely arisen out of force
directed by selfish motives and when the motive to the obedience is
determined by fear, as having a common source with the morality of
which it is admitted that the essence is to be disinterested and spontane-
ous.

121. If we would meet these objections fairly certain admissions,
must be made. That idea of a common good which the state fulfils has
never been the sole influence actuating those who have been agents in
the historical process by which states have come to be formed; and even
so far as it has actuated them, it has been only as conceived in some very
imperfect form that it has done so. This is equally true of those who
contribute to the formation and maintenance of states rather as agents,
and of those who do so rather as patients. No one could pretend that
even the most thoughtful and dispassionate publicist is capable of the
idea of the good served by the state to which he belongs, in all its fulness.
He apprehends it only in some of its bearings, but it is as a common
good that he apprehends it, i.e., not as a good for himself or for this man
or that more than another, but for all members equally in virtue of their
relation to each other and their common nature. The idea of the common
good served by the state on the part of the ordinary citizen, is much
more limited in content. Very likely he does not think of it at all in
connection with anything that the term 'state' represents to him. But he
has a clear understanding of certain interests and rights common to him-
self with his neighbours — if only such as consist in getting his wages
paid at the end of the week, in getting his money's worth at the shop, in
the inviolability of his own person and his wife's. Habitually and in-
stinctively i.e., without asking the reason why he regards the claim which
in these respects he makes for himself as conditional upon his recognising

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a like claim in others, and thus as in the proper sense a right a claim of
which the essence lies in its being common to himself with others. With-
out this instinctive recognition he is one of the 'dangerous classes,' vir-
tually outlawed by himself. With it, though he has no reverence for the
'state' under that name, no sense of an interest shared with others in
maintaining it, he has the needful elementary conception of a common
good maintained by law. It is the fault of the state if this conception fails
to make him a loyal subject, if not an intelligent patriot. It is a sign that
the state is not a true state that it is not fulfilling its primary function of
maintaining law equally in the interest of all, but is being administered
in the interest of classes; whence it follows that the obedience which, if
not rendered willingly, the state compels the citizen to render, is not one
that he feels any spontaneous interest in rendering, because it does not
present itself to him as the condition of the maintenance of those rights
and interests, common to himself with his neighbours, which he under-
stands.

122. But even if the law which regulates private relations and its
administration are so equally applied to all, that all who are capable of
a common interest are prompted by that interest to conform to the law,
the result is still only the loyal subject as distinct from the intelligent
patriot, i.e., as distinct from the man who so appreciates the good which
in common with others he derives from the state — from the nation
organised in the form of a self-governing community to which he be-
longs — as to have a passion for serving it whether in the way of defend-
ing it from external attack or developing it from within. The citizens of
the Roman Empire were loyal subjects; the admirable maintenance of
private rights made them that; but they were not intelligent patriots, and
chiefly because they were not, the empire fell. That active interest in the
service of the state, which makes patriotism in the better sense, can
hardly arise while the individual's relation to the state is that of a pas-
sive recipient of protection in the exercise of his rights of person and
property. While this is the case, he will give the state no thanks for the
protection which he will not specially associate with it, and will only be
conscious of it when it descends upon him with some unusual demand
for service or payment, and then he will be conscious of it in the way of
resentment. If he is to have a higher feeling of political duty, he must
take part in the work of the state. He must have a share, direct or indi-
rect, by himself acting as a member or by voting for the members of
supreme or provincial assemblies, in making and maintaining the laws

Principles of Political Obligation/93

which he obeys. Only thus will he learn to regard the work of the state
as a whole, and to transfer to the whole the interest which otherwise his
particular experience would lead him to feel only in that part of its work
that goes to the maintenance of his own and his neighbour's rights.

123. And even then his patriotism will hardly be the passion which
it needs to be, unless his judgement of what he owes to the state is
quickened by a feeling of which the patria, the fatherland, the seat of
one's home, is the natural object and of which the state becomes the
object only so far as it is an organisation of a people to whom the indi-
vidual feels himself bound by ties analogous to those which bind him to
his family — ties derived from a common dwelling-place with its asso-
ciations, from common memories, traditions and customs, and from the
common ways of feeling and thinking which a common language and
still more a common literature embodies. Such an organisation of an
homogeneous people the modern state in most cases is (the two Austrian
states being the most conspicuous exceptions), and such the Roman
state emphatically was not.

124. But, it will be said, we are here again falling back on our
unproved assumption that the state is an institution for the promotion of
a common good. This granted, it is not difficult to make out that in most
men at any rate there is a sufficient interest in some form of social well-
being, sufficient understanding of the community between their own
well-being and their neighbours,' to make them loyal to such an institu-
tion. But the question is, whether the promotion of a common good, at
any rate in any sense appreciable by the multitude, is any necessary
characteristic of a state. It is admitted that the outward visible sign of a
state is the presence of a supreme or independent coercive power, to
which habitual obedience is rendered by a certain multitude of people,
and that this power may often be exercised in a manner apparently det-
rimental to general well-being. It may be the case, as we have tried to
show that it is, that a power which is in the main so exercised and is
generally felt to be so, is not likely long to maintain its supremacy, but
this does not show that a state cannot exist without promotion of the
common good of its subjects or that (in any intelligible sense) the pro-
motion of such good belongs to the idea of a state. A short-lived state is
not therefore not a state, and if it were, it is rather the active interference
with the subjects' well-being, than a failure to promote it, that is fatal to
the long life of a state. How, finally, can the state be said to exist for the
sake of an end, or to fulfil an idea, the contemplation of which, it is

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admitted, has had little to do with the actions which have had most to do
with bringing states into existence?

125. The last question is a crucial one, which must be met at the
outset. It must be noticed that the ordinary conception of organisation,
as we apply it in the interpretation of nature, implies that agents may be
instrumental in the attainment of an end or the fulfilment of an idea of
which there is no consciousness on the part of the organic agents them-
selves. If itis true on the one hand that the interpretation of nature by the
supposition of ends external to it, with reference to which its processes
are directed, has been discarded, and that its rejection has been the con-
dition of growth in an exact knowledge of nature, on the other hand the
recognition of ends immanent in nature, of ideas realised within it, is the
basis of a scientific explanation of life. The phaenomena of life are not
'ideal,' in the sense in which the ideal is opposed to that which is sensi-
bly verifiable, but they are related to the processes of material change
which are their conditions, as ideas or ideal ends which those processes
contribute to realise, because while they determine the processes while
the processes would not be what they are but for relation to them yet
they are not those processes not identical with any one or number of
them, or all of them together. Life does not reside in any of the organs of
life or in any or all of the processes of material change through which
these pass. Analyse or combine these as you will, you do not detect it as
the result of the analysis or combination. It is a function or end which
they realise according to a plan or idea which determines their existence
before they, exist and survives their disappearance. If it were held, then,
that the state were an organised community in the same sense in which a
living body is, of which the members at once contribute to the function
called life and are made what they are by that function, according to an
idea of which there is no consciousness on their part, we should only be
following the analogy of the established method of interpreting nature.

126. The objection to such a view would be that it represents the
state as a purely natural, not at all as a moral, organism. Moral agency
is not merely agency by which an end is attained, or an idea realised or
a function fulfilled, but agency determined by an idea on the part of the
agent, by his conception of an end or function; and the state would be
brought into being and sustained by merely natural, as opposed to moral,
agency unless there were a consciousness of ends and of ends the same
in principle with that served by the state itself on the part of those by
whom it is brought into being and sustained. I say 'ends the same in

Principles of Political Obligation/95

principle with that served by the state itself,' because if the state arose
out of the action of men determined indeed by the consciousness of
ends, but ends wholly heterogeneous to that realised by the state, it would
not be a moral institution, would not stand in any moral relation to men.
Now among the influences that have operated in the formation of states,
a large part, it must be admitted, are simply natural. Such are influences
of climate, of distribution of mountain and plain, land and water, etc., of
all physical demarcations and means of communication. But these, it is
clear, are only organic to the formation of states so far as, so to speak,
they take a character, which does not belong to them as merely natural,
from agencies distinctively human.

127. 'Human, if you like,' it may be replied, 'but not moral, if a
moral agency implies any reference to a social or human good to a good
which the individual in any measure desires because it is good for oth-
ers, or for mankind, as well as himself. In the earth-hunger of conquer-
ing hordes, in the passions of military despots, in the pride of avarice or
vindictiveness which moved such men as Louis XI or Henry VIII to
over-ride the semi-anarchy of feudalism with a real sovereignty, what is
there of reference to such good? Yet if we suppose the influence of such
motives as these, together with the natural influences just spoken of, to
be erased from the history of the formation of states, its distinguishing
features are gone.'

128. The selfish motives described must not, any more than the
natural influences, be regarded in abstraction if we would understand
their true place in the formation of states. The pure desire for social
good does not indeed operate in human affairs unalloyed by egotistic
motives, but on the other hand what we call egotistic motives do not act
without direction from an involuntary reference to social good 'involun-
tary' in the sense that it is so much a matter of course that the individual
does not distinguish it from his ordinary state of mind. The most con-
spicuous modern instance of a man who was instrumental in working
great and in some ways beneficial changes in the political order of Eu-
rope, from what we should be apt to call the most purely selfish mo-
tives, is Napoleon. Without pretending to analyse these motives pre-
cisely, we may say that a leading one was the passion for glory; but if
there is to be truth in the statement that this passion governed Napoleon,
it must be qualified by the farther statement that the passion was itself
governed by social influences, operative on him, from which it derived
its particular direction. With all his egotism, his individuality was so far

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governed by the action of the national spirit in and upon him that he
could only glorify himself in the greatness of France; and though the
national spirit expressed itself in an effort after greatness which was in
many ways of a mischievous and delusive kind, yet it again had so much
of what may be called the spirit of humanity in it that it required satis-
faction in the belief that it was serving mankind. Hence the
aggrandisement of France, in which Napoleon's passion for glory satis-
fied itself, had to take at least the semblance of a deliverance of op-
pressed peoples, and in taking the semblance to a great extent performed
the reality; at any rate in western Germany and northern Italy, wherever
the Code Napoleon was introduced.

129. It is thus that actions of men whom in themselves we reckon
bad are 'overruled' for good. There is nothing mysterious or unintelli-
gible in such 'overruling.' There is nothing in the effect which we as-
cribe to the 'overruling,' any more than in any effect belonging to the
ordinary course of nature which there was not in the cause as it really
was and as we should see it to be if we fully understood it. The appear-
ance to the contrary arises from our taking too partial and abstract a
view of the cause. We look at the action e.g., of Napoleon with reference
merely to the selfishness of his motives. We forget how far his motives,
in respect of their concrete reality — in respect of the actual nature of the
ends pursued as distinct from the particular relation in which those ends
stood to his personality were made for him by influences with which his
selfishness had. nothing to do. It was not his selfishness that made France
a nation or presented to him continuously an end consisting in the na-
tional aggrandisement of France, or at particular periods such ends as
the expulsion of the Austrians from Italy, the establishment of a
centralised political order in France on the basis of social equality, the
promulgation of the civil code, the maintenance of the French system
along the Rhine. His selfishness gave a particular character to his pur-
suit of these ends, and (so far as it did so) did so for evil. Finally it led
him into a train of action altogether mischievous. But at each stage of
his career, if we would understand what his particular agency really
was, we must take account of his ends in their full character, as deter-
mined by influences with which his passion for glory no doubt co-oper-
ated, but which did not originate with it or with him, and in some mea-
sure represented the struggle of mankind towards perfection.

130. And not only must we thus correct our too abstract views of
the particular agency of such a man as Napoleon. If we would under-

Principles of Political Obligation/97

stand the apparent results of his action we must bear in mind how much
besides his particular agency has really gone to produce them, so far as
they were good, how much of unnoticed effort on the part of men ob-
scure because unselfish, how much of silent process in the general heart
of man. Napoleon was called the 'armed soldier of revolution' and it
was in that character that he rendered what service he did to men; but
the revolution was not the making of him or his likes. Caesar again we
have learnt to regard as a benefactor of mankind, but it was not Caesar
that made the Roman law through which chiefly or solely the Roman
Empire became a blessing. The idiosyncrasy, then, of the men who have
been most conspicuous in the production of great changes in the condi-
tion of mankind, though it has been an essential element in their produc-
tion, has been so only so far as it has been overborne by influences and
directed to ends, which were indeed not external to the men in ques-
tion — which on the contrary helped to make them inwardly and spiritu-
ally what they really were — but which formed no part of their distin-
guishing idiosyncrasy. If that idiosyncrasy was conspicuously selfish, it
was still not through their selfishness that such men contributed to mould
the institutions by which nations have been civilised and developed, but
through their fitness to act as organs of impulses and ideas which had
previously gained a hold on some society of men, and for the realisation
of which the means and conditions had been preparing quite apart from
the action of those who became the most noticeable instruments of their
realisation.

131. The assertion, then, that an idea of social good is represented
by or realised in the formation of states, is not to be met by pointing to
the selfishness and bad passions of men who have been instrumental in
forming them, if there is reason to think that the influences, under direc-
tion of which these passions became thus instrumental, are due to the
action of such an idea. And when we speak thus, we do not refer to any
action of the idea otherwise than in the consciousness of men. It may be
legitimate, as we have seen, to consider ideas as existing and acting
otherwise, and perhaps, on thinking the matter out, we should find our-
selves compelled to regard the idea of social good as a communication
to the human consciousness a consciousness developing itself in time
from an eternally complete consciousness. But here we are considering
it as a source of the moral action of men, and therefore necessarily as
having its seat in their consciousness, and the proposition advanced is
that such an idea is a determining element in the consciousness of the

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most selfish men who have been instrumental in the formation or main-
tenance of states; that only through its influence in directing and con-
trolling their actions could they be so instrumental; and that, though its
active presence in their consciousness is due to the institutions, the
organisation of life, under which they are born and bred, the existence
of these institutions is in turn due to the action, under other conditions,
of the same idea in the minds of men.

1 32. It is the necessity of a supreme coercive power to the existence
of a state that gives plausibility to the view that the action of merely
selfish passions may lead to the formation of states. They have been
motive causes, it would seem, in the processes by which this 'imperium'
has been established; as, e.g., the acquisition of military power by a
tribal chieftain, the conquest of one tribe by another, the supersession of
the independent prerogatives of families by a tyrant which was the con-
dition antecedent of the formation of states in the ancient world, the
supersession of feudal prerogatives by the royal authority which served
the same purpose in modern Europe. It is not, however, supreme coer-
cive power, simply as such, but supreme coercive power, exercised in a
certain way and for certain ends, that makes a state; viz. exercised ac-
cording to law, written or customary and for the maintenance of rights.
The abstract consideration of sovereignty has led to these qualifications
being overlooked. Sovereignty = supreme coercive power, indeed, but
such power as exercised in and over a state, which means with the qualifi-
cations specified: but the mischief of beginning with an inquiry into
sovereignty, before the idea of a State has been investigated, is that it
leads us to adopt this abstract notion of sovereignty as merely supreme
coercive power, and then, when we come to think of the state as distin-
guished by sovereignty, makes us suppose that supreme coercive power
is all that is essential to a state, forgetting that it is rather the state that
makes the sovereign than the sovereign that makes the state. Supposing
one man had been master of all the slaves in one of the states of the
American Union, there would have been a multitude of men under one
supreme coercive power, but the slaves and the master would have formed
no state, because there would have been no (recognised) rights of slave
against slave enforced by the master, nor would dealings between mas-
ter and slaves have been regulated by any law, and in consequence the
multitude consisting of slaves and master would not have been a state.
The fact that sovereign power, as implied in the fact of its supremacy,
can alter any laws, is apt to make us overlook the necessity of confor-

Principles of Political Obligation/99

mity to law on the part of the sovereign, if he is to be sovereign of a
state. A power that altered laws otherwise than according to law, ac-
cording to a constitution, written or unwritten, would be incompatible
with the existence of a state, which is a body of persons, recognised by
each other as having rights, and possessing certain institutions for the
maintenance of those rights. The office of the sovereign, as an institu-
tion of such a society, is to protect those rights from invasion, either
from without, from foreign nations, or from within, from members of
the society who cease to behave as such. Its supremacy is the society's
independence of such attacks from without or within. It is an agency of
the society, or the society itself acting for this end. If the power, existing
for this end, is used on the whole otherwise than in conformity either
with a formal constitution or with customs which virtually serve the
purpose of a constitution, it is no longer an institution for the mainte-
nance of rights and ceases to be the agent of a state. We only count
Russia a state by a sort of courtesy on the supposition that the power of
the Czar, though subject to no constitutional control is so far exercised
in accordance with a recognised tradition of what the public good re-
quires as to be on the whole a sustainer of rights.

It is true that just as in a state, all law being derived from the sover-
eign, there is a sense in which the sovereign is not bound by any law, so
there is a sense in which all rights are derived from the sovereign and no
power which the sovereign refuses to allow can be a right; but it is only
in the sense that, the sovereign being the state acting in a certain capac-
ity, and the state being an institution for the more complete and harmo-
nious maintenance of the rights of its members, a power, claimed as a
right, but which the state or sovereign refuses to allow, cannot be really
compatible with the general system of rights. In other words, it is true
only on supposition that a state is made a state by the function which it
fulfils of maintaining the rights of its members as a whole or a system,
in such a way that none gains at the expense of another (no one has any
power guaranteed to him through another's being deprived of that power).
Thus the state, or the sovereign as a characteristic institution of the
state, does not create rights, but gives fuller reality to rights already
existing. It secures and extends the exercise of powers, which men, in-
fluenced in dealing with each other by an idea of common good, had
recognised in each other as being capable of direction to that common
good, and had already in a certain measure secured to each other in
consequence of that recognition. It is not a state unless it does so.

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133. It may be said that this is an arbitrary restriction of the term
'state.' If any other word, indeed, can be found to express the same
thing, by all means let it be used instead. But some word is wanted for
the purpose, because as a matter of fact societies of men, already pos-
sessing rights, and whose dealings with each other have been regulated
by customs conformable to those rights, but not existing in the form to
which the term 'state' has just been applied — i.e., not having a system-
atic law in which the rights recognised are expressed and harmonised,
and which is enforced by a power strong enough at once to protect a
society against disturbance within and aggression from without — have
come to take on that form. A word is needed to express that form of
society both according to the idea of it which has been operative in the
minds of the members of the societies which have undergone the change
described, an idea only gradually taking shape as the change proceeded,
and according to the more explicit and distinct idea of it which we form
in reflecting on the process. The word 'state' is the one naturally used
for the purpose. The exact degree to which the process must have been
carried before the term 'state' can be applied to the people in which it
has gone on cannot be precisely determined, but as a matter of fact we
never apply it except in cases where it has gone some way, and we are
justified in speaking of the state according to its idea as the society in
which it is completed.

1 34. It is a mistake then to think of the state as an aggregation of
individuals under a sovereign — equally so whether we suppose the indi-
viduals as such, or apart from what they derive from society, to possess
natural rights, or suppose them to depend on the sovereign for the pos-
session of rights. A state presupposes other forms of community, with
the rights that arise out of them, and only exists as sustaining, securing,
and completing them. In order to make a state there must have been
families of which the members recognised rights in each other (recognised
in each other powers capable of direction by reference to a common
good); there must further have been intercourse between families, or
between tribes that have grown out of families, of which each in the
same sense recognised rights in the other. The recognition of a right
being very short of its definition, the admission of a right in each other
by two parties, whether individuals, families, or tribes, being very dif-
ferent from agreement as to what the right consists in — what it is a right
to do or acquire — the rights recognised need definition and reconcilia-
tion in a general law. When such a general law has been arrived at.

Principles of Political Obligation/lOl

regulating the position of members of a family towards each other and
the dealings of families or tribes with each other; when it is voluntarily
recognised by a community of families or tribes, and maintained by a
power strong enough at once to enforce it within the community and to
defend the integrity of the community against attacks from without, then
the elementary state has been formed.

1 35. That, however, is the beginning, not the end, of the state. When
once it has come into being, new rights arise in it and further purposes
are served by it. New rights arise in it ( 1 ) through the claim for recogni-
tion on the part of families and tribes living on the same territory with
those which in community form the state but living at first in some
relation of subjection to them. A common humanity, of which language
is the expression, necessarily leads to recognition of some good as com-
mon to these families with those which form the state. This is in prin-
ciple the recognition of rights on their part; and the consequent embodi-
ment of this recognition in the law of the state is their admission as
members of it (Instances of this process are found in the states of Greece
and the early history of Rome.) (2) The same thing may happen in re-
gard to external communities ('external' territorially), whether these have
been already formed into states or no. It may happen through conquest
of one by another, through their submission to a common conqueror, as
under the Roman empire, or through voluntary combination (as with the
Swiss cantons and the United States of America). However the combi-
nation may arise, it results in new rights as between the combined com-
munities within the system of a single state. (3) The extended inter-
course between individuals, which formation of the state renders pos-
sible, leads to new complications in their dealings with each other, and
with it to new forms of right, especially in regard to property — rights as
far removed from any obvious foundation on the suum cuique principle
as that of a college to the great tithes of a parish for which it does
nothing. (4) The administration of the state gives rise to rights; to the
establishment of powers necessary for its administration. (5) New situ-
ations of life may arise out of the extended dealings of man with man
which the state renders possible, e.g. through crowding of population in
certain localities, which make new modes of protecting the people a
matter virtually of right. And, as new rights arise in the state once formed,
so further purposes are served. It leads to a development and moralisation
of man beyond the stage which they must have reached before it could
be possible.

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136. On this I shall dwell more next term. What I am now con-
cerned to point out is that, however necessary a factor force may have
been in the process by which states have been formed and transformed,
it has only been such a factor as co-operating with those ideas without
which rights could not exist. I say 'could not exist,' not 'could not be
recognised,' because rights are made by recognition. There is no right
but thinking makes it so none that is not derived from some idea that
men have about each other. Nothing is more real than a right, yet its
existence is purely ideal, if by 'ideal' is meant that which is not depen-
dent on anything material but has its being solely ideal realities that
force is subordinate in consciousness. It is to these in the creation and
development of states. The force of conquest from without, the force
exercised within communities by such agents as the early Greek Tyrants
or the royal suppressors of feudalism in modern Europe, has only con-
tributed to the formation of states in so far as its effects have takin a
character which did not belong to them as effects of force through their
operation in a moral world, in which rights already existed, resting on
the recognition by men of each other as determined, or capable of being
determined, by the conception of a common good. It is not indeed true
that only a state can produce a state, though modern history might seem
to favour that notion. As a matter of fact the formation of modern states
through feudalism out of an earlier tribal system has been dependent on
ideas derived from, if not on institutions actually handed down from, the
Roman state; and the improvement and development of the state system
which has taken place since the French Revolution has been through
agencies which all presuppose and are determined by the previous exist-
ence of states. But the Greek states, so far as we know, were a first
institution of the kind, not a result of propagation from previously exist-
ing states. But the action, which brought them into being, was only
effectual for its purpose because the idea of right, though only in the
form of family or tribal right, was already in in operation. Next term I
hope further to pursue the subject of the functions of the State: to con-
sider the rationale of the rights which it maintains or should maintain,
and its further office (if it turns out to have such an office) in the moral-
ization of man beyond the enforcement of rights. This will lead us on to
the consideration of 'social virtues.'

Principles of Political Obligation/lOS

H. Has the Citizen Rigiits Against tine State?

1 37. 1 propose to pursue the inquiry, begun last term, into the nature and
functions of the state. Last term we were chiefly occupied with criti-
cism. We have seen that no true conception of the rights of individuals
against each other or against the state, or of the rights of the state over
individuals, can be arrived at, while we look upon the state merely as an
aggregation of individuals under a sovereign power that is able to com-
pel their obedience, and consider this power of compelling a general
obedience to be the characteristic thing in a state. So long as this view is
retained, no satisfactory answer can be given to the question, by what
right the sovereign compels the obedience of individuals. It can only be
met either by some device for representing the individuals as so consent-
ing to the exercise of sovereign power over them that it is no violation of
their individual rights, or by representing the rights of individuals as
derived from the sovereign and thus as having no existence against it.
But it is obviously very often against the will of individuals that sover-
eign power is exercised over them; indeed if it were not so, its character-
istic as a power of compulsion would be lost; it would not be a sover-
eign power; and the fact that the majority of a given multitude may
consent to its exercise over an unconsenting minority is no justification
for its exercise over that minority, if its justification is founded on con-
sent; the representation that the minority virtually consents to be bound
by the will of the majority being an obvious fiction. On the other hand,
the theory that all right is derived from a sovereign, that it is a power of
which the sovereign secures the exercise to the individual, and that there-
fore there can be no right against that sovereign, conflicts with the pri-
mary demands of human consciousness. It implies the identification of
'I ought' with ' I am forced to.' Reducing the 'right' of the sovereign
simply to a power, it makes it unintelligible that this power should yet
represent itself, and claim obedience to itself, as a right. No such theory
indeed admits of consistent statement. To say (with Hobbes) that a law
may be inequitable or pernicious, though it cannot be unjust, is to admit
a criticism of laws, a distinction between those enactments of the sover-
eign which are what they should be and those which are not. And this is
to recognise the individual's demand for a justification of the laws which
he obeys; to admit in effect that there is some rule of right, of which the
individual is conscious and to which law ought to conform.

1 38. It is equally impossible, then, to hold that the right of the sov-
ereign power in a state over its members is dependent on their consent.

104/T.H. Green

and, on the other hand, that these members have no rights except such
as are constituted and conferred upon them by the sovereign. The sover-
eign, and the state itself as distinguished by the existence of a sovereign
power, presupposes rights and is an institution for their maintenance.
But these rights do not belong to individuals as they might be in a state
of nature, or as they might be if each acted irrespectively of others.
They belong to them as members of a society in which each recognises
the other as an originator of action in the same sense in which he is
conscious of being so himself (as an 'ego' as himself the object which
deter mines the action), and thus regards the free exercise of his own
powers as dependent upon his allowing an equally free exercise of his
powers to every other member of the society. There is no harm in saying
that they belong to individuals as such, if we understand what we mean
by 'individual,' and if we mean by 'individual' a self-determining sub-
ject conscious of itself as one among other such subjects, and of its
relation to them as making it what it is; for then there is no opposition
between the attachment of rights to the individuals as such and their
derivation from society. They attach to the individual, but only as a
member of a society of free agents, as recognising himself and recognised
by others to be such a member, as doing and done by accordingly. A
right, then, to act unsocially — to act otherwise than as belonging to a
society of which each member keeps the exercise of his powers within
the limits necessary to the like exercise by all the other members is a
contradiction. No one can say that, unless he has consented to such a
limitation of his powers, he has a right to resist it. The fact of his not
consenting would be an extinction of all right on his part.

139. The state then presupposes rights, and rights of individuals. It
is a form which society takes in order to maintain them. But rights have
no being except in a society of men recognising each other as isoi kai
homoioi [equals]. They are constituted by that mutual recognition. In
analysing the nature of any right, we may conveniently look at it on two
sides, and consider it as on the one hand a claim of the individual, aris-
ing out of his rational nature, to the free exercise of some faculty; on the
other, as a concession of that claim by society, a power given to the
individual of putting the claim in force by society. But we must be on
our guard against supposing that these distinguishable sides have any
really separate existence. It is only a man's consciousness of having an
object in common with others, a well-being which is consciously his in
being theirs and theirs in being his — only the fact that they are recognised

Principles of Political Obligatioii/105

by him and he by them as having this object — that gives him the claim
described. There can be no reciprocal claim on the part of a man and an
animal each to exercise his powers unimpeded by the other, because
there is no consciousness common to them. But a claim founded on such
a common consciousness is already a claim conceded; already a claim
to which reality is given by social recognition, and thus implicitly a
right.

140. It is in this sense that a slave has 'natural rights.' They are
'natural' in the sense of being independent of, and in conflict with, the
laws of the state in which he lives, but they are not independent of social
relations. They arise out of the fact that there is a consciousness of
objects common to the slave with those among whom he lives whether
other slaves or the family of his owner and that this consciousness con-
stitutes at once a claim on the part of each of those who share it to
exercise a free activity conditionally upon his allowing a like activity in
the others, and a recognition of this claim by the others, through which
it is realised. The slave thus derives from his social relations a real right
which the law of the state refuses to admit. The law cannot prevent him
from acting and being treated, within certain limits, as a member of a
society of persons freely seeking a common good. And as that capabil-
ity of living in a certain limited community with a certain limited num-
ber of human beings, which the slave cannot be prevented from exhibit-
ing, is in principle a capability of living in a community with any other
human beings, supposing the necessary training to be allowed; and as
every such capability constitutes a right, we are entitled to say that the
slave has a right to citizenship to a recognised equality of freedom with
any and every one with whom he has to do — and that in refusing him not
only citizenship but the means of training his capability of citizenship,
the state is violating a right, founded on that common human conscious-
ness which is evinced both by language which the slave speaks and by
actual social relations subsisting between him and others. And on the
same principle upon which a state is violating natural rights in, it does
the same in using force, except under maintaining slavery necessity of
self-defence, against members of another community. Membership of
any community is so far in principle membership of all communities as
to constitute a right to be treated as a freeman by all other men, to be
exempt from subjection to force except for prevention of force.

141. A man may thus have rights as a member of a family or of
human society in any other form without being a member of a state at

106/T.H. Green

all — rights which remain rights though any particular state or all states
refuse to recognise them; and a member of a state, on the ground of that
capability of living as a freeman among freemen which is implied in his
being a member of a state, has rights as against all other states and their
members. These latter rights are in fact during peace recognised by all
civilised states. It is the object of 'private international law' to reduce
them to a system. But though it follows from this that the state does not
create rights, it may be still true to say that the members of a state derive
their rights from the state and have no rights against it. We have already
seen that a right against society, as such, is an impossibility; that every
right is derived from some social relation; that a right against any group
of associated men depends on association, as isos kai homoios [an equal],
with them and with some other men. Now for the member of a state to
say that his rights are derived from his social relations, and to say that
they are derived from his position as member of a state, are the same
thing. The state is for him the complex of those social relations out of
which rights arise, so far as those rights have come to be regulated and
harmonised according to a general law, which is recognised by a certain
multitude of persons, and which there is sufficient power to secure against
violation from without and from within. The other forms of community
which precede and are independent of the formation of the state do not
continue to exist outside it, nor yet are they superseded by it. They are
carried on into it. They become its organic members, supporting its life
and in turn maintained by it in a new harmony with each other. Thus the
citizen's rights, e.g., as husband or head of a family or a holder of prop-
erty, though such rights, arising out of other social relations than that of
citizen to citizen, existed when as yet there was no state, are yet to the
citizen derived from the state from that more highly developed form of
society in which the association of the family and that of possessors
who respect each other's possessions are included as in a fuller whole;
which secures to the citizen his family rights and his rights as a holder
of property, but under conditions and limitations which membership of
the fuller whole the reconciliation of rights arising out of one sort of
social capability with those arising out of another renders necessary.
Nor can the citizen have any right against the state, in the sense of a
right to act otherwise than as a member of the state. For a citizen this is
as much a contradiction as the right of a man to act otherwise than as a
member of some society, the state being for its members the society of
societies the society in which all their claims upon each other are mutu-

Principles of Political Obligation/lOV

ally adjusted.

142. But what exactly is meantby the citizen's acting 'as a member
of his state'? What does the assertion that he can have no right to act
otherwise than as a member of his state amount to? Does it mean that he
has no right to disobey the law of the state to which he belongs, what-
ever that law may be? that he is not entitled to exercise his powers in any
way that the law forbids and to refuse to exercise them in any way that
it commands? This question was virtually dealt with last term in consid-
ering the justifiability of resistance to an ostensible sovereign. The only
unqualified answer that can be given to it is one that may seem too
general to be of much practical use, viz. that so far as the laws any-
where or at any time in force fulfil the idea of a state, there can be no
right to disobey them; or, that there can be no right to disobey the law of
the state except in the interest of the state; i.e., for the purpose of mak-
ing the state in respect of its actual laws more completely correspond to
what it is in tendency or idea, viz. the reconciler and sustainer of the
rights that arise out of the social relations of men. On this principle
there can be no right to disobey or evade any particular law on the
ground that it interferes with any freedom of action, any right of manag-
ing his children or 'doing what he will with his own,' which but for that
law the individual would possess. Any power which has been allowed to
the individual up to a certain time, he is apt to regard as permanently,
his right. It has, indeed, been sofar his right if the exercise of that power
has been allowed with any reference to social good but it does not, as he
is apt to think, remain his right when a law has been enacted that inter-
feres with it. A man, e.g., has been allowed to drive at any pace he likes
through the streets, to build houses without any reference to sanitary
conditions, to keep his children at home or send them to work
'analphabetic,' to buy or sell alcoholic drinks at his pleasure. If laws are
passed interfering with any or all of these powers, he says that his rights
are being violated. But he only possessed these powers as rights through
membership of a society which secured them to him, and of which the
only permanent bond consists in the reference to the well-being of its
members as a whole. It has been the social recognition grounded on that
reference that has rendered certain of his powers rights. If upon new
conditions arising, or upon elements of social good being taken account
of which had been overlooked before, or upon persons being taken into
the reckoning as capable of participating in the social well-being who
had previously been treated merely as means to its attainment if in any

108/T.H. Green

of these ways or otherwise the reference to social well-being suggests
the necessity of some further regulation of the individual's liberty to do
as he pleases, he can plead no right against this regulation, for every
right that he has possessed has been dependent on that social judgment
of its compatibility with general well-being which in respect to the liber-
ties in question is now reversed.

143. 'Is then the general judgment as to the requirements of social
well-being so absolutely authoritative that no individual right can exist
against it? What if according to this judgment the institution of slavery
is so necessary that citizens are prohibited by law from teaching slaves
to read and from harbouring runaways? or if according to it the mainte-
nance of a certain form of worship is so necessary that no other worship
can be allowed and no opinion expressed antagonistic to it? Has the
individual no rights against enactments founded on such accepted views
of social well-being?' We may answer: A right against society as such,
a right to act without reference to the needs or good of society is an
impossibility since every right depends on some social relation, and a
right against any group of associated men depends on association upon
some footing of equality with them or with some other men. We saw
how the right of the slave really rested on this basis — on a social capac-
ity shown in the footing on which he actually lives with other men. On
this principle it would follow, if we regard the state as the sustainer and
harmoniser of social relations , that the individual can have no right against
the state; that its law must be to him of absolute authority. But in fact,
as actual states at best fulfil but partially their ideal function, we cannot
apply this rule to practice. The general principle that the citizen must
never act otherwise than as a citizen does not carry with it an obligation
under all conditions to conform to the law of his state, since those laws
may be inconsistent with the true end of the state as the sustainer and
harmoniser of social relations. The assertion by the citizen of any right,
however, which the state does not recognise must be founded on a refer-
ence to an acknowledged social good. The fact that the individual would
like to exercise the power claimed as a right does not render the exercise
of it a right, nor does the fact that he has been hitherto allowed to exer-
cise it render it a right, if social requirements have newly arisen under
changed conditions, or have newly come to be recognised, with which
its exercise is incompatible. The reason that the assertion of an illegal
right must be founded on reference to acknowledged social good is that,
as we have seen, no exercise of a power, however abstractedly desirable

Principles of Political Obligatioii/109

for the promotion of human good it might be, can be claimed as a right
unless there is some common consciousness of utility shared by the per-
son making the claim and those on whom it is made. It is not a question
whether or no it ought to be claimed as a right; it simply can not be
except on this condition. It would have been impossible, e.g., in an an-
cient state, where the symbol of social union was some local worship,
for a monotheistic reformer to claim a right to attempt the subversion of
that worship. If a duty to do so had suggested itself, consciousness of
the duty could never have expressed itself in the form of a claim of right,
in the absence of any possible sense of a public interest in the religious
revolution to which the claim could be addressed. Thus just as it is not
the exercise of every power, properly claimable as a right, that is a right
in the full or explicit sense of being legally established, so it is not every
power, of which the exercise would be desirable in an ideal state of
things, that is properly claimable as a right. The condition of its being
so claimable is that its exercise should be contributory to some social
good which the public conscience is capable of appreciating — not nec-
essarily one which in the existing prevalence of private interests can
obtain due acknowledgment, but still one of which men in their actions
and language show themselves to be aware.

144. Applying these considerations to the question whether a citi-
zen of a state which forbade education of slaves could claim a right on
these points above the law, we may answer, he has no rights against
them founded on any right to do as he likes. Whatever counter-rights he
has must be founded on a relation to social well-being, and that a rela-
tion of which his fellow-citizens are aware. He must be able to point to
some public interest, generally recognised as such, which is involved in
the exercise of the power claimed by him as a right to show that it is not
the general well-being, even as conceived by his fellow -citizens, but
some special interest of a class that is concerned in preventing the exer-
cise of the power claimed. In regard to the right of teaching or harbouring
the slave, he must appeal to the actual capacity of the slave for commu-
nity with other men as evinced in the manner described above, to the
recognition of this capacity as shown by the actual behaviour of the
citizens in many respects towards the slave, on the addition to social
well-being that results from the realisation of this capacity in all who
possess it through rights being legally guaranteed to them. In this way
he must show that the reference to social well-being, on which is founded
the recognition of powers as rights, if fairly and thoroughly carried out.

110/T.H. Green

leads to the exercise of powers in favour of the slave, in the manner
described, not to prohibition of that exercise as the supposed law pro-
hibits it. The response which in so doing he elicits from the conscience
of fellow-citizens shows that in talking of the slave as 'a man and a
brother' he is exercising what is implicitly his right, though it is a right
which has not become explicit through legal enactments. This response
supplies the factor of social recognition which, as we have seen, is nec-
essary in order to render the exercise of any power a right. To have an
implicit right, however, to exercise a power which the law disallows is
not the same thing as having a right to exercise that right. The right may
be claimed without the power being actually exercised so long as the
law prohibits its exercise. The question, therefore, would arise whether
the citizen was doing his duty as such — acting as a member of the state —
if he not merely did what he could for repeal of the law prohibiting the
instruction of a slave or the assistance of runaways, but himself in defi-
ance of the law instructed and assisted them. As a general rule, no doubt,
even bad laws laws representing the interests of classes or individuals
as opposed to those of the community — should be obeyed. There can be
no right to disobey them, even while their repeal is urged on the ground
that they violate rights, because the public interest, on which all rights
are founded, is more concerned in the general obedience to law than in
the exercise of those powers by individuals or classes which the objec-
tionable laws unfairly withhold. The maintenance of a prohibitory duty
upon import of certain articles in the interest of certain manufacturers
would be no justification for smuggling these articles. The smuggler
acts for his private gain, as does the man who buys of him, and no
violation of the law for the private gain of the violator, however unfair
the law violated, can justify itself by reference to a recognised public
good, or be vindicated as a right. On the other hand, there may be cases
in which the public interest not merely according to some remote
philosopher's view of it but according to conceptions which the people
are able to assimilate is best served by a violation of some actual law. It
is so in regard to slavery when the public conscience has come to recognise
a capacity for right (for exercising powers under control of a reference
to general well-being) in a body of men to whom legal rights have hith-
erto been refused, but when some powerful class in its own interest
resists alteration of the law. In such a case a violation of the law on
behalf of the slave is not only not a violation in the interest of the viola-
tor; the general sense of right on which general observance of law de-

Principles of Political Obligation/l 1 1

pends being represented by it, there is no danger of its making a breach
in the law-abiding habits of the people.

145. But this, it will be said, is to assume a condition of things in
which the real difficulty of the question disappears. What is to be done
when no recognition of the implicit rights of the slave can be elicited
from the public conscience; when the legal prohibitions described are
supported by the only conceptions of general good of which the body of
citizens is capable? Has the citizen still a right to disregard these legal
prohibitions? Is the assertion of such a right compatible with the doc-
trine that social recognition of any mode of action as contributory to the
common good is necessary to constitute a right so to act, and that no
member of a state can have a right to act otherwise than according to
that position? The question, be it observed, is not as to the right of the
slave, but as to the right of the citizen to treat the slave as having rights
in a state of which the law forbids his being so treated. The claim of the
slave to be free, his right implicit to have rights explicit, i.e., to member-
ship of a society of which each member is treated by the rest as entitled
to seek his own good in his own way on supposition that he so seeks it as
not to interfere with the like freedom of quest on the part of others, rests,
as we have seen, on the fact that the slave is determined by conceptions
of a good common to himself with others, as shown by the actual social
relations in which he lives. No state law can neutralise this right. The
state may refuse him family rights and rights of property but it cannot
help his living as a member of a family — acting and being treated as a
father, husband, son, or brother — and therefore cannot extinguish the
rights which are necessarily involved in his so acting and being so treated.
Nor can it prevent him from appropriating things and from associating
with others on the understanding that they respect each other's appro-
priations, and thus possessing and exercising rights of property. He has
thus rights which the state neither gives nor can take away, and they
amount to or constitute a right to freedom in the sense explained. The
state, under which the slave is a slave, refusing to recognise this right,
he is not limited in its exercise by membership of the state. He has a
right to assert his right to such membership in any way compatible with
that susceptibility to the claims of human fellowship on which the right
rests. Other men have claims upon him, conditioning his rights, but the
state, as such, which refuses to recognise his rights, has no claim on
him. The obligation to observe the law, because it is the law, does not
exist for him.

112/T.H. Green

146. It is otherwise with the citizen. The slave has a claim upon him
to be treated in a certain way, the claim which is properly described as
that of a common humanity. But the state which forbids him so to treat
the slave has also a claim upon him, a claim which embodies many of
the claims that arise out of a common humanity in a form that reconciles
them with each other. Now it may be argued that the claim of the state is
only absolutely paramount on supposition that in its commands and
prohibitions it takes account of all the claims that arise out of human
fellowship; that its authority over the individual is in principle the au-
thority of those claims, taken as a whole; that if, as in the case sup-
posed, its ordinances conflict with those claims as possessed by a cer-
tain class of persons, their authority, which is essentially a conditional
or derived authority, disappears; that a disregard of them in the interest
of the claims which they disregard is really conformity to the require-
ments of the state according to its true end or idea, since it interferes
with none of the claims or interests which the state has its value in
maintaining or protecting, but, on the contrary, forces on the attention
of members of the state claims which they hitherto disregarded; and that
if the conscience of the citizens is so far mastered by the special private
interests which the institution of slavery breeds that it cannot be brought
to recognize action on the slave's behalf as contributory to a common
good, yet there is no ground under such conditions for considering a
man's fellow-citizens to be the sole organs of the recognition which is
needed to render his power of action a right; that the needful recognition
is at any rate forthcoming from the slaves and from all those acquainted
with the action in whom the idea of a good common to each man with
others operates freely.

147. This may be truly urged, but it does not therefore follow that
the duty of befriending the slave is necessarily paramount to the duty of
obeying the law which forbids his being befriended: and if it is possible
for the latter duty to be paramount, it will follow, on the principle that
there is no right to violate a duty, that under certain conditions the right
of helping the slave may be cancelled by the duty of obeying the pro-
hibitory law. It would be so if the violation of law in the interest of the
slave were liable to result in general anarchy in the destruction of the
state, not merely in the sense of the dissolution of this or that form of
civil combination, but of the disappearance of conditions under which
any civil combination is possible; for such a destruction of the state
would mean a general loss of freedom a general substitution of force for

Principles of Political Obligation/l 1 3

mutual good-will in men's dealings with each other — that would out-
weigh the evil of any slavery under such limitations and regulations as
an organised state imposes on it.

I. Private Rights, tine Rigiit to Life and Liberty

148. In order then to understand the nature of the state, we must under-
stand the nature of those rights which do not come into being with it but
arise out of social relations that may exist where a state is not; it being
the first, though not the only, office of the state to maintain those rights.
They depend for their existence, indeed, on society a society of men who
recognise each other as isoi kai homoioi [equals], as capable of a com-
mon well-being — but not on society's having assumed the form of a
state. They may therefore be treated as claims of the individual without
reference to the form of the society which concedes or recognises them,
and on whose recognition, as we have seen, their nature as rights de-
pends. Only it must be borne in mind that the form in which these claims
are admitted and acted on by men in their dealings with each other var-
ies with the form of society — that the actual form, e.g., in which the
individual's right of property is admitted under a patriarchal r gime is
very different from that in which it is admitted in a state — and that
though the principle of each right is throughout the same, it is a prin-
ciple which only comes to be fully recognised and acted on when the
state has not only been formed, but fully developed according to its
idea.

149. The rights which may be treated as independent of the state in
the sense explained are of course those which are commonly distin-
guished as private, in opposition to public rights. ' [I]f rights be analysed,
they will be found to consist of several kinds. For first they are such as
regard a man's own person; secondly such as regard his dominion over
the external and sensible things by which he is surrounded; thirdly, such
as regard his private relations, as a member of a family; fourthly such
as regard his social state or condition, as a member of the community;
the first of which classes may be designated as personal rights, the sec-
ond, as rights of property, the third, as rights in private relations, and
the fourth, as public rights.'

150. An objection might fairly be made to distinguishing one class
of rights as personal, on the ground that all rights are so — not merely in
the legal sense of 'person,' according to which the proposition is a tru-
ism, since every right implies a person as its subject, but in the moral

114/T.H. Green

sense, since all rights depend on that capacity in the individual for being
determined by a conception of well-being, as an object at once for him-
self and for others, which constitutes personality in the moral sense. By
personal rights in the above classification are meant rights of life and
liberty — i.e., of preserving one's body from the violence of other men,
and of using it as an instrument only of one's own will — if of another's,
still only through one's own. The reason why these come to be spoken of
as 'personal' is probably the same with the reason why we talk of a
man's 'person' in the sense simply of his body. They may however, be
reckoned in a special sense personal even by, those who consider all
rights personal because the person's possession of a body and its exclu-
sive determination by his own will is the condition of his exercising any
other rights indeed, of all manifestation of personality. Prevent a man
from possessing property (in the ordinary sense), and his personality
may still remain. Prevent him (if it were possible) from using his body
to express a will, and the will itself could not become a reality; he would
not be really a person.

151. If there are such things as rights at all, then, there must be a
right to life and liberty, or, to put it more properly to free life. No dis-
tinction can be made between the right to life and the right to liberty, for
there can be no right to mere life — no right to life on the part of a being
that has not also the right to direct the life according to the motions of its
own will. What is the foundation of this right? The answer is, capacity
on the part of the subject for membership of a society — for determina-
tion of the will, and through it of the bodily organisation, by the concep-
tion of a well-being as common to self with others. This capacity is the
foundation of the right, or the right potentially, which becomes actual
through recognition of the capacity by a and through the power which
the society in society, consequence secures to the individual of acting
according to the capacity. In principle, or intrinsically, or in respect of
that which it has it in itself to become, the right is one that belongs to
every man in virtue of his human nature (of the qualities which render
him capable of any fellowship with any other men), and is a right as
between him and all men; because, as we have seen, the qualities which
enable him to act as a member of any one society having the general
well-being of its members for its object (as distinct from any special
object requiring special talent for its accomplishment) form a capacity
for member ship of any other such society. But actually, or as recognised,
it only gradually becomes a right of a man, as man, and against all men.

Principles of Political Obligation/l 15

1 52. At first it is only a right of the man as a member of some one
particular society, and a right as between him and the other members of
that society, the society being naturally a family or tribe. Then, as sev-
eral such societies come to recognise, in some limited way, a common
well-being and thus to associate on settled terms, it comes to be a right
not merely between the members of any one of the societies but between
members of the several families or tribes in their dealings with each
other not, however, as men, but only as belonging to this or that particu-
lar family. This is the state of things in which, if one man is damaged or
killed, compensation is made according to the terms of some customary
law by the family or tribe of the offender to that of the man damaged or
killed, the compensation varying according to the rank of the family.
Upon this system — generally through some fusion of family demarca-
tions and privileges, whether through pressure upward of a population
hitherto inferior, or through a levelling effected by some external power —
there supervenes one in which the relation between citizen and citizen,
as such, is substituted for that between family and family, as such. This
substitution is one of the essential processes in the formation of the
state. It is compatible, however, with the closest limitation of the privi-
leges of citizenship and implies no acknowledgment in man as man of
the right to free life ascribed to the citizen as citizen. In the ancient
world, the companion of citizenship is everywhere slavery, and it was
only actual citizenship, not any such capacity for becoming a citizen as
might naturally be held to be implied in civil birth, that was considered
to give a right to live; for the exposure of children was everywhere
practised (and with the approval of the philosophers), a practice in strong
contrast with the principle of modern law that even a child in the womb
has a right to live.

153. The influences commonly pointed out as instrumental in bring-
ing about the recognition of rights in the man, as independent of particu-
lar citizenship, are: (1) adjudication by Roman praetors of questions at
issue between citizens and those who were not so, which led to the for-
mation of the system of 'equity,' independent of the old civil law and
tending gradually to be substituted for it. The existence of such a sys-
tem, however, presupposes the recognition of rights so far independent
of citizenship in a particular state as to obtain between citizens of differ-
ent states. (2) The doctrine of a 'law of nature,' applicable to dealings
of all men, popularised by the Stoics. (3) The Christian conception of
the universal redemption of a brotherhood, of which all could become

116/T.H. Green

members through a mental act within the power of all.

154. The admission of a right to free life on the part of every man,
as man, does in fact logically imply the conception of all men as form-
ing one society in which each individual has some service to render, one
organism in which each has a function to fulfil. There can be no claim
on society, such as constitutes a right, except in respect of a capacity
freely (i.e., under determination by conception of the good) to contrib-
ute to its good. If the claim is made on behalf of any and every human
being, it must be a claim on human society as a whole, and there must be
a possible common good of human society as a whole, conceivable as
independent of the special conditions of particular societies, to render
such a claim possible. We often find, however, that men assimilate a
practical idea in respect of one of its implications without doing so in
respect of the rest. Thus the idea of the individual's right to free life has
been strongly laid hold of in Christendom in what may be called an
abstract or negative way but little notice has been taken of what it in-
volves. Slavery is everywhere condemned. It is established that no one
has a right to prevent the individual from determining the conditions of
his own life. We treat life as sacred even in the human embryo, and even
in hopeless idiots and lunatics recognise a right to live — a recognition
which can only be rationally explained on either or both of two grounds :
(1) that we do not consider either their lives or the society which a man
may freely serve to be limited to this earth, and thus ascribe to them a
right to live on the strength of a social capacity which under other con-
ditions may become what it is not here; or (2) that the distinction be-
tween curable and incurable, between complete and incomplete, social
incapacity is so indefinite that we cannot in any case safely assume it to
be such as to extinguish the right to live. Or perhaps it may be argued
that even in cases where the incapacity is ascertainably incurable, the
patient has still a social function (as undoubtedly those who are incur-
ably ill in other ways have) a passive function as the object of affection-
ate ministrations arising out of family instincts and memories and that
the right to have life protected corresponds to this passive social func-
tion. The fact, however, that we have almost to cast about in certain
cases for an explanation of the established belief in the sacredness of
human life shows how deeply rooted that belief is unless where some
counter-belief interferes with it.

155. On the other hand, it is equally noticeable that there are counter-
beliefs which, under conditions, do neutralise it, and that certain other

Principles of Political Obligation/l 17

beliefs, which form its proper complement, have very slight hold on the
mind of modern Christendom. It is taken for granted that the exigencies
of the state in war, whether the war be necessary or not for saving the
state from dissolution, absolutely neutralise the right to live. We are
little influenced by the idea of the universal brotherhood of men of man-
kind as forming one society with a common good, of which the concep-
tion may determine the action of its members. In international dealings
we are apt to suppose that it can have no place at all. Yet, as has been
pointed out, it is the proper correlative of the admission of a right to free
life as belonging to man in virtue simply of his human nature. And
though this right can only be grounded on the capacity, which belongs to
the human nature, for freely fulfilling some function in the social organ-
ism, we do very little to give reality to the capacity or to enable it to
realise itself. We content ourselves with enacting that no man shall be
used by other men as a means against his will, but we leave it to be
pretty much a matter of chance whether or no he shall be qualified to
fulfil any social function to contribute anything to the common good —
and to do so freely (i.e., under the conception of a common good). The
only reason why a man should not be used by other men simply as a
means to their ends is that he should use himself as a means to an end
which is really his and theirs at once. But while we say that he shall not
be used as a means, we often leave him without the chance of using
himself for any social end at all.

156. Four questions then arise: (1) With what right do the necessi-
ties of war override the individual's right of life? (2) In what relation do
the rights of states to act for their own interest stand to that right of
human society as such, of which the existence is implied in the posses-
sion of right by the individual as a member of that society, irrespectively
of the laws of particular states? (3) On what principle is it to be as-
sumed that the individual by a certain conduct of his own forfeits the
right of free life, so that the state (at any rate for a time) is entitled to
subject him to force — to treat him as an animal or a thing? Is this forfei-
ture ever so absolute and final that the state is justified in taking away
his life? (4) What is the nature and extent of the individual's claim to be
enabled to realise that capacity for contributing to a social good, which
is the foundation of his right to free life?

118/T.H. Green

K. The Right of the State Over the Individual in
War

157. It may be admitted that to describe war as 'multitudinous murder'
is a figure of speech. The essence of murder does not lie in the fact that
one man takes away the life of another, but that he does this to 'gain his
private ends' and with 'malice' against the person killed. I am not here
speaking of the legal definition of murder, but of murder as a term of
moral reprobation, in which sense it must be used, by those who speak
of war as ' multitudinous murder. ' They cannot mean murder in the legal
sense, because in that sense only 'unlawful killing,' which killing in war
is not, is murder. When I speak of 'malice,' therefore, I am not using
'malice' in the legal sense. In that sense 'malice' is understood to be the
attribute of every 'wrongful act, and is ascribed to done intentionally
without just or lawful excuse, acts (such as killing an officer of justice,
knowing him to be such, while resisting him in a riot) in which there is
no ill-will of the kind which we suppose in murder, when we apply the
term in its natural sense as one of moral disapprobation. Of murder in
the moral sense the characteristics are those stated and these are not
present in the case of a soldier who kills one on the other side in battle.
He has no ill-will to that particular person or to any particular person.
He incurs an equal risk with the person whom he kills, and incurs that
risk not for the sake of killing him. His object in undergoing it is not
private to himself but a service (or what he supposes to be a service) to
his country — a good which is his own, no doubt (that is implied in his
desiring it), but which he presents to himself as common to him with
others. Indeed, those who might speak of war as 'multitudinous murder'
would not look upon the soldier as a murderer. If reminded that there
cannot be a murder without a murderer, and pressed to say who, when a
bloody battle takes place, the murderer or murderers are, they would
probably point to the authors of the war. It may be questioned, by the
way, whether there has ever been a war of which the origination could
be truly said to rest with a definite person or persons, in the same way in
which the origination of an act which would be called murder in the
ordinary sense rests with a particular person. No doubt there have been
wars for which certain assignable individuals were specially blameable —
wars which they specially helped to bring about or had special means of
preventing — and the more the wickedness of such persons is kept in
mind the better; but even in these cases the cause of the war can scarcely
be held to be gathered up within the will of any individual, or the com-

Principles of Political Obligation/l 19

bined will of certain individuals, in the same way as is the cause of
murder or other punishable acts. When A.B . is murdered, the sole cause
lies in some definite volition of CD. or others, however that volition
may have been caused. But when a war 'breaks out,' though it is not to
be considered, as we are too apt to consider it, a natural calamity which
could not be prevented, it would be hard to maintain that the sole cause
lies in some definite volition on the part of some assignable person or
persons, even of those who are most to blame. Passing over this point,
however, if the acts of killing in war are not murders (in the moral sense,
the legal being out of the question) because they lack those characteris-
tics on the part of the agent's state of mind which are necessary to con-
stitute a murder, the persons who cause those acts to be committed, if
such persons can be pointed out, are not the authors of murder, multitu-
dinous or other. They would only be so if the characteristic of 'malice,'
which is absent on the part of the immediate agent of the act, were
present on their part as its ultimate agents. But this is not the case.
However selfish their motives, they cannot fairly be construed into ill-
will towards the persons who happened to be killed in the war; and
therefore, whatever wickedness the persons responsible for the war are
guilty of, they are not guilty of 'murder' in any natural sense of the
term, nor is there any murder in the case at all.

158. It does not follow from this, however, that war is ever other
than a great wrong, as a violation on a multitudinous scale of the
individual's right to life. Whether it is so or not must be discussed on
other grounds. If there is such a thing as a right to life, on the part of the
individual man as such, is there any reason to doubt that this right is
violated in the case of every man killed in war? It is not to the purpose to
allege that in order to a violation of right there must be not only a suffer-
ing of some kind on the part of the subject of a right but an intentional
act causing it on the part of a human agent. There is of course no viola-
tion of right when a man is killed by a wild beast or a stroke of lightning,
because there is no right as between a man and a beast or between a man
and natural force. But the deaths in a battle are caused distinctly by
human agency, agent and patient being alike members of the human
society between whom the relation of right subsists, and intentional
agency. The individual soldier may not have any very distinct intention
when he fires his rifle except to obey orders, but the commanders of the
army and the statesmen who send it into the field intend the death of as
many men as may be necessary for their purpose. It is true they do not

120/T.H. Green

intend the death of this or that particular person, but no more did the
Irishman who fired into a body of police guarding the Fenian prisoners.
It might fairly be held that this circumstance exempted the Irishman
from the special moral guilt of murder, though according to our law it
did not exempt him from the legal guilt expressed, by that term; but no
one would argue that it made the act other than a violation of the right to
life on the part of the policeman killed. No more can the absence, on the
part of those who cause men to be killed in battle, of an intention to kill
this or that specific person, save their act from being a violation of the
right to life.

159. Is there then any condition on the part of the persons killed that
saves the act from having this character? It may be urged that when the
war is conducted according to usages that obtain between civilised na-
tions (not when it is a village -burning war like that between English and
Afghans) the persons killed are voluntary combatants, and oudeis
adikeitai ekon [no one does wrong willingly]. Soldiers, it may be said,
are in the position of men who voluntarily undertake a dangerous em-
ployment. If some of them are killed, this is not more a violation of the
human right to life than is the death of men who have engaged to work
in a dangerous coal-pit. To this it must be answered that if soldiers did
in fact voluntarily incur the special risk of death incidental to their call-
ing, it would not follow that the right to life was not violated in their
being killed. It is not a right which it rests with a man to retain or give up
at his pleasure. It is not the less a wrong that a man should be a slave
because he has sold himself into slavery. The individual's right to live is
but the other side of the right which society has in his living. The indi-
vidual can no more voluntarily rid himself of it than he can of the social
capacity, the human nature, on which it is founded. Thus, however ready
men may be for high wages to work in a dangerous pit, a wrong is held
to be done if they are killed in it. If provisions which might have made it
safe have been neglected, someone is held responsible. If nothing could
make it safe, the working of the pit would not be allowed. The reason
for not more generally applying the power of the state to prevent volun-
tary noxious employments, is not that there is no wrong in the death of
the individual through the incidents of an employment which he has
voluntarily undertaken, but that the wrong is more effectually prevented
by training and trusting individuals to protect themselves than by the
state protecting them. Thus the waste of life in war would not be the less
a wrong — not the less a violation of the right, which subsists between

Principles of Political Obligatioii/121

all members of society, and which none can alienate, that each should
have his life respected by society — if it were the fact that those whose
lives are wasted voluntarily incurred the risk of losing them. But it can
scarcely be held to be the fact. Not only is it impossible, even when war
is conducted on the most civilised methods, to prevent great incidental
loss of life (to say nothing of other injury) among non-combatants; the
waste of the life of the combatants is one which the power of the state
compels. This is equally true whether the army is raised by voluntary
enlistment or by conscription. It is obviously so in the case of conscrip-
tion, but under a system of voluntary enlistment, though the individual
soldier cannot say that he in particular has been compelled by the gov-
ernment to risk his life, it is still the case that the state compels the risk
of a certain number of lives. It decrees that an army of such a size shall
be raised, though if it can get the men by voluntary hiring it does not
exercise compulsion on the men of a particular age, and it sends the
army into the field. Its compulsive agency causes the death of the sol-
diers killed, not any voluntary action on the part of the soldiers them-
selves. The action of the soldiers no doubt contributes to the result, for
if they all refused to fight there would be no killing, but it is an action
put in motion and directed by the power of the state, which is compul-
sive in the sense that it operates on the individual in the last resort through
fear of death.

160. We have then in war a destruction of human life inflicted on
the sufferers intentionally by voluntary human agency. It is true, as we
saw, that it is not easy to say in any case by whose agency in particular.
We may say indeed that it is by the agency of the state, but what exactly
does that mean? The 'state' here must = the sovereign power in the
state, but it is always difficult to say by whom that power is wielded,
and if we could in any case specify its present holders, the further ques-
tion will arise whether their course of action has not been shaped for
them by previous holders of power. But however widely distributed the
agency, may be which causes the destruction of life in war, it is still
intentional human agency. The destruction is not the work of accident or
of nature. If then it is to be other than a wrong, because a violation of
the right to mutual protection of life involved in membership of human
society, it can only be because there is exercised in war some right that
is paramount to this. It may be argued that this is the case; that there is
no right to the preservation of life at the cost of losing the necessary
conditions of 'living well' ; that war is in some cases the only means of

122/T.H. Green

maintaining these conditions, and that where this is so, the wrong of
causing the destruction of physical hfe disappears in the paramount
right of preserving the conditions under which alone moral life is pos-
sible.

161. This argument, however, seems to be only available for shift-
ing the quarter in which we might be at first disposed to lay the blame of
the wrong involved in war, not for changing the character of that wrong.
It goes to show that the wrong involved in the death of certain soldiers
does not necessarily lie with the government which sends those soldiers
into the field, because this may be the only means by which that govern-
ment can prevent more serious wrong; it does not show that there is no
wrong in their death. If the integrity of any state can only be maintained
at the cost of war, and if that state is more than what many so-called
states have been — more than an aggregation of individuals or commu-
nities under one ruling power — if it so far fulfils the idea of a state, that
its maintenance is necessary to the free development of the people be-
longing to it; then by the authorities or people of that state no wrong is
done by the destruction of life which war involves, except so far as they
are responsible for the state of things which renders the maintenance of
the integrity of the state impossible by other means. But how does it
come about that the integrity of such a state is endangered? Not by
accident or by forces of nature, but by intentional human agency in
some form or other, however complicated; and with that agency lies the
wrong -doing. To determine it (as we might be able to do if a horde of
barbarians broke in on a civilised state, compelling it to resort to war
for its defence) is a matter of small importance: what is important to
bear in mind (being one of those obvious truths out of which we may
allow ourselves to be sophisticated) is that the destruction of life in war
is always wrong -doing , whoever be the wrong -doer, and that in the wars ,
most strictly defensive of political freedom, the wrong-doing is only
removed from the defenders of political freedom to be transferred else-
where. If it is difficult in any case to say precisely where, that is only a
reason for more general self-reproach — as the preachers would say —
for a more humbling sense of complicity in that radical (but conquerable
because moral) evil of mankind which renders such a means of main-
taining political freedom necessary. The language, indeed, which we
hear from the pulpit about war being a punishment for the sins of man-
kind, is perfectly true, but it needs to be accompanied by the reminder
that this punishment of sin is simply a consequence of the sin and itself

Principles of Political Obligatioii/123

a further sin, brought about by the action of the sinner, not an external
infliction brought about by agencies to which man is not a party.

162. In fact, however, if most wars had been wars for the mainte-
nance or acquisition of political freedom, the difficulty of fixing the
blame of them, or at any rate of freeing one of the parties in each case
from blame, would be much less than it really is. Of the European wars
of the last four hundred years, how many could be fairly said to have
been wars in which either or any of the parties were fighting for this
end? Perhaps the wars in which the Dutch Republics defended them-
selves against Spain and against Louis XIV, and that in which Germany
shook off the dominion of Napoleon. Perhaps the more recent struggles
of Italy and Hungary against Austrian government. Perhaps in the first
outset of the war of 1792 the French may be fairly held to have been
defending institutions necessary for the development of social freedom
and equality. In this war, however, the issue very soon ceased to be one
between the defenders of such institutions on the one side, and their
assailants on the other, and in most modern wars the issue has not been
of this kind at all. The wars have arisen primarily out of the rival ambi-
tion of kings and dynasties for territorial aggrandisement, with national
antipathies and ecclesiastical ambitions, and the passions arising out of
religious partisanship, as complicating influences. As nations have come
more and more to distinguish and solidify themselves, and a national
consciousness has come definitely to be formed in each, the rival ambi-
tions of nations have tended more and more first to support, then per-
haps to supersede, the ambitions of dynasties as causes of war. The
delusion has been practically dominant that the gain of one nation must
mean the loss of another. Hence national jealousies in regard to colonial
extensions, hostile tariffs and the effort of each nation to exclude others
from its markets. The explosion of this idea in the region of political
economy has had little effect in weakening its hold on men's minds. The
people of one nation still hear with jealousy of another nation's advance
in commerce, as if it meant some decay of their own. And if the com-
mercial jealousy of nations is very slow in disappearing, their vanity,
their desire apart from trade each to become or to seem stronger than the
other, has very much increased. A hundred and fifty years ago national
vanity could scarcely be said to be an influence in politics. The people
under one ruler were not homogeneous enough, had not enough of a
corporate consciousness, to develop a national vanity Now (under the
name of patriotism) it has become a more serious disturber of peace

124/T.H. Green

than dynastic ambition. Where the latter is dangerous, it is because it
has national vanity to work upon.

163. Our conclusion then is that the destruction of life in war (to
say nothing of other evils incidental to it with which we are not here
concerned) is always wrong-doing, with whomsoever the guilt of the
wrong-doing may lie; that only those parties to a war are exempt from a
share in the guilt who can truly plead that to them war is the only means
of maintaining the social conditions of the moral development of man,
and that there have been very few cases in which this plea could be truly
made. In saying this it is not forgotten either that many virtues are called
into exercise by war, or that wars have been a means by which the
movement of mankind, which there is reason for considering a progress
to higher good, has been carried on. These facts do not make the wrong-
doing involved in war any less so. If nothing is to be accounted wrong-
doing through which final good is wrought, we must give up either the
idea of there being such a thing as wrongdoing, or the idea of there
being such a thing as final good. If final good results from the world of
our experience, it results from processes in which wrong-doing is an
inseparable element. Wrong-doing is voluntary action, either (in the
deeper moral sense) proceeding from a will uninfluenced by the desire
to be good on the part of the agent (which may be taken to include action
tending to produce such action) or (in the sense contemplated by the jm^
naturae [law of nature]) it is action that interferes with the conditions
necessary to the free-play and development of a good will on the part of
others. It may be that, according to the divine scheme of the world, such
wrong-doing is an element in a process by which men gradually ap-
proximate more nearly to good (in the sense of a good will). We cannot
think of God as a moral being without supposing this to be the case. But
this makes no difference to wrong-doing in those relations in which it is
wrong-doing, and with which alone we are concerned, viz., in relation
to the will of human agents and to the results which those agents can
foresee and intend to produce. If an action, so far as any results go
which the agent can have in view or over which he has control, inter-
feres with conditions necessary to the free-play and development of a
good will on the part of others, it is not the less wrongdoing because,
through some agency which is not his, the effects which he intended and
which rendered it wrong-doing, come to contribute to an ulterior good.
Nor, if it issues from bad will (in the sense explained), is it less wrong
(in the moral sense) because this will is itself, in the view of some higher

Principles of Political Obligatioii/125

being, contributory to a moral good which is not, in whole or part, within
the view of the agent. If then war is wrong-doing in both the above
senses (as it is always at any rate on the part of those with whom the
ultimate responsibility for it lies), it does not cease to be so on account
of any good resulting from it in a scheme of providence.

164. 'But,' it may be asked, 'are we justified in saying that it is
always wrong-doing on the part of those with whom the ultimate re-
sponsibility lies? It is admitted that certain virtues may be evoked by
war; that it may have results contributory to the moral progress of man-
kind; may not the eliciting of these virtues, the production of these re-
sults, be contemplated by the originators of war, and does not the origina-
tion of war, so far as influenced by such motives, cease to be wrong-
doing? It must be admitted that Caesar's wars in Gaul were unprovoked
wars of conquest, but their effect was the establishment of Roman
civilisation with its equal law over a great part of western Europe in
such a way that it was never wholly swept away, and that a permanent
influence in the progress of the European polity can be traced to it. May
he not be credited with having had, however indefinitely, such an effect
as this in view? Even if his wish to extend Roman civilisation was sec-
ondary to a plan for raising an army by which he might master the
Republic, is he to have no credit for the beneficent results which are
admitted to have ensued from the success of that plan? May not a simi-
lar justification be urged for English wars in India? Of, again, the estab-
lishment of the civil unity of Germany, and the liberation of Christian
populations in Turkey are, admitted to have been gains to mankind, is
not that a justification of such persons concerned in the origination of
the wars that brought about those results as can be supposed to have
been influenced by a desire for them?'

165. These objections might be to the purpose if we were attempt-
ing the task (generally, if not always, an impossible one) of determining
the moral desert, good or ill, of those who have been concerned in bring-
ing this or that war about. Their tendency merely is to distribute the
blame of the wrong-doing involved in war, to show how widely ramified
is the agency in that wrong -doing, not to affect its character as wrong-
doing. If the only way of civilising Gaul was to kill all the people whom
Caesar's wars caused to be killed, and if the desire for civilising it was
a prevailing motive in Caesar's mind, so much the better for Caesar but
so much the worse for the other unassignable and innumerable human
agents who brought it about that such an object could only be attained

126/T.H. Green

in such a way. We are not, indeed, entitled to say that it could have been
brought about in any other way It is true to say (if we know what we are
about in saving it) that nothing which happens in the world could have
happened other wise than it has. The question for us is whether that
condition of things which rendered e.g., Caesar's Gallic wars, with the
violation of human rights which they involved the interference in the
case of innumerable persons with the conditions under which man can
be helpful to man, physical life being the first of these — the sine qua non
in the promotion of ulterior human welfare, was or was not the work of
human agency. If it was and there is no doubt that it was, for to what
merely natural agency could the necessity be ascribed? — then in that
ordinary sense of the word 'could' in which it expresses our responsibil-
ity for our actions, men could have brought about the good result with-
out the evil means. They could have done so if they had been better. It
was owing to human wickedness — if less on Caesar's part, then so much
the more on the part of innumerable others — that the wrong -doing of
those wars was the appropriate means to this ulterior good. So in regard
to the other cases instanced. It is idle to speculate on other means by
which the permanent pacification of India, or unification of Germany or
liberation of Christians in European Turkey might have been brought
about than those by which each result respectively has been brought
about; but it is important to bear in mind that the innumerable wrong
acts involved in achieving them acts wrong because violations of the
rights of those directly affected by them did not cease to be wrong acts
because under the given condition of things the results specified would
not have been obtained without them. This given condition of things
was not like that (e.g.) which compels the castaways from a shipwreck,
so many days from shore and with only so much provision in their boat,
to draw lots which shall be thrown overboard. It was a condition of
things which human wickedness, through traceable and untraceable chan-
nels, brought about. If the individual promoters of wars, which through
the medium of multitudinous wrong-doing have yielded good to man-
kind, have been really influenced by desire for any such good — and
much scepticism is justified in regard to such a supposition — then so
much less of the guilt of the wrong-doing has been theirs. No nation, at
any rate, that has taken part in such wars can fairly take credit for
having been governed by such a motive. It has been either a passive
instrument in the hands of its rulers or has been animated by less worthy
motives, very mixed but of which perhaps a diffused desire for excite-

Principles of Political Obligatioii/127

ment has been the most innocent. On what reasonable ground can En-
glishmen or Germans or Russians claim that their several nations took
part in the wars by which India was pacified, Germany unified, Bul-
garia liberated, under the dominant influence of a desire for human good?
Rather, if the action of a national conscience in such matters is possible
at all, they should take shame for their share in that general human
selfishness which rendered certain conditions of human development
only attainable by such means.

166. Reverting then to the questions which arose out of the asser-
tion of a right to free life on the part of the individual man as such
(§156), it appears that the first must be answered in the negative. No
state of war can make the destruction of man's life by man other than a
wrong, though the wrong is not always chargeable upon all the parties
to a war. The second question is virtually answered by what has been
said about the first. In regard to the state according to its idea the ques-
tion could not arise, for according to its idea the state is an institution in
which all rights are harmoniously maintained, in which all the capaci-
ties that give rise to rights have free play given to them. No action in its
own interest of a state that fulfilled this idea could conflict with any true
interest or right of general society, of the men not subject to its law
taken as a whole. There is no such thing as an inevitable conflict be-
tween states. There is nothing in the nature of the state that, given a
multiplicity of states, should make the gain of the one the loss of the
other. The more perfectly each one of them attains its proper object of
giving free scope to the capacities of all persons living on a certain
range of territory, the easier it is for others to do so; and in proportion as
they all do so the danger of conflict disappears.

167. On the other hand, the imperfect realisation of civil equality in
the full sense of the term in certain states is in greater or less degree a
source of danger to all. The presence in states either of a prerogatived
class or of a body of people who, whether by open denial of civil rights
or by restrictive laws, are thwarted in the free development of their
capacities, or of an ecclesiastical organisation which disputes the au-
thority of the state on matters of right and thus prevents the perfect civil
fusion of its members with other citizens, always breeds an imagination
of there being some competition of interests between states. The privi-
leged class involuntarily believes and spreads the belief that the interest
of the state lies in some extension without, not in an improvement of
organisation within. A suffering class attracts sympathy from without

128/T.H. Green

and invites interference with the state which contains it; and that state
responds not by heahng the sore but by defending what it conceives to
be its special interests, but which are only special on account of its bad
organisation, against aggression. Or perhaps the suffering population
overflows into another state, as the Irish into America, and there be-
comes a source not only of internal difficulty but of hostile feeling be-
tween it and the state where the suffering population still survives. People,
again, who take their direction in matters which the state treats as be-
longing to itself from an ecclesiastical power external to the state under
which they live, are necessarily in certain relations alien to that state,
and may at any time prove a source of apparently conflicting interests
between it and some other state which under the influence of the hostile
ecclesiastical power espouses their cause. Remove from European states,
as they are and have been during the last hundred years, the occasions
of conflict, the sources of apparently competing interests, which arise in
one or other of the ways mentioned either from the mistaken view of
state interests which a privileged class inevitably takes or from the pres-
ence in them of oppressed populations, or from what we improperly call
the antagonism of religious confessions and there would not be or have
been anything to disturb the peace between them. And this is to say that
the source of war between states lies in their incomplete fulfilment of
their function; in the fact that there is some defect in the maintenance or
reconciliation of rights among their subjects.

168. This is equally true in regard to those causes of conflict which
are loosely called 'religious.' These do not arise out of any differences
between the convictions of different people in regard to the nature of
God or their relations to Him, or the right way of worshipping Him, but
either out of some aggression upon the religious freedom of certain people,
made or allowed by the powers of the state, which thus puts these people
in the position of an alien or unenfranchised class, or else out of an
aggression on the rights of the state by some corporation calling itself
spiritual but really claiming sovereignty over men's actions in the same
relations in which the state claims to determine them. There would be
nothing tending to international disturbance in the fact that bodies of
people who worship God in the Catholic manner live in a state where the
majority worship in the Greek or Protestant manner and alongside of
another state where the majority is Catholic but for one or other or both
of these circumstances, viz. if the Catholic worship and teaching is in-
terfered with by the Protestant or Greek state, and that Catholics are

Principles of Political Obligatioii/129

liable to a direction by a power which claims to regulate men's transac-
tions with each other by a law of its own, and which may see fit (e.g.) to
forbid the Catholic subjects in the Greek or Protestant state from being
married, or having their parents buried, or their children taught the nec-
essary acts, in the manner which the state directs. This reciprocal inva-
sion of right — the invasion of the rights of the state by the church on one
side, and on the other the restriction placed by the sovereign upon the
subject's freedom, not of conscience (for that is impossible), but of ex-
pressing his conscience in word and act — has sometimes caused a state
of things in which certain of the subjects of a state have been better
affected to another state than to their own, and in such a case there is an
element of natural hostility between the states. An obvious instance to
give of this relation between states would have been that between Rus-
sia and Turkey if Turkey could be considered to have been constituted
as a state at all. Perhaps a better instance would be the position of Ire-
land in the past — its disaffection to England and gravitation, first to
France, then to the United States, caused chiefly by Protestant penal
laws which in turn were at least provoked by the aggressive attitude of
the church towards the English state. Whenever a like invasion of rights
still takes place, e.g., in the treatment of the Catholic subjects of Russia
in Poland, in the ultramontane movement of resistance to certain re-
quirements of the state among the Catholic subjects of Germany, it tends
to international conflict. And what is now a somewhat remote tendency
has in the past been a formidable stimulant to war.

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 lost in a higher right, which
attaches to wrong cannot be held to be 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 super-
seded by another with advantage to the ends for which the true state
exists, that needs to defend its interests by action injurious to those out-
side it. Hence there is no holding that a state is justified in doing what-
ever its ground for interests seem to require, irrespectively of effects on

130/T.H. Green

other men. If those effects are bad, involving either a direct violation of
personal rights or obstruction to the moral development of society any-
where in the world, then there is no ultimate justification for the politi-
cal 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 (e.g., the Germans 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 in Afghanistan for the sake of acquiring a scien-
tific frontier;) must depend (1) on the nature of the interests thus de-
fended, (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 lie 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 inter-
ests, carry very little conviction; that a state is not an abstract complex
of institutions for maintenance of rights, but a nation, a people, possess-
ing 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 any-
thing; 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 phi-
losophers 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 impar-

Principles of Political Obligation/lSl

tially; and that this state of things cannot be altered without the estab-
lishment of a common constraining power, which would mean the ex-
tinction 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 effec-
tual 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 without interfering good

132/T.H. Green

works which benefit their fellow-citizens 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. And 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 con-
trolled 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 be-
longs properly not to the politeia [constitutional state], but to the
dynasteia [arbitrary oligarchy]. The Greek states, however complete
might be the equality of their citizens among themselves, were all
dynasteiai in relation to some subject populations, and, as such, jealous
of each other. The Peloponnesian war was eminently a war of rival
dynasteia. 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 dynasteiai of the past, or arise out of the very incom-
plete manner in which as yet, over most of Europe the potiteia has su-
perseded the dynasteia. 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.

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 dynasteiai. The influ-
ences which have given rise to and keep up those armies essentially
belong to a state of things in which mankind — even European mankind

Principles of Political Obligatioii/133

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 dynasteia over the coun-
tries which most directly felt the effects of the revolution. (2) The conse-
quent 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 dynasteia. (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 politeia, or civitas and still
offer a tempting field to the ambition of rival dynasteiai, Austrian, Rus-
sian, 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 char-
acter which would not belong to it simply as a state, but brings it into
outward relations with the dynasteiai 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 be-
tween 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 it becomes, the more the motives and occa-
sions 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 sell-
ing of alcohol, but in such development of activity as is good on the
whole). This again means freer 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 contribu-
tion 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

134/T.H. Green

sense of common interests between them, which war would infringe,
becomes stronger. The bond of peace thus established is sometimes de-
preciated 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 ac-
quaintance 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, insuffi-
cient. 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,
which has become habitual with him and regulates his conduct without
his asking any 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 inter-
est were the medium through which a wider range of persons came to be
brought within its range. And thus, although considerations of an iden-
tity 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 calcu-
lation of their several interests as does the idea which regulates the con-
duct of the good citizen.

175. If the restraining 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 un-
fairness in deahng 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 sev-
eral peoples, as they should become with the due organisation of the
state, and thus have no dynastic interests of their own in embroiling one

Principles of Political Obligation/l 35

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 more 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
organization of mankind into states in the sense explained is a step to-
wards it.

L. The Right of the State to Punish

176. We come now to the third of the questions raised [§156] 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 (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 action as interferes with
the possibility of free action contributory to social good. This consti-
tutes the right of punishment the right so far to use force upon a person
(treat him as an animal or a thing) as may be necessary to save others
from this interference.

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

136/T.H. Green

be followed by, or indeed implies, a corresponding theory of punish-
ment in detail a theory which considers what particular acts are punish-
able, 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 punish-
ment 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 an-
swer 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 best avoided.
It is not itself to a misunderstanding, that it is perhaps 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 super-
sede 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 pri-
vate 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 seven-
teenth 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 na-
ture 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 equiva-
lent of the private rights which individuals would severally possess if
there were no public equivalent for them. It is to suppose that to have
been a right which in truth, under the supposed conditions, would merely

Principles of Political Obligation/l 37

have been animal impulse and power and public right (which is a pleo-
nasm, for all right is public) to have resulted from the combination of
these animal impulses and powers — to suppose that from a state of things
in which 'homo homini lupus' ['man is no man, but a wolf, to a stranger'],
by mere combination of wolfish impulses there could result the state of
things in which 'homo homini deus' ['man is but a god to a stranger'].

179. In a state of things in which private vengeance for hurt in-
flicted 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 the in-
dividual, 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 fami-
lies at feud.

1 80. From this state of things it is a long step to the regime 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 aveng-
ing 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 which properly speaking was the only

138/T.H. Green

right the individual ever had, and from the first, or ever since a perma-
nent family tie existed, was present as a qualifying and restraining ele-
ment 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.

1 8 1 . But it will be asked, how upon this view of the nature of pun-
ishment as inflicted by the state it can be considered retributory. If no
private vengeance — no vengeance of the injured individual — is involved
in punishment, there can be no vengeance in it at all. The conception of
vengeance is quite inappropriate to the action of society or the state on
the criminal. The state cannot be supposed capable of vindictive pas-
sion. Nor, if the essence of crime is a wrong done to society, does it
admit of retaliation upon the person committing it. A hurt done to an
individual can be requited by the infliction of a like hurt upon the person
who has done it; but no equivalent of wrong done to society can be paid
back to the doer of it.

182. It is true that there is such a thing as a national desire for
revenge (France and Germany): and, if a state = a nation organised in a
certain way why should it not be 'capable of vindictive passion'? No
doubt there is a unity of feeling among the members of a nation which
makes them feel any loss of strength, real or apparent, sustained by the
nation in its corporate character, as a hurt or disgrace to themselves,
which they instinctively desire to revenge. The corporate feeling is so
strong that individuals feel themselves severally hurt in the supposed
hurt of the nation. But when it is said that a crime is an offence against
the state, it is not meant that the body of persons forming the nation feel
any hurt in the sense in which the person robbed or wounded does such
a hurt as excites a natural desire for revenge. What is meant is that there
is a violation of a system of rights which the nation has, no doubt, an
interest in maintaining, but a purely social interest, quite different from
the egoistic interest of the individual of which the desire for vengeance
is a form. A nation is capable of vindictive feeling, but not so a nation as
acting through the medium of a settled, impartial, general law for the
maintenance of rights, and that is what we mean when we talk of the
state as that against which crimes are committed and which punishes
them.

183. It is true that when a crime of a certain sort, e.g., a cold-
blooded murder, has been committed, a popular sympathy with the suf-

Principles of Political Obligation/l 39

ferer is excited, which expresses itself in the wish to 'serve out' the
murderer. This has some resemblance to the desire for personal revenge,
but is really quite different, because not egoistic. Indignation against
wrong done to another has nothing in common with desire to revenge a
wrong done to oneself. It borrows the language of private revenge, just
as the love of God borrows the language of sensuous affection. Such
indignation is inseparable from the interest in social well-being, and
along with it is the chief agent in the establishment and maintenance of
legal punishment. Law indeed is necessarily general while indignation is
particular in its reference; and accordingly the treatment of any particu-
lar crime, so far as determined by law, cannot correspond with the in-
dignation which the crime excites, but the law merely determines the
general category under which the crime falls, and fixes certain limits to
the punishment that may be inflicted under that category. Within those
limits discretion is left to the judge as to the sentence that he passes, and
his sentence is in part influenced by the sort of indignation which, in the
given state of public sentiment, the crime is calculated to excite; though
generally much more by his opinion as to the amount of terror required
for the prevention of prevalent crime. Now what is it in punishment that
this indignation demands? If not the sole foundation of public punish-
ment, it is yet inseparable from that public interest on which the system
of rights, with the corresponding system of punishments protective of
rights, depends. In whatever sense then this indignation demands retri-
bution in punishment, in that sense retribution would seem to be a nec-
essary element in punishment. It demands retribution in the sense of
demanding that the criminal should have his due, should be dealt with
according to his deserts, should be punished justly.

1 84. This is quite a different thing from an equivalence between the
amount of suffering inflicted by the criminal and that which he sustains
in punishment. The amount of suffering which is caused by any crime is
really as incalculable as that which the criminal endures in punishment,
whatever the punishment. It is only in the case of death for murder that
there is any appearance of equivalence between the two sufferings, and
in this case the appearance is quite superficial. The suffering involved
in death depends almost entirely on the circumstances, which are abso-
lutely different in the case of the murdered man and in that of the man
executed for murder. When a man is imprisoned with hard labour for
robbery there is not even an appearance of equivalence of suffering
between the crime and the punishment. In what then does the justice of

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a punishment, or its correspondence with the criminal's deserts consist?
It will not do to say that these terms merely represent the result of an
association of ideas between a crime and the penalty which we are ac-
customed to see inflicted on it; that society has come to attach certain
penalties to certain actions as a result of the experience ( 1 ) of suffering
and loss caused by those acts, and (2) of the kind of suffering of which
the expectation will deter men from doing them; and that these penalties
having become customary, the onlookers and the criminal himself, when
one of them is inflicted, feel that he has got what was to be expected,
and call it his due or desert or a just punishment. If this were the true
account of the matter, there would be nothing to explain the difference
between the emotion excited by the spectacle of a just punishment in-
flicted or the demand that it should be inflicted, on the one side, and on
the other that excited by the sight of physical suffering following ac-
cording to the usual course of things upon a physical combination of
circumstances or the expectation that such suffering will follow. If it is
said that the difference is explained by the fact that in one case both the
antecedent (the criminal act) and the consequent represent voluntary
human agency, while in the other they do not, we reply. Just so, but for
that reason the conception of a punishment as just differs wholly from
any conception of it that could result either from its being customary or
from the infliction of such punishment having been commonly found a
means for protecting us against hurt.

185. The idea of punishment implies on the side of the person pun-
ished at once a capacity for determination by conception of a common
or public good, or in other words a practical understanding of the nature
of rights as founded on relations to such public good, and an actual
violation of a right or omission to fulfil an obligation, the right or obli-
gation being one of which the agent might have been aware and the
violation or omission one which he might have prevented. On the side of
the authority punishing, it implies equally a conception of right founded
on relation to public good, and one which, unlike that on the part of the
criminal, is realised in act; a conception of which the punitive act, as
founded on a consideration of what is necessary for the maintenance of
rights, is the logical expression. A punishment is unjust if either element
is absent; if either the act punished is not a violation of known rights or
omission to fulfil known obligations of a kind which the agent might
have prevented, or the punishment is one that is not required for the
maintenance of rights, or (which comes to the same thing) if the osten-

Principles of Political Obligatioii/141

sible rights for the maintenance of which the punishment is required are
not real rights — not liberties of action or acquisition which there is any
real public interest in maintaining.

1 86. When the specified conditions of just punishment are fulfilled,
the person punished himself recognises it as just, as his due or desert,
and it is so recognised by the onlooker who thinks himself into the situ-
ation. The criminal, being susceptible to the idea of public good, and
through it of rights, though this idea has not been strong enough to
regulate his actions, sees in the punishment its natural expression. He
sees that the punishment is his own act returning on himself, in the sense
that it is the necessary outcome of his act in a society governed by the
conception of rights — a conception which he appreciates and to which
he does involuntary reverence.

It is the outcome of his act or his act returning upon himself in a
different way from that in which a man's act returns on himself when,
having misused his body, he is visited according to physical necessity
by painful consequences. The cause of the suffering which the act en-
tails in the one case is the relation of the act to a society governed by the
conception of rights, in the other it is not. For that reason, the painful
consequence of the act to the doer in the one case is, in the other is not,
properly a punishment. We do indeed commonly speak of the painful
consequences of imprudent or immoral acts (immoral as distinct from
illegal) as a punishment of them, but this is either metaphorically or
because we think of the course of the world as regulated by a divine
sovereign, whom we conceive as a maintainer of rights like the sover-
eign of a state. We may. think of it as divinely regulated, and so regu-
lated with a view to the realisation of moral good, but we shall still not
be warranted in speaking of the sufferings which follow in the course of
nature upon certain kinds of conduct as punishments, according to the
distinctive sense in which crime is punished, unless we suppose the
maintenance of rights to be the object of the moral government of the
world — which is to put the cart before the horse for, as we have seen,
rights are relative to morality, not morality to rights (the ground on
which certain liberties of action and acquisition should be guaranteed as
rights being that they are conditions of the moral perfection of society).

While there would be reason, then, as against those who say that the
punishment of crime is merely preventive, in saying that it is also re-
tributive, if the needed correction of the 'merely preventive' doctrine
could not be more accurately stated, it would seem that the truth can be

142/T.H. Green

more accurately stated by the proposition that punishment is not justi-
fied unless it is just, and that it is not just unless the act punished is an
intentional violation of real right or neglect of real obligation which the
agent could have avoided i.e., unless the agent knowingly and by inten-
tional act interferes with some freedom of action or acquisition which
there is a public interest in maintaining and unless the future mainte-
nance of rights requires that the criminal be dealt with as he is in the
punishment.

187. It is clear, however, that this requirement that punishment of
crime should be just may be covered by the statement that in its proper
nature it is preventive if the nature of that which is to be prevented by it
is sufficiently defined. Its proper function is in the interest of rights that
are genuine (in the sense explained), to prevent actions of the kind de-
scribed by associating in the mind of every possible doer of them a
certain terror with the contemplation of the act such terror as is neces-
sary on the whole to protect the rights threatened by such action. The
whipping of an ill-behaved dog is preventive, but not preventive in the
sense in which the punishment of crime is so because (1) the dog's ill
conduct is not an intentional violation of a right or neglect of a known
obligation, the dog having no conception of right or obligation, and (2)
for the same reason the whipping does not lead to the association of
terror in the minds of other dogs with the violation of rights and neglect
of obligations. To shoot men down who resist a successful coup d' tat
may be effectually preventive of further resistance to the government
established by the coup d' tat, but it does not satisfy the true idea of
punishment because the terror produced by the massacre is not neces-
sary for the protection of genuine rights — rights founded on public in-
terest. To hang men for sheep-stealing, again, does not satisfy the idea;
because, though it is a genuine right that sheep-stealing violates, in a
society where there was any decent reconciliation of rights no such ter-
ror as is caused by the punishment of death would be required for pro-
tection of the right. It is because the theory that punishment is 'merely
preventive' favours the notion that the repetition of any action which
any sufficient body of men find inconvenient may justifiably be pre-
vented by any sort of terror that may be convenient for the purpose, that
it requires to be guarded by substituting for the qualifying 'merely' a
statement of what it is which the justifiable punishment prevents and
why it prevents it.

188. But does our theory, after all has been said about the wrong-

Principles of Political Obligatioii/143

ness of punishment that is not just, afford any standard for the appor-
tionment of just punishment, any criterion of the amount of interference
with a criminal's personal rights that is appropriate to his crime, except
such as is afforded by a prevalent impression among men as to what is
necessary for their security? Can we construe it so as to afford such a
criterion without at the same time condemning a great deal of punish-
ment which yet society could be never brought to dispense with? Does it
really admit of being applied at all in the presence of the admitted im-
possibility of ascertaining the degree of moral guilt of criminals (as
depending on their state of character or habitual motives)? How, ac-
cording to it, can we justify punishments inflicted in the case of 'cul-
pable negligence,' e.g. when an engine-driver by careless driving, for
which we think very little the worse of him, is the occasion of a bad
accident, and is heavily punished in consequence?

189. It is true that there can be no a priori criterion of just punish-
ment, except of an abstract and negative kind. We may say that no pun-
ishment is just, unless the rights which it serves to protect are powers on
the part of individuals or corporations of which the general maintenance
is necessary to the well-being of society on the whole and unless the
terror which the punishment is calculated to inspire is necessary for
their maintenance. For a positive and detailed criterion of just punish-
ment we must wait till a system of rights has been established in which
the claims of all men, as founded on their capacities for contributing to
social well-being, are perfectly harmonised, and till experience has shown
the degree and kind of terror with which men must be affected in order
to the suppression of the antisocial tendencies which might lead to the
violation of such a system of rights. And this is perhaps equivalent to
saying that no complete criterion of just punishment can be arrived, at
till punishment is no longer necessary, for the state of things supposed
could scarcely be realised without bringing with it an extinction of the
tendencies which state-punishment is needed to suppress. Meanwhile
there is no method of approximation to justice in punishment but that
which consists in gradually making the system of established rights just,
i.e., in harmonising the true claims of all men, and in discovering by
experience the really efficient means of restraining tendencies to viola-
tion of rights. An intentional violation of a right must be punished, whether
the right violated is one that should be a right or no, on the principle that
social well-being suffers more from violation of any established right,
whatever the nature of the right, than from the establishment as a right

144/T.H. Green

of a power which should not be so established; and it can only be pun-
ished in the way which for the time is thought most efficient by the
maintainers of law for protecting the right in question by associating
terror with its violation. This, however, does not alter the moral duty, on
the part of the society authorising the punishment, to make its punish-
ments just by making the system of rights which it maintains just. The
justice of the punishment depends on the justice of the general system of
rights not merely on the propriety with reference to social well-being of
maintaining this or that particular right which the crime punished vio-
lates, but on the question whether the social organisation in which a
criminal has lived and acted is one that has given him a fair chance of
not being a criminal.

190. We are apt to think that the justice of a punishment depends on
some sort of equality between its magnitude and that of the crime pun-
ished, but this notion arises from a confusion of punishment as inflicted
by the state for a wrong done to society with compensation to the indi-
vidual for damage done him. Neither a crime nor its punishment admits
of strictly quantitative measurement. It may be said, indeed, that the
greater the crime the heavier should be its punishment, but this is only
true if by the 'heavier punishment' is understood that with which most
terror is associated in the popular imagination, and if the conception of
the 'greater crime' is taken on the one hand to exclude any estimation of
the degree of moral guilt, and, on the other hand, to be determined by an
estimate not only of the importance in the social system of the right
violated by the crime but of the amount of terror that needs to be asso-
ciated with the crime in the general apprehension in order to its preven-
tion. But when its terms are thus understood, the statement that the
greater the crime the heavier should be its punishment, becomes an iden-
tical proposition. It amounts to this that the crime which requires most
terror to be associated with it in order to its prevention should have most
terror thus associated with it.

191. But why do the terms 'heavier punishment' and 'greater crime'
need to be thus understood? Why should not the 'greater crime' be un-
derstood to mean the crime implying most moral wickedness, or partly
this, partly the crime which violates the more important kind of right?
Why should a consideration of the amount of terror that needs to be
associated with it in order to its prevention enter into the determination
of the 'greater crime' at all? Why again should not the 'heavier punish-
ment' mean simply that in which the person punished actually suffers

Principles of Political Obligatioii/145

most pain? Why should it be taken to mean that with which most terror
is associated upon the contemplation? In short, is not the proposition in
question at once true and significant in the sense that the crime which
implies most moral depravity, or violates the most important right (such
as the right to life), or which does both, should be visited with the pun-
ishment that involves most pain to the sufferer?

192. The answer is: As regards heaviness of punishment, itis not in
the power of the state to regulate the amount of pain which it causes to
the person whom it punishes. If it could only punish justly by making
this pain proportionate in each case to the depravity implied in the crime,
it could not punish justly at all. The amount of pain which any kind of
punishment causes to the particular person depends on his temperament
and circumstances, which neither the state nor its agent, the judge, can
ascertain. But if it could be ascertained, and if (which is equally impos-
sible) the amount of depravity implied in each particular crime could be
ascertained likewise, in order to make the pain of the punishment pro-
portionate to the depravity, a different punishment would have to be
inflicted in each case according to the temperament and circumstances
of the criminal. There would be an end to all general rules of punish-
ment.

193. In truth, however, the state in its capacity as the sustainer of
rights and it is in this capacity that it punishes — has nothing to do with
the amount of moral depravity in the criminal, and the primary refer-
ence in punishment, as inflicted by the state, is not to the effect of the
punishment on the person punished but to its effect on others. The con-
siderations determining its amount should be prospective rather than
retrospective. In the crime a right has been violated. No punishment can
undo what has been done, or make good the wrong to the person who
has suffered. What it can do is to make less likely the doing of a similar
wrong in other cases. Its object, therefore, is not to cause pain to the
criminal for the sake of causing it, nor chiefly for the sake of preventing
him, individually, from committing the crime again, but to associate
terror with the contemplation of the crime in the mind of others who
might be tempted to commit it. And this object, unlike that of making
the pain of the punishment commensurate with the guilt of the criminal,
is in the main attainable. The effect of the spectacle of punishment on
the onlooker is independent of any minute inquiry into the degree to
which it affects the particular criminal. The attachment of equal penal-
ties to offences that are alike in respect of the importance of the rights

146/T.H. Green

which they violate, and in respect of the ordinary temptations to them,
will on the whole lead to the association of an equal amount of terror
with the prospect of committing the like offences in the public mind.
When the circumstances indeed of two criminals guilty of offences alike
in both the above respects are very greatly and obviously different so
different as to make the operation of the same penalty upon them very
conspicuously different — then the penalty may be varied without inter-
fering with its terrific effect on the public mind. We will suppose, e.g.,
that a fraud on the part of a respectable banker is equivalent, both in
respect of the rights which it violates and of the terror needed to prevent
the recurrence of like offences, to a burglary. It will not follow because
the burglary is punished by imprisonment with hard labour that hard
labour should be inflicted on the fraudulent banker likewise. The inflic-
tion of hard labour is in everyone's apprehension so different to the
banker from what it is to the burglar, that its infliction is not needed in
order to equalise the terror which the popular imagination associates
with the punishment in the two cases.

194. On the same principle may be justified the consideration of
extenuating circumstances in the infliction of punishment. In fact, whether
under that name or another, they are taken account of in the administra-
tion of criminal law among all civilised nations. 'Extenuating circum-
stances' is not a phrase in use among our lawyers, but in fact consider-
ation of them does constantly, with the approval of the judge, convert
what would otherwise have been conviction for murder into conviction
for manslaughter, and, when there has been conviction for murder, leads
to commutation of the sentence. This fact is often taken to show that the
degree of moral depravity on the part of the criminal, the question of his
character and motive, is and must be considered in determining the pun-
ishment due to him. In truth, however, 'extenuating circumstances' may
very well make a difference in the kind of terror which needs to be
associated with a crime in order to the future protection of rights, and
under certain conditions the consideration of them may be sufficiently
justified on this ground. Suppose a theft by a starving man, or a hare
shot by an angry farmer whose corn it is devouring. These are crimes,
but crimes under such extenuating circumstances that there is no need
to associate very serious terror with them in order to the protection of
essential rights of property. In the latter case the right which the farmer
violates is one which perhaps might be disallowed altogether without
interference with any right which society is interested in maintaining. In

Principles of Political Obligatioii/147

the former case the right violated is a primary and essential one. one
which, where there are many starving people, is in fact pretty sure to be
protected by the most stringent penalties. And it might be argued that on
the principle stated this is as it should be that so far from the hunger of
the thief being a reason for lightening his punishment, it is a reason for
increasing it, in order that the special temptation to steal when far gone
in hunger may, if possible, be neutralised by a special terror associated
with the commission of the crime under those conditions. But this would
be a one-sided application of the principle. It is not the business of the
state to protect one order of rights specially,, but all rights equally. It
ought not therefore to protect a certain order of rights by associating
special terror with the violation of them when the special temptation to
their violation itself implies a violation of right in the persons of those
who are so tempted, as is the case when a general danger to property
arises from the fact that many people are on the edge of starvation. The
attempt to do so is at once ineffectual and diverts attention from the true
way of protecting the endangered right, which is to prevent people from
falling into a state of starvation. In any tolerably organised society the
condition of a man, ordinarily honest and industrious, who is driven to
theft by hunger, will be so abnormal that very little terror needs to be
associated with the crime as so committed in order to maintain the sanc-
tity of property in the general imagination. Suppose again a man to be
killed in a quarrel arising out of his having tampered with the fidelity of
his neighbour's wife. In such a case 'extenuating circumstances' may
fairly be pleaded against the infliction of the extremest penalty because
the extremest terror does not need to be associated with homicide, as
committed under such conditions, in order to the general protection of
human life, and because the attempt so to associate it would tend, so far
as successful, to weaken the general sense of the wrong the breach of
family, right — involved in the act which, in the case supposed, provokes
the homicide.

195. 'After all,' it may be said, 'this is a far-fetched way of explain-
ing the admission of extenuating circumstances as modifying the pun-
ishment of crime. Why so strenuously avoid the simpler explanation,
that extenuating circumstances are taken into account because they are
held to modify the moral guilt of the crime? Is not their recognition a
practical proof that punishment of a crime by the state represents the
moral disapproval of the community? Does it not show that, however
imperfectly the amount of punishment inflicted on a crime may in fact

148/T.H. Green

correspond to its moral wickedness, it is generally felt that it ought to do
so?'

196. Answer: The reasons for holding that the state neither can nor
should attempt to adjust the amount of punishment which it inflicts on a
crime to the degree of moral depravity which the crime implies are (1).
That the degree of moral depravity, implied in any crime is unascertain-
able. It depends on the motive of the crime, and on this as part of the
general character of the agent; on the relation in which the habitual set
of his character stands to the character habitually set on the pursuit of
goodness. No one can ascertain this in regard to himself. He may know
that he is always far from being what he ought to be ; that one particular
action of his represents on the whole, with much admixture of inferior
motives, the better tendency; another, with some admixture of better
motives, the worse. But any question in regard to the degree of moral
goodness or badness in any action of his own or of his most intimate
friend is quite unanswerable. Much less can a judge or jury answer such
a question in regard to an unknown criminal. We may be sure indeed
that every ordinary crime — nay, perhaps even that of the 'disinterested
rebel' — implies the operation of some motive which is morally bad —
for though it is not necessarily the worst men who come into conflict
with established rights, it probably never can be the best but the degree
of badness implied in such a conflict in any particular case is quite
beyond our ken, and it is this degree that must be ascertained if the
amount of punishment which the state inflicts is to be proportionate to
the moral badness implied in the crime. (2) The notion that the state
should, if it could, adjust the amount of punishment which it inflicts on
a crime to the moral wickedness of the crime rests on a false view of the
relation of the state to morality. It implies that it is the business of the
state to punish wickedness as such. But it has no such business. It can-
not undertake to punish wickedness, as such, without vitiating the dis-
interestedness of the effort to escape wickedness and thus checking the
growth of a true goodness of the heart in the attempt to promote a good-
ness which is merely on the surface. This, however, is not to be under-
stood as meaning that the punishment of crime serves no moral purpose.
It does serve such a purpose, and has its value in doing so, but only in
the sense that the protection of rights, and the association of terror with
their violation, is the condition antecedent of any general advance in
moral well-being.

197. The punishment of crime, then, neither is, nor can, nor should

Principles of Political Obligatioii/149

be adjusted to the degree of moral depravity, properly so called, implied
in the crime. But it does not therefore follow that it does not represent
the disapproval which the community feels for the crime. On the whole,
making allowance for the fact that law and judicial custom vary more
slowly than popular feeling, it does represent such disapproval. And the
disapproval may fitly be called moral, so far as that merely means that
it is a disapproval relating to voluntarily action. But it is disapproval
founded on a sense of what is necessary for the protection of rights, not
on a judgment of moral good and evil of that kind which we call con-
science when it is applied to our own actions, and which is founded on
an ideal of moral goodness with which we compare our inward conduct
(inward, as representing motives and character). It is founded essen-
tially on the outward aspect of a man's conduct, on the view of it as
related to the security and freedom in action and acquisition of other
members of society. It is true that this distinction between the outward
and inward aspects of conduct is not present to the popular mind. It has
not been recognised by those who have been the agents in establishing
the existing law of crimes in civilised nations. As the state came to
control the individual or family in revenging hurts, and to substitute its
penalties for private vengeance, rules of punishment came to be enacted
expressive of general disapproval, without any clear consciousness of
what was the ground of the disapproval. But in fact it was by what have
been just described as the outward consequences of conduct that a gen-
eral disapproval of it was ordinarily excited. Its morality in the stricter
or inward sense was not matter of general social consideration. Thus in
the main it has been on the ground of its interference with the general
security and freedom in action and acquisition, and in proportion to the
apprehension excited by it in this respect, that conduct has been pun-
ished by the state. Thus the actual practice of criminal law has on the
whole corresponded to its true principle. So far as this principle has
been departed from, it has not been because the moral badness of con-
duct, in the true or inward sense, has been taken account of in its treat-
ment as a crime for this has not been generally contemplated at all, but
because 'religious' considerations have interfered. Conduct which did
not call for punishment by the state as interfering with any true rights
(rights that should be rights) has been punished as 'irreligious.' This,
however, did not mean that it was punished on the ground of moral
badness, properly so called. It meant that its consequences were feared
either as likely to weaken the belief in some divine authority on which

150/T.H. Green

the established system of rights was supposed to rest, or as likely to
bring evil on the community through provoking the wrath of some un-
seen power.

198. This account of the considerations which have regulated the
punishment of crimes explains the severity with which 'criminal negli-
gence, is in some cases punished, and that severity is justified by the
account given of the true principle of criminal law, the principle, viz.,
that crime should be punished according to the importance of the right
which it violates and to the degree of terror which in a well-organised
society needs to be associated with the crime in order to the protection
of the right. It cannot be held that the carelessness of an engine-driver
who overlooks a signal and causes a fatal accident implies more moral
depravity than is implied in such negligence as all of us are constantly
guilty of. Considered with reference to the state of mind of the agent, it
is on a level with multitudes of actions and omissions which are not
punished at all. Yet the engine-driver would be found, guilty of man-
slaughter and sentenced to penal servitude. The justification is not to be
found in distinctions between different kinds of negligence on the part of
different agents but in the effect of the negligence in different cases upon
the rights of others. In the case supposed, the most important of all
rights, the right to life, on the part of railway passengers depends for its
maintenance on the vigilance of the drivers. Any preventible failure in
such vigilance requires to have sufficient terror associated with it in the
mind of other engine-drivers to prevent the recurrence of a like failure in
vigilance. Such punishment is just, however generally virtuous the vic-
tim of it, because necessary to the protection of rights of which the
protection is necessary to social well-being; and the victim of it, in pro-
portion to his sense of justice, which means his habit of practically
recognising true rights, will recognise it as just.

199. On this principle crimes committed in drunkenness must be
dealt with. Not only is all consideration of depravity of motive specially
inapplicable to them — since the motives actuating a drunken man often
seem to have little connection with his habitual character; it is not al-
ways the case that a crime committed in drunkenness is even inten-
tional. When a man in a drunken rage kills another, he no doubt intends
to kill him, or at any rate to do him 'grievous bodily harm,' and perhaps
the association of great penal terror with such an offence may tend to
restrain men from committing it even when drunk; but when a drunken
mother lies on her child and smothers it, the hurt is not intentional but

Principles of Political Obligatioii/151

accidental. The drunkenness, however, is not accidental, but preventible
by the influence of adequate motives. Itis therefore proper to treat such
a violation of right, though committed unknowingly, as a crime, and to
associate terror with it in the popular imagination, in order to the pro-
tection of rights, by making people more careful about getting drunk,
about allowing or promoting drunkenness, and about looking after
drunken people. It is unreasonable, however, to do this and at the same
time to associate so little terror, as in practice we do, with the promotion
of dangerous drunkenness. The case of a crime committed by a drunk-
ard is plainly distinguishable from that of a crime committed by a luna-
tic, for the association of penal terror with the latter would tend neither
to prevent a lunatic from committing a crime nor people from becoming
lunatics.

200. The principle above stated, as that according to which punish-
ment by the state should be inflicted and regulated, also justifies a dis-
tinction between crimes and civil injuries, i.e., between breaches of right
for which the state inflicts punishment without redress to the person
injured, and those for which it procures or seeks to procure redress to
the person injured without punishment of the person causing the injury.
We are not here concerned with the history of this distinction, nor with
the question whether many breaches of right now among us treated as
civil injuries ought not to be treated as crimes, but with the justification
that exists for treating certain kinds of breach of right as cases in which
the state should interfere to procure redress for the person injured, but
not in the way of inflicting punishment on the injurer until he wilfully
resists the order to make redress. The principle of the distinction as
ordinarily laid down, viz. that civil injuries 'are violations of public or
private rights, when considered in reference to the injury sustained by
the individual,' while crimes are 'violations of public or private rights,
when considered in reference to their evil tendency as regards the com-
munity at large, is misleading because if the well-being of the commu-
nity did not suffer in the hurt done to the individual, that hurt would not
be a violation of a right in the true sense at all, nor would the community
have any ground for insisting that the hurt shall be redressed, and for
determining the mode in which it shall be redressed. A violation of right
cannot in truth be considered merely in relation to injury sustained by an
individual, for thus considered it would not be a violation of right. It
may be said that the state is only concerned in procuring redress for
civil injuries because if it left an individual to procure redress in his own

152/T.H. Green

way, there would be no public peace. But there are other and easier
ways of preventing fighting than by procuring redress of wrongs. We
prevent our dogs from fighting, not by redressing wrongs which they
sustain from each other (of wrongs as of rights they are in the proper
sense incapable), but by beating them or tying them up. The community
would not keep the peace by procuring redress for hurt or damage sus-
tained by individuals unless it conceived itself as having interest in the
security of individuals from hurt and damage, unless it considered the
hurt done to individuals as done to itself. The true justification for treat-
ing some breaches of right as cases merely for redress, others as cases
for punishment, is that, in order to the general protection of rights, with
some it is necessary to associate a certain terror, with others it is not.

201. What then is the general ground of distinction between those
with which terror does, and those with which it does not, need to be
associated? Clearly it is purposeless to seek to associate terror with
breaches of right in the case where the breaker does not know that he is
violating a right, and is not responsible for not knowing it. No associa-
tion of terror with such a breach of right can prevent men from similar
breaches under like conditions. In any case, therefore, in which it is, to
begin with, open to dispute whether a breach of right has been commit-
ted at all — e.g., when it is a question whether a contract has been really
broken owing to some doubt as to the interpretation of the contract or its
application to a particular set of circumstances, or whether a commod-
ity of which someone is in possession properly belongs to another in
such a case, though the judge finally decides that there has been a breach
of right, there is no ground for treating it as a crime or punishing it. If in
the course of judicial inquiry it turns out that there has been fraud by
one or other of the parties to the litigation, a criminal prosecution, hav-
ing punishment, not redress, for its object, should properly supervene
upon the civil suit, unless the consequences of the civil suit are inciden-
tally such as to amount to a sufficient punishment of the fraudulent
party. Again, it is purposeless to associate terror with a breach of obli-
gation which the person committing it knows to be so, but of an obliga-
tion which he has no means of fulfilling, e.g., non-payment of an ac-
knowledged debt by a man who, through no fault of his own, is without
means of paying it. It is only incases of one or other of the above kinds
cases in which the breach of right, supposing it to have been committed,
has presumably arisen either from inability to prevent it or from igno-
rance of the existence of the right that it can be held as an absolute rule

Principles of Political Obligatioii/153

to be no business of the state to interfere penally but only in the way of
restoring, so far as possible, the broken right.

202. But there are many cases of breach of right which can neither
be definitely reduced to one of the above kinds nor distinguished from
them by any broad demarcation; cases in which the breaker of a right
has been ignorant of it because he has not cared to know, or in which his
inability to fulfil it is the result of negligence or extravagance. Whether
these should be treated penally or no will depend partly on the serious-
ness of the wrong done through avoidable ignorance or negligence, partly
on the sufficiency of the deterrent effect incidentally involved in the civil
remedy. In the case e.g., of inability to pay a debt through extravagance
or recklessness, it may be unnecessary and inadvisable to treat the breach
of right penally, in consideration that it is indirectly punished by poverty
and loss of reputation incidental to bankruptcy, and that creditors should
not look to the state to protect them from the consequences of lending on
bad security. The negligence of a trustee, again, may be indirectly pun-
ished by his being obliged to make good the property lost through his
neglect to the utmost of his means. This may serve as a sufficiently
deterrent example without the negligence being proceeded against crimi-
nally Again, damage done to property, by negligence is in England dealt
with civilly, not criminally; and it may be held that in. this case the
liability to civil action is a sufficient deterrent. On the other hand, neg-
ligence which, as negligence, is not really distinguishable from the above,
when its consequences are more serious — e.g., that of the railway ser-
vant whose negligence results in a fatal accident, that of the bank-direc-
tor who allows a misleading statement of accounts to be published,
fraudulently perhaps in the eve of the law, but in fact negligently is
rightly treated criminally. As a matter of principle, no doubt, if inten-
tional violation of the right of property is treated as penal equally with
the violation of the right of life, the negligent violation should be treated
as penal in the one case as much as in the other. But as the consequences
of an action for damages may be virtually though not ostensibly penal to
the person proceeded against, it may be convenient to leave those
negligences which do not, like the negligence of a railway-servant, af-
fect the most important rights, or do not affect rights on a very large
scale as does that of a bank-director, to be dealt with by the civil pro-
cess.

203. The actual distinction between crimes and civil injuries in En-
glish law is no doubt largely accidental. As the historians of law point

154/T.H. Green

out, the civil process, having compensation, not punishment, for its ob-
ject, is the form which the interference of the community for the mainte-
nance of rights originally takes. The community restraining private ven-
geance, helps the injured person to redress, and regulates the way in
which redress shall be obtained. This procedure no doubt implies the
conviction that the community is concerned in the injury done to an
individual, but it is only by degrees that this conviction becomes ex-
plicit, and that the community comes to treat all preventible breaches of
right as offences against itself or its sovereign representative, i.e., as
crimes or penal; in the language of English law, 'as breaches of the
king's peace.' Those offences are first so treated which happen to excite
most public alarm — most fear for general safety (hence, among others,
anything thought sacrilegious). In a country like England, where no code
has been drawn up on general principles, the class of injuries that are
treated penally is gradually enlarged as public alarm happens to be ex-
cited in particular directions, but it is largely a matter of accident how
the classification of crimes on one side and civil injuries on the other
happens to stand at any particular time.

204. According to the view here taken, then, there is no direct refer-
ence in punishment by the state, either retrospective or prospective, to
moral good or evil. The state in its judicial action does not look to the
moral guilt of the criminal whom it punishes, or to the promotion of
moral good by means of his punishment in him or others. It looks not to
virtue and vice but to rights and wrongs. It looks back to the wrong done
in the crime which it punishes ; not, however, in order to avenge it but in
order to the consideration of the sort of terror which needs to be associ-
ated with such wrong -doing in order to the future maintenance of rights.
If the character of the criminal comes into account at all, it can only be
properly as an incident of this consideration. Thus punishment of crime
is preventive in its object; not, however, preventive of any or every evil
or by any and every means, but (according to its idea or as it should be)
justly preventive of injustice; preventive of interference with those pow-
ers of action and acquisition which it is for the general well-being that
individuals should possess, and according to laws which allow those
powers equally to all men. But in order effectually to attain its preven-
tive object and to attain it justly, it should be reformatory When the
reformatory office of punishment is insisted on, the reference may be,
and from the judicial point of view must be, not to the moral good of the
criminal as an ultimate end, but to his recovery from criminal habits as

Principles of Political Obligatioii/155

a means to that which is the proper and direct object of state-punish-
ment, viz., the general protection of rights. The reformatory function of
punishment is from this point of view an incident of its preventive func-
tion, as regulated by consideration of what is just to the criminal as well
as to others. For the fulfilment of this latter function, the great thing, as
we have seen, is by the punishment of an actual criminal to deter other
possible criminals, but for the same purpose, unless the actual criminal
is to be put out of the way or locked up for life, it must be desirable to
reform him so that he may not be dangerous in future. Now when it is
asked why he should not be put out of the way it must not be forgotten
that among the rights which the state has to maintain are included rights
of the criminal himself. These indeed are for the time suspended by his
action in violation of rights, but founded as they are on the capacity for
contributing to social good, they could only be held to be finally for-
feited on the ground that this capacity was absolutely extinct.

205. This consideration limits the kind of punishment which the
state may justly inflict. It ought not in punishing unnecessarily to sacri-
fice to the maintenance of rights in general what may be called the re-
versionary rights of the criminal — rights which, if properly treated, he
might ultimately become capable of exercising for the general good.
Punishment therefore either by death or by perpetual imprisonment is
justifiable only on one of two grounds; either that association of the
extremest terror with certain actions is under certain conditions neces-
sary to preserve the possibility of a social life based on observance of
rights, or that the crime punished affords a presumption of a permanent
incapacity for rights on the part of the criminal. The first justification
may be pleaded for the executions of men concerned in treasonable out-
breaks, or guilty of certain breaches of discipline in war (on supposition
that the war is necessary for the safety of the state and that such punish-
ments are a necessary incident of war). Whether the capital punishment
is really just in such cases must depend, not only on its necessity as an
incident in defence of a certain state, but on the question whether that
state itself is fulfilling its function as a sustainer of true rights. For the
penalty of death for murder both justifications may be urged. It cannot
be defended on any other ground, but it may be doubted whether the
presumption of permanent incapacity for rights is one which in our ig-
norance we can ever be entitled to make. As to the other plea, the ques-
tion is whether, with a proper police system and sufficient certainty of
detection and conviction, the association of this extremest terror with

156/T.H. Green

the murderer is necessary to the security of life. Where the death-pen-
alty, however, is unjustifiable, so must be that of really permanent im-
prisonment; one as much as the other is an absolute deprivation of free
social life, and of the possibilities of moral development which that life
affords. The only justification for a sentence of permanent imprison-
ment in a case where there would be none for capital punishment would
be that, though inflicted as permanent, the imprisonment might be brought
to an end in the event of any sufficient proof appearing of the criminal ' s
amendment. But such proof could only be afforded if the imprisonment
were so modified as to allow the prisoner a certain amount of liberty.

206. If punishment then is to be just, in the sense that in its infliction
due account is taken of all rights, including the suspended rights of the
criminal himself, it must be, so far as public safety allows, reformatory.
It must tend to qualify the criminal for the resumption of rights. As
reformatory, however, punishment has for its direct object the qualifica-
tion for the exercise of rights, and is only concerned with true moralisation
of the criminal indirectly so far as it may result from the exercise of
rights. But even where it cannot be reformatory in this sense, and over
and above its reformatory function in cases where it has one, punish-
ment has a moral end. Just because punishment by the state has for its
direct object the maintenance of rights, it has, like every other function
of the state, indirectly a moral object, because true rights according to
our definition, are powers which it is for the general well-being that the
individual (or association) should possess, and that well-being is essen-
tially amoral well-being. Ultimately, therefore, the just punishment of
crime is for the moral good of the community. It is also for the moral
good of the criminal himself, unless and it is a supposition which we
ought not to make — he is beyond the reach of moral influences. Though
not inflicted for that purpose, and though it would not the less have to be
inflicted if no moral effect on the criminal could be discerned, it is mor-
ally the best thing that can happen to him. It is so, even if a true social
necessity requires that he be punished with death. The fact that society
is obliged so to deal with him affords the best chance of bringing home
to him the anti-social nature of his act. It is true that the last utterances
of murderers generally convey the impression that they consider them-
selves interesting persons, quite sure of going to heaven, but these are
probably conventional. At any rate if the solemn infliction of punish-
ment on behalf of human society, and without any sign of vindictive-
ness, will not breed the shame, which is the moral new birth, presum-

Principles of Political Obligatioii/157
ably nothing else within human reach will.

M. The Right of the State to Promote Morality

207. The right of the individual man, as such, to free life on its negative
side is constantly gaining more general recognition. It is the basis of the
growing scrupulosity in regard to punishments which are not reforma-
tory, which put rights finally out of the reach of a criminal instead of
qualifying him for their renewed exercise. But the only rational founda-
tion for the ascription of this right is ascription of capacity for free
contribution to social good. Is it then reasonable for us as a community
to treat this capacity in the man whose crime has given proof of its
having been overcome by anti-social tendencies, as yet giving him a title
to a further chance of its development; on the other hand, to act as if it
conferred no title on its possessors, before a crime has been committed,
to be placed under conditions in which its realisation would be possible?
Are not all modern states so acting allowing their ostensible members to
grow up under conditions which render the development of social ca-
pacity, practically impossible? Was it no more reasonable, as in the
ancient states, to deny the right to life in the human subject as such, than
to admit it under conditions which prevent the realisation of the capac-
ity that forms the ground of its admission? This brings us to the fourth
of the questions that arose i out of the assertion of the individual's right
to free life. What is the nature and extent of the individual's claim to be
enabled positively to realise that capacity for freely contributing to so-
cial good which is the foundation of his right to free life?

208. In dealing with this question, it is important to bear in mind
that the capacity we are considering is essentially a free or (what is the
same) a moral capacity. It is a capacity, not for action determined by
relation to a certain end, but for action determined by a conception of
the end to which it is relative. Only thus is it a foundation of rights. The
action of an animal or plant may be made contributory to social good,
but it is not therefore a foundation of rights on the part of an animal or
plant, because they are not affected by the conception of the good to
which they contribute. A right is a power (of acting for his own ends for
what he conceives to be his good) secured to an individual by the com-
munity, on the supposition that its exercise contributes to the good of
the community. But the exercise of such a power cannot be so contribu-
tory unless the individual, in acting for his own ends, is at least affected
by the conception of a good as common to himself with others. The

158/T.H. Green

condition of making the animal contributory to human good is that we
do not leave him free to determine the exercise of his powers — that we
determine them for him, that we use him merely as an instrument; and
this means that we do not, because we cannot, endow him with rights.
We cannot endow him with rights because there is no conception of a
good common to him with us which we can treat as a motive to him to
do to us as he would have us do to him. It is not indeed necessary, to a
capacity for rights, as it is to true moral goodness, that interest in a good
conceived as common to himself with others should be a man's domi-
nant motive. It is enough if that which he presents to himself from time
to time as his good, and which accordingly determines his action, is so
far affected by consideration of the position in which he stands to others
of the way in which this or that possible action of his would affect them,
and of what he would have to expect from them in return as to result
habitually without force or fear of force, in action not incompatible with
conditions necessary to the pursuit of a common good on the part of
others. In other words, it is the presumption that a man in his general
course of conduct will of his own motion have respect to the common
good, which entitles him to rights at the hands of the community. The
question of the moral value of the motive which may induce this re-
spect — whether an unselfish interest in common good or the wish for
personal pleasure and fear of personal pain does not come into the ac-
count at all. An agent, indeed, who could only be induced by fear of
death or bodily harm to behave conformably to the requirements of the
community would not be a subject of rights, because this influence could
never be brought to bear on him so constantly, if he were free to regulate
his own life, as to secure the public safety. But a man's desire for plea-
sure to himself and aversion from pain to himself, though dissociated
from any desire for a higher object for any object that is desired because
good for others may constitute a capacity for rights, if his imagination
of pleasure and pain is so far affected by sympathy with the feeling of
others about him as to make him, independently of force or fear of pun-
ishment, observant of established rights. In such a case the fear of pun-
ishment may be needed to neutralise anti-social impulses under circum-
stances of special temptation, but by itself it could never be a suffi-
ciently, uniform motive to qualify a man, in the absence of more sponta-
neously social feelings, for the. life of a free citizen. The qualification
for such a life is a spontaneous habit of acting with reference to a com-
mon good, whether that habit be founded on an imagination of pleasures

Principles of Political Obligatioii/159

and pains or on a conception of what ought to be. In either case the habit
implies at least an understanding that there is such a thing as a common
good, and a regulation of egoistic hopes and fears, if not an inducing of
more 'disinterested' motives, in consequence of that understanding.

209. The capacity for rights, then, being a capacity for spontaneous
action regulated by a conception of a common good — either so regu-
lated through an interest which flows directly from that conception or
through hopes and fears which are affected by it through more complex
channels of habit and association is a capacity which cannot be gener-
ated which on the contrary is neutralised by any influences that interfere
with the spontaneous action of social interests. Now any direct enforce-
ment of the outward conduct, which ought to flow from social interests,
by means of threatened penalties and a law requiring such conduct nec-
essarily implies penalties for disobedience to it — does interfere with the
spontaneous action of those interests, and consequently checks the growth
of the capacity which is the condition of the beneficial exercise of rights.
For this reason the effectual action of the state, i.e., the community as
acting through law, for the promotion of habits of true citizenship, seems
necessarily to be confined to the removal of obstacles. Under this head,
however, there may and should be included much that most states have
hitherto neglected, and much that at first sight may have the appearance
of an enforcement of moral duties, e.g., the requirement that parents
have their children taught the elementary arts. To educate one's children
is no doubt a moral duty, and it is not one of those duties, like that of
paving debts, of which the neglect directly interferes with the rights of
someone else. It might seem, therefore, to be a duty with which positive
law should have nothing to do, any more than with the duty of striving
after a noble life. On the other hand, the neglect of it does tend to pre-
vent the growth of the capacity for beneficially exercising rights on the
part of those whose education is neglected, and it is on this account not
as a purely moral duty on the part of a parent, but as the prevention of
a hindrance to the capacity for rights on the part of children that educa-
tion should be enforced by the state. It may be objected, indeed, that in
enforcing it we are departing in regard to the parents from the principle
above laid down that we are interfering with the spontaneous action of
social interests, though we are doing so with a view to promoting this
spontaneous action in another generation. But the answer to this objec-
tion is, that a law of compulsory education, if the preferences, ecclesias-
tical or other, of those parents who show any practical sense of their

160/T.H. Green

responsibility are duly respected, is from the in whom, so far as this
beginning only felt as compulsion by those social function is concerned,
there is no spontaneity to be interfered with, and that in the second gen-
eration, though the law with its penal sanctions still continues, it is not
felt as a law, as an enforcement of action by penalties, at all.

210. On the same principle the freedom of contract ought probably
to be more restricted in certain directions than is at present the case. The
freedom to do as they like on the part of one set of men may involve the
ultimate disqualification of many others, or of a succeeding generation,
for the exercise of rights. This applies most obviously to such kinds of
contract or traffic as affect the health and housing of the people, the
growth of population relatively to the means of subsistence, and the
accumulation or distribution of landed property. In the hurry of remov-
ing those restraints on free dealing between man and man, which have
arisen partly perhaps from some confused idea of maintaining morality
but much more from the power of class -interests, we have been apt to
take too narrow a view of the range of persons not one generation merely
but succeeding generations whose freedom ought to be taken into ac-
count, and of the conditions necessary to their freedom ('freedom' here
meaning their qualification for the exercise of rights). Hence the mass-
ing of population without regard to conditions of health; unrestrained
traffic in deleterious commodities; unlimited upgrowth of the class of
hired labourers in particular industries which circumstances have sud-
denly stimulated, without any provision against the dangers of an im-
poverished proletariate in following generations. Meanwhile, under pre-
tence of allowing freedom of bequest and settlement, a system has grown
up which prevents the landlords of each generation from being free ei-
ther in the government of their families or in the disposal of their land,
and aggravates the tendency to crowd into towns, as well as the difficul-
ties of providing healthy house-room, by keeping land in a few hands. It
would be out of place here to consider in detail the remedies for these
evils, or to discuss the question how far it is well to trust to the initiative
of the state or individuals in dealing with them. It is enough to point out
the directions in which the state may remove obstacles to the realisation
of the capacity for beneficial exercise of rights without defeating its
own object, by vitiating the spontaneous character of that capacity.

Principles of Political Obligatioii/161

N. The Right of the State in Regard to Property

211. We have now considered the ground of the right to free life, and
what is the justification, if any, for the apparent disregard of that right
(a) in war, (b) in the infliction of punishment. We have also dealt with
the question of the general office of the state in regard to the develop-
ment of that capacity, in individuals which is the foundation of the right,
pointing out on the one hand the necessary limitation of its office in this
respect, on the other hand the directions in which it may remove ob-
stacles to that development. We next have to consider the rationale of
the rights of property.

In discussions on the 'origin of property' two questions are apt to
be mixed up which, though connected, ought to be kept distinct. One is
the question how men have come to appropriate; the other the question
how the idea of right has come to be associated with their appropria-
tions. As the term 'property' not only implies a permanent possession of
something, or a possession which can only be given up with the good
will of the possessor, but also a possession recognised as a right, an
inquiry into the origin of property must involve both these questions,
but it is not the less important that the distinction between them should
be observed. Each of them again has both its analytical and its historical
side. In regard to the first question it is important to learn all that can be
learnt as to the kind of things that were first, and afterwards at succes-
sive periods, appropriated; as to the mode in which, and the sort of
persons or societies by whom, they were appropriated. This is an his-
torical inquiry. But it cannot take the place of a metaphysical or psycho-
logical analysis of the conditions on the part of the appropriating sub-
ject implied in the fact that he does such a thing as appropriate. So too,
in regard to the second question, it is important to investigate histori-
cally the forms in which the right of men in their appropriations has
been recognised; the parties, whether individuals or societies, to whom
the right has been allowed; and the sort of objects, capable of appro-
priation, to which it has been considered to extend. But neither can these
inquiries help us to understand, in the absence of a metaphysical or
moral analysis, either what is implied in the ascription of a right to
certain appropriations, or why there should be a right to them.

212. We have then two questions, as above stated, each requiring
two different methods of treatment. But neither have the questions them-
selves, nor the different methods of dealing with them, been duly distin-
guished. It is owing to confusion between them that the right of property

162/T.H. Green

in things has been supposed to originate in the first occupancy of them.
This supposition, in truth, merely disguises the identical proposition
that in order to property, there must to begin with have been some ap-
propriation. The truism that there could be no property in anything which
had not been at some time and in some manner appropriated tells us
nothing as to how or why property in it, as a right, came to be recognised,
or why that right should be recognised. But owing to the confusion be-
tween the origin of appropriation and the origin of property, as a right,
an identical proposition as to the beginning of appropriation seemed to
be an instructive statement as to the basis of the rights of property. Of
late, in a revulsion from theories founded on identical propositions, 'his-
torical' inquiries into the 'origin of property' have come into vogue.
The right method of dealing with the question has been taken to lie in an
investigation of the earliest forms in which property has existed. But
such investigation, however valuable in itself, leaves untouched the ques-
tions, ( 1 ) what it is in the nature of men that makes it possible for them,
and moves them, to appropriate; (2) why it is that they conceive of
themselves and each other as having a right in their appropriations; (3)
on what ground is this conception treated as of moral authority — as one
that should be acted on.

213. (1) Appropriation is an expression of will; of the individual's
effort to give reality to a conception of his own good; of his conscious-
ness of a possible self-satisfaction as an object to be attained. It is dif-
ferent from mere provision to supply a future want. Such provision
appears to be made by. certain animals, e.g. ants. It can scarcely be
made under the influence of the imagination of pain incidental to future
want derived from previous experience, for the ant lays up for the win-
ter though it has not previously lived through the winter. It may be sug-
gested that it does so from inherited habit, but that this habit has origi-
nally arisen from an experience of pain on the part of ants in the past.
Whether this is the true account of the matter we have not, I think, —
perhaps from the nature of the case, cannot have the means of deciding.
We conceal our ignorance by saying that the ant acts instinctively, which
is in effect a merely negative statement, that the ant is not moved to
make provision for winter either by imagination of the pain which will
be felt in winter if it does not, or by knowledge of the fact (conception of
the fact) that such pain will be felt. In fact, we know nothing of the
action of the ant from the inside, or as an expression of consciousness.
If we are not entitled to deny dogmatically, that it expresses conscious-

Principles of Political Obligatioii/163

ness at all, neither are we entitled to say that it does express conscious-
ness, still less what consciousness it expresses. On the other hand we
are able to interpret the acts of ourselves, and of those with whom we
can communicate by means of signs to which we and they attach the
same meaning, as expressions of consciousness of a certain kind, and
thus by reflective analysis to assure ourselves that acts of appropriation
in particular express a will of the kind stated; that they are not merely a
passing employment of such materials as can be laid hands on to satisfy
this or that want, present or future, felt or imagined, but reflect the
consciousness of a subject which distinguishes itself from its wants;
which presents itself to itself as still there and demanding satisfaction
when this or that want, or any number of wants, have been satisfied;
which thus not merely uses a thing to fill a want, and in so doing at once
destroys the thing and for the time removes the want, but says to itself,
'this shall be mine to do as I like with, to satisfy my wants and express
my emotions as they arise.'

214. One condition of the existence of property, then, is appropria-
tion, and that implies the conception of himself on the part of the appro-
priator as a permanent subject for whose use, as instruments of satis-
faction and expression, he takes and fashions certain external things
certain things external to his bodily members. These things, so taken
and fashioned, cease to be external as they were before. They become a
sort of extension of the man's organs — the constant apparatus through
which he gives reality to his ideas and wishes. But another condition
must be fulfilled in order to constitute property, even of the most simple
and primitive sort. This is the recognition by others of a man's appro-
priations as something which they will treat as his, not theirs, and the
guarantee to him of his appropriations by means of that recognition.
What then is the ground of the recognition? The writers of the seven-
teenth and eighteenth centuries, who discussed the basis of the rights of
property, took it for granted, and in so doing begged the question. Grotius
makes the right of property rest on contract, but clearly until there is a
recognised meum [mine] and tuum [yours] there can be no contract.
Contract presupposes property. The property in a particular thing may
be derived from a contract through which it has been obtained in ex-
change for another thing or for some service rendered, but that implies
that it was previously the property of another, and that the person ob-
taining it had a property in something else if only in the labour of his
hands, which he could exchange for it. 'At the same time we learn how

164/T.H. Green

things became subject to private ownership... by a kind of agreement,
either expressed, as by a decision, or implied, as by occupation. In fact,
as soon as community ownership was abandoned, and as yet no division
had been made it is supposed that, all agreed, that whatever each one
had taken possession of should be his property. ' But he supposes a pre-
vious process by which things had been appropriated ( 4), owing to the
necessity, of spending labour on them in order to satisfy desire for a
more refined kind of living than could be supplied by spontaneous prod-
ucts of the earth. 'The reason was that men were not content to feed on
the spontaneous products of the earth, to dwell in caves... but chose a
more refined mode of life; this gave rise to industry which some applied
to one thing, others to another.' The 'communis rerum' [common own-
ership], thus departed from when labour came to be expended on things,
Grotius had previously described ( 1) as a state of things in which ev-
eryone had a right to whatever he could lay hands on., "All things", as
Justin says, "were the undivided possession of all men, as if all pos-
sessed a common inheritance." In consequence, each man could at once
take whatever he wished for his own needs, and could consume what-
ever was capable of being consumed. The enjoyment of this universal
right then served the purpose of private ownership; for whatever each
had thus taken for his own needs another could not take from him except
by an unjust act.' Here then a virtual right of property, though not so
called, seems to be supposed in two forms previous to the establishment
of what Grotius calls the right of property by contract. There is (1) a
right of property in which each can 'take to his use and consume' out of
the raw material supplied by nature; (2) a further right of each man in
that on which he has extended labour. Grotius does not expressly call
this a right, but if there is a right, as he says there is, on the part of each
man to that which he is able 'to take to his use and consume,' much
more must there be a right to that which he has not only taken but
fashioned by his labour. On the nature and rationale of this right Grotius
throws no light, but it is clearly presupposed by that right of property
which he supposes to be derived from contract, and must be recognised
before any such contract could be possible. Hobbes is so far more logi-
cal that he does not derive property from contract, but treats property
and 'the validity of covenants, as coordinately dependent on the exist-
ence of a sovereignpower of compulsion. But his account of this, as of
all other forms of right, is open to the objection (before dwelt on) that if
the sovereign power is merely a strongest force it cannot be a source of

Principles of Political Obligation/l 65

rights; and that if it is other than this — if it is a representative and main-
tainer of rights — its existence presupposes rights, which remain to be
accounted for. As previously shown, Hobbes, while professing to make
all rights dependent on the sovereign power, presupposes rights in his
account of the institution of this power. The validity of contracts 'be-
gins not but with its constitution, yet its own right is derived from an
irrevocable, contract of all with all in which each devolves his persona —
the body of his rights — upon it. Without pressing his particular forms of
expression unfairly against him, it is clear that he could not really suc-
ceed in thinking of rights as derived simply from supreme force; that he
could not associate the idea of absolute right with the sovereign without
supposing prior rights which it was made the business of the sovereign
to enforce, and in particular such a recognised distinction between meum
and tuum as is necessary to a covenant. Nor when we have dropped
Hobbes, notion of government or law-making power, as having origi-
nated in a covenant of all with all, shall we succeed any better in deriv-
ing rights of property, any more than other rights, from law or a sover-
eign which makes law, unless we regard the law or sovereign as the
organ or sustainer of a general social recognition of certain powers, as
powers which should be exercised.

215. Locke treats property — fairly enough so long as only its sim-
plest forms are in question — as derived from labour. By the same law of
nature and reason by which a man has 'a Property in his own Person,'
'the Labour of his Body, and the Work of his Hands... are properly his'
too. Now that the right to free life, which we have already dwelt on,
carries with it a certain right to property to a certain permanent appara-
tus beyond the bodily organs — for the maintenance and expression of
that life, is quite true. But apart from the difficulty of tracing some
kinds of property in which men are in fact held to have a right, to the
labour of anyone even of someone from whom it has been derived by
inheritance or bequest (a difficulty to be considered presently) — to say
that it is a 'law of nature and reason' that a man should have a property
in the work of his hands is no more than saying that that on which a man
has impressed his labour is recognised by others as something which
should be his , just as he himself is recognised by them as one that should
be his own master. The ground of the recognition is the same in both
cases and it is Locke's merit to have pointed this out, but what the
ground is he does not consider, shelving the question by appealing to a
law of nature or reason.

166/T.H. Green

216. The ground of the right to free life — the reason why a man is
secured in the free exercise of his powers through recognition of that
exercise by others as something that should be — lay, as we saw, in the
conception on the part of everyone who concedes the right to others and
to whom it is conceded, of an identity of good for himself and others. It
is only as within a society as a relation between its members, though the
society be that of all men, that there can be such a thing as a right; and
the right to free life rests on the common will of the society, in the sense
that each member of the society within which the right subsists in seek-
ing to satisfy himself contributes to satisfy the others, and that each is
aware that the other does so; whence there results a common interest in
the free play of the powers of all. And just as the recognised interest of
a society constitutes for each member of it the right to free life — ^just as
it makes each conceive of such life on the part of himself and his neighbour
as what should be, and thus forms the basis of a restraining custom
which secures it for each so it constitutes the right to the instruments of
such life, making each regard the possession of them by the other as for
the common good, and thus through the medium first of custom, then of
law, securing them to each.

217. Thus the doctrine that the foundation of the right of property
lies in the will that property is 'realised Will' — is true enough if we
attach a certain meaning to 'Will,' if we understand by it, not the mo-
mentary spring of any and every spontaneous action, but a constant
principle, operative in all men qualified for any form of society, how-
ever frequently overborne by passing impulses, in virtue of which each
seeks to give reality to the conception of a well-being which he neces-
sarily, regards as common to himself with others. A Will of this kind at
once explains the effort to appropriate, and the restraint placed on each
in his appropriations by a customary recognition of the interest which
each has in the success of the like effort on the part of the other members
of a society with which he shares a common well-being. This customary
recognition, founded on a moral or rational will, requires indeed to be
represented by some adequate force before it can result in a real mainte-
nance of rights of property. The wild beast in man will not otherwise
yield obedience to the rational will. And from the operation of this com-
pulsive force, very imperfectly controlled by the moral tendencies which
need its co-operation in other words from the historical incidents of
conquest and government — there result many characteristics of the in-
stitution of property, as it actually exists, which cannot be derived from

Principles of Political Obligation/l 67

the spiritual principle which we have assigned as its foundation. Still,
without that principle it could not have come into existence, nor would
it have any moral justification at all.

21 8. It accords with the account given of this principle that the right
of property, like every other form of right, should first appear within
societies founded on kinship, these being naturally the societies within
which the restraining conception of a common wellbeing is first opera-
tive. We are apt indeed to think of the state of things in which the mem-
bers of a family or clan hold land and stock in common, as the antithesis
of one in which rights of property exist. In truth it is the earliest stage of
their existence, because the most primitive form of society in which the
fruit of his labour is secured to the individual by the society under the
influence of the conception of a common well-being. The characteristic
of primitive communities is not the absence of distinction between meum
and tuum, without which no society of intelligent as opposed to instinc-
tive agents would be possible at all, but the common possession of cer-
tain materials, in particular land, on which labour may be expended. It
is the same common interest which prevents separate appropriation of
these materials and which secures the individual in the enjoyment and
use of that which his labour can extract from them.

219. From the moral point of view, however, the clan-system is
defective because under it the restraint imposed upon the individual by
his membership of a society is not, and has not the opportunity of be-
coming, a self-imposed restraint a free obedience to which the individual
submits, though the alternative course is left open to him, because he
conceives it as his true good. The area within which he can shape his
own circumstances is not sufficient to allow of the opposite possibilities
of right and wrong being presented to him, and thus of his learning to
love right for its own sake. And the other side of this moral tutelage of
the individual — this withholding from him of the opportunity of being
freely determined by recognition of his moral relations — is the confine-
ment of those relations themselves, which under the clan-system have
no actual existence except as between members of the same clan. A
necessary condition at once of the growth of a free morality, i.e., a cer-
tain behaviour of men determined by an understanding of moral rela-
tions and by the value which they set on them as understood, and of the
conception of those relations as relations between all men, is that free
play should be given to every man's powers of appropriation. Moral
freedom is not the same thing as a control over the outward circum-

168/T.H. Green

stances and appliances of life. It is the end to which such control is a
generally necessary means and which gives it its value. In order to ob-
tain this control men must cease to be limited in their activities by the
customs of the clan. The range of their appropriations must be extended
they must include more of the permanent material on which labour may
be expended, and not merely the passing products of labour spent on
unappropriated material — and they must be at once secured and con-
trolled in it by the good-will, by the sense of common interest, of a wider
society, of a society to which any and every one may belong who will
observe its conditions, and not merely those of a particular parentage ; in
other words by the law, written or unwritten, of a free state.

220. It is too long a business here to attempt an account of the
process by which the organisation of rights in the state has superseded
that of the clan, and at the same time the restriction of the powers of
appropriation implied in the latter has been removed. It is important to
observe, however, that this process has by no means contributed
unmixedly to the end to which, from the moral point of view, it should
have contributed. That end is at once the emancipation of the individual
from all restrictions upon, and his provision with means for, the free
moral life. But the actual result of the development of rights of property
in Europe, as part of its general political development, has so far been a
state of things in which all indeed may have property, but great numbers
in fact cannot have it in that sense in which alone it is of value, viz. as a
permanent apparatus for carrying out a plan of life, for expressing ideas
of what is beautiful, or giving effect to benevolent wishes. In the eye of
the law they have rights of appropriation, but in fact they have not the
chance of providing means for a free moral life, of developing and giv-
ing reality or expression to a good will, an interest in social well-being.
A man who possesses nothing but his powers of labour and who has to
sell these to a capitalist for bare daily maintenance, might as well, in
respect of the ethical purposes which the possession of property should
serve, be denied rights of property altogether. Is the existence of so
many men in this position, and the apparent liability of many more to be
brought to it by a general fall of wages, if increase of population goes
along with decrease in the productiveness of the earth, a necessary re-
sult of the emancipation of the individual and the free play given to
powers of appropriation? or is it an evil incident, which may yet be
remedied, of that historical process by which the development of the
rights of property has been brought about, but in which the agents have

Principles of Political Obligation/l 69

for the most part had no moral objects in view at all?

221 . Let us first be clear about the points in which the conditions of
property, as it actually exists, are at variance with property according to
its idea or as it should be. The rationale of property as we have seen, is
that everyone should be secured by society in the power of. getting and
keeping the means of realising a will, which in possibility is a will di-
rected to social good. Whether anyone's will is actually and positively
so directed, does not affect his claim to the power. This power should be
secured to the individual irrespectively of the use which he actually
makes of it, so long as he does not use it in a way that interferes with the
exercise of like power by another, on the ground that its uncontrolled
exercise is the condition of attainment by man of that free morality which
is his highest good. It is not then a valid objection to the manner in
which property is possessed among us, that its holders constantly use it
in a way demoralising to themselves and others, any more than such
misuse of any other liberties is an objection to securing men in their
possession. Only then is property held in a way inconsistent with its
idea, and which should, if possible, be got rid of, when the possession of
property by one man interferes with the possession of property by an-
other, when one set of men are secured in the power of getting and
keeping the means of realising their will, in such a way that others are
practically denied the power. In that case it may truly be said that 'prop-
erty is theft.' The rationale of property, in short, requires that everyone
who will conform to the positive condition of possessing it, viz. labour,
and the negative condition, viz. respect for it as possessed by others,
should, so far as social arrangements can make him so, be a possessor
of property himself — and of such property as will at least enable him to
develop a sense of responsibility, as distinct from mere property in the
immediate necessaries of life.

222. But then the question arises, whether the rationale of property,
as thus stated, is not inconsistent with the unchecked freedom of appro-
priation, or freedom of appropriation checked only by the requirement
that the thing appropriated shall not have previously been appropriated
by another. Is the requirement that every honest man should be a propri-
etor to the extent stated, compatible with any great inequalities of pos-
session? In order to give effect to it, must we not remove those two great
sources of the inequality of fortunes, (1) freedom of bequest, and the
other arrangements by which the profits of the labour of several genera-
tions are accumulated on persons who do not labour at all; (2) freedom

170/T.H. Green

of trade, of buying in the cheapest market and selling in the dearest, by
which accumulated profits of labour become suddenly multiplied in the
hands of a particular proprietor? Now clearly, if an inequality of for-
tunes, of the kind which naturally arises from the admission of these
two forms of freedom, necessarily results in the existence of a proletari-
ate, practically excluded from such ownership as is needed to moralise
a man, there would be a contradiction between our theory of the right of
property and the actual consequence of admitting the right according to
the theory; for the theory logically necessitates freedom both in trading
and in the disposition of his property by the owner, so long as he does
not interfere with the like freedom on the part of others; and in other
ways as well its realisation implies inequality.

223. Once admit as the idea of property that nature should be pro-
gressively adapted to the service of man by a process in which each,
while working freely or for himself, i.e., as determined by a conception
of his own good, at the same time contributes to the social good, and it
will follow that property must be unequal. If we leave a man free to
realise the conception of a possible well-being, it is impossible to limit
the effect upon him of his desire to provide for his future wellbeing, as
including that of the persons in whom he is interested, or the success
with which at the prompting of that desire he turns resources of nature
to account. Considered as representing the conquest of nature by the
effort of free and variously gifted individuals, property must be un-
equal; and no less must it be so if considered as a means by which
individuals fulfil social functions. As we may learn from Aristotle, those
functions are various and the means required for their fulfilment are
various. The artist and man of letters require different equipment and
apparatus from the tiller of land and the smith. Either then the various
apparatus needed for various functions must be provided for individu-
als by society, which would imply a complete regulation of life, incom-
patible with that highest object of human attainment, a free morality; or
we must trust for its provision to individual effort, which will imply
inequality between the property of different persons.

224. The admission of freedom of trade follows from the same prin-
ciple. It is a condition of the more complete adaptation of nature to the
service of man by the free effort of individuals. 'To buy in the cheapest
and sell in the dearest market' is a phrase which may no doubt be used
to cover objectionable transactions, in which advantage is taken of the
position of sellers who from circumstances are not properly free to make

Principles of Political Obligation/lVl

a bargain. It is so employed when the cheapness of buying arises from
the presence of labourers who have no alternative but to work for 'star-
vation wages.' But in itself it merely describes transactions in which
commodities are bought where they are of least use and sold where they
are of most use. The trader who profits by the transaction is profiting by
what is at the same time a contribution to social well-being.

In regard to the freedom which a man should be allowed in dispos-
ing of his property by will or gift, the question is not so simple. The
same principle which forbids us to limit the degree to which a man may
provide for his future, forbids us to limit the degree to which he may
provide for his children, these being included in his forecast of his fu-
ture. It follows that the amount which children may inherit may not
rightly be limited; and in this way. inequalities of property, and accumu-
lations of it to which possessors have contributed nothing by their own
labour, must arise. Of course the possessor of an estate, who has con-
tributed nothing by his own labour to its acquisition, may yet by his
labour contribute largely to the social good, and a well-organised state
will in various ways elicit such labour from possessors of inherited wealth.
Nor will it trust merely to encouraging the voluntary fulfilment of social
functions, but will by taxation make sure of some positive return for the
security which it gives to inherited wealth. But while the mere permis-
sion of inheritance, which seems implied in the permission to a man to
provide unlimitedly for his future, will lead to accumulations of wealth,
on the other hand, if the inheritance is to be equal among all children,
and, failing children, is to pass to the next of kin, the accumulation will
be checked. It is not therefore the right of inheritance, but the right of
bequest, that is most likely to lead to accumulation of wealth, and that
has most seriously been questioned by those who hold that universal
ownership is a condition of moral well-being. Is a proprietor to be al-
lowed to dispose of his property as he likes among his children (or, if he
has none, among others), making one very rich as compared with the
others, or is he to be checked, by a law requiring approximately equal
inheritance?

225. As to this, consider that on the same principle on which we
hold that a man should be allowed to accumulate as he best can for his
children, he should have discretion in distributing among his children.
He should be allowed to accumulate, because in so doing he at once
expresses and develops the sense of family responsibility which natu-
rally breeds a recognition of duties in many other directions. But if the

172/T.H. Green

sense of family responsibility is to have free play, the man must have
due control over his family, and this he can scarcely have if all his chil-
dren as a matter of necessity inherit equally, however undutiful or idle
or extravagant they may be. For this reason the true theory of property
would seem to favour freedom of bequest, at any rate in regard to wealth
generally There may be special reasons, to be considered presently, for
limiting it in regard to land. But as a general rule, the father of a family,
if left to himself and not biassed by any special institutions of his coun-
try, is most likely to make that distribution among his children which is
most for the public good. If family pride moves him to endow one son
more largely than the rest, in order to maintain the honour of his name,
family affection will keep this tendency within limits in the interest of
the other children, unless the institutions of his country favour the one
tendency as against the other. And this they will do if they maintain
great dignities, e.g. peerages, of which the possession of large heredi-
tary wealth is virtually the condition, and if they make it easy, when the
other sons have been impoverished for the sake of endowing the eldest,
to maintain the former at the public expense by means of appointments
in the church or state.

It must be borne in mind, further, that the freedom of bequest which
is to be justified on the above principles must not be one which limits
that freedom in a subsequent generation. It must therefore be distin-
guished from the power of settlement allowed by English law and con-
stantly exercised in dealing with landed estate; for this power, as exer-
cised by the landowning head of a family in one generation, prevents the
succeeding head of the family from being free to make what disposition
he thinks best among his children and ties up the succession to the estate
to his eldest son. The practice of settlement in England, in short, as
applied to landed estate, cancels the freedom of bequest in the case of
most landowners and neutralises all the dispersive tendency of family
affection, while it maintains in full force all the accumulative tendency
of family pride. This, however, is no essential incident of a system in
which the rights of individual ownership are fully developed, but just
the contrary.

226. The question then remains, whether the full development of
those rights, as including that of unlimited accumulation of wealth by
the individual and of complete freedom of bequest on his part, necessar-
ily carries with it the existence of a proletariate, nominal owners of their
powers of labour, but in fact obliged to sell these on such terms that they

Principles of Political Obligatioii/173

are in fact owners of nothing beyond what is necessary from day to day
for the support of life, and may at any time lose even that, so that, as
regards the moral functions of property, they may be held to be not
proprietors at all; or whether the existence of such a class is due to
causes only accidentally connected with the development of rights of
individual property. We must bear in mind ( 1 ) that the increased wealth
of one man does not naturally mean the diminished wealth of another.

We must not think of wealth as a given stock of commodities of
which a larger share cannot fall to one without taking from the share
that falls to another. The wealth of the world is constantly increasing in
proportion as the constant production of new wealth by labour exceeds
the constant consumption of what is already produced. There is no natural
limit to its increase except such as arises from the fact that the supply of
the food necessary to sustain labour becomes more difficult as more
comes to be required owing to the increase in the number of labourers,
and from the possible ultimate exhaustion of the raw materials of labour
in the world. Therefore in the accumulation of wealth, so far as it arises
from the saving by anyone of the products of his labour, from his be-
quest of this capital to another who farther adds to it by saving some of
the profit which the capital yields, as employed in. the payment for labour
or in trade either by the capitalist himself or someone to whom he lends
it, and from the continuation of this process through generations, there
is nothing which tends to lessen for anyone else the possibilities of own-
ership. On the contrary, supposing trade and labour to be free, wealth
must be constantly distributed throughout the process in the shape of
wages to labourers and of profits to those who mediate in the business
of exchange.

227. It is true that the accumulation of capital naturally leads to the
employment of large masses of hired labourers. But there is nothing in
the nature of the case to keep these labourers in the condition of living
from hand to mouth, to exclude them from that education of the sense of
responsibility which depends on the possibility of permanent owner-
ship. There is nothing in the fact that their labour is hired in great masses
by great capitalists to prevent them from being on a small scale capital-
ists themselves. In their position they have not indeed the same stimulus
to saving, or the same constant opening for the investment of savings, as
a man who is autourgos [self-employed] ; but their combination in work
gives them every opportunity if they have the needful education and
self-discipline, for forming societies for the investment of savings. In

174/T.H. Green

fact, as we know, in the well-paid industries of England the better sort
of labourers do become capitalists, to the extent often of owning their
houses and agood deal of furniture, of having aninterestin stores, and
of belonging to benefit-societies through which they make provision for
the future. It is not then to the accumulation of capital, but to the condi-
tion, due to antecedent circumstances unconnected with that accumula-
tion, of the men with whom the capitalist deals and whose labour he
buys on the cheapest terms, that we must ascribe the multiplication in
recent times of an impoverished and reckless proletariate.

228. It is difficult to summarise the influences to which is due the
fact that in all the chief seats of population in Europe the labour market
is constantly thronged with men who are too badly reared and fed to be
efficient labourers; who for this reason, and from the competition for
employment with each other, have to sell their labour very cheap; who
have thus seldom the means to save, and whose standard of living and
social expectation is so low that, if they, have the opportunity of saving,
they do not use it, and keep bringing children into the world at a rate
which perpetuates the evil. It is certain, however, that these influences
have no necessary connection with the maintenance of the right of indi-
vidual property and consequent unlimited accumulation of capital, though
they no doubt are connected with that r gime of force and conquest by
which existing governments have been established — governments which
do not indeed create the rights of individual property, any more than
other rights, but which serve to maintain them. It must always be borne
in mind that the appropriation of land by individuals has in most coun-
tries probably in all where it approaches completeness been originally
effected, not by the expenditure of labour or the results of labour on the
land, but by force. The original landlords have been conquerors.

229. This has affected the condition of the industrial classes in at
least two ways: (1) When the application of accumulated capital to any
work in the way of mining or manufacture has created a demand for
labour, the supply has been forthcoming from men whose ancestors, if
not themselves, were trained in habits of serfdom men whose life has
been one of virtually forced labour, relieved by church-charities or the
poor law (which in part took the place of these charities) who were thus
in no condition to contract freely for the sale of their labour, and had
nothing of that sense of family responsibility which might have made
them insist on having the chance of saving. Landless countrymen, whose
ancestors were serfs, are the parents of the proletariate of great towns.

Principles of Political Obligatioii/175

(2) Rights have been allowed to landlords, incompatible with the true
principle on which rights of property rest, and tending to interfere with
the development of the proprietorial capacity in others. The right to
freedom in unlimited acquisition of wealth, by means of labour and. by
means of the saving and successful application of the results of labour,
does not imply the right of anyone to do as he likes with those gifts of
nature, without which there would be nothing to spend labour upon.
The earth is just as much an original natural material necessary to pro-
ductive industry as are air, light, and water, but while the latter from the
nature of the case cannot be appropriated, the earth can be and has
been. The only justification for this appropriation, as for any other, is
that it contributes on the whole to social well-being; that the earth as
appropriated by individuals under certain conditions becomes more ser-
viceable to society, as a whole, including those who are not proprietors
of the soil, than if it were held in common. The justification disappears
if these conditions are not observed; and from government having been
chiefly in the hands of appropriators of the soil, they have not been duly
observed. Landlords have been allowed to do what they would with
their own,' as if land were merely like so much capital, admitting of
indefinite extension. The capital gained by one is not taken from an-
other, but one man cannot acquire more land without others having less ;
and though a growing reduction in the number of landlords is not neces-
sarily a social evil, if it is compensated by the acquisition of other wealth
on the part of those extruded from the soil, it is only not an evil if the
landlord is prevented from so using his land as to make it unserviceable
to the wants of men (e.g. by turning fertile land into a forest), and from
taking liberties with it incompatible with the conditions of general free-
dom and health; e.g. by clearing out a village and leaving the people to
pick up house-room as they can elsewhere a practice common under the
old poor-law, when the distinction between close and open villages grew
up — or, on the other hand, by building houses in unhealthy places or of
unhealthy structure, by stopping up means of communication, or for-
bidding the erection of dissenting chapels. In fact the restraints which
the public interest requires to be placed on the use of land if individual
property in it is to be allowed at all, have been pretty much ignored,
while on the other hand, that full development of its resources, which
individual ownership would naturally favour, has been interfered with
by laws or customs which, in securing estates to certain families, have
taken away the interest, and tied the hands, of the nominal owner the

176/T.H. Green

tenant for life — in making the most of his property.

230. Thus the whole history of the ownership of land in Europe has
been of a kind to lead to the agglomeration of a proletariate, neither
holding nor seeking property, wherever a sudden demand has arisen for
labour in mines or manufactures. This at any rate was the case down to
the epoch of the French Revolution; and this, which brought to other
countries deliverance from feudalism, left England, where feudalism
had previously passed into unrestrained landlordism, almost untouched.
And while those influences of feudalism and landlordism which tend to
throw a shiftless population upon the centres of industry have been left
unchecked, nothing till quite lately was done to give such a population a
chance of bettering itself, when it had been brought together. Their health,
housing, and schooling were unprovided for. They were left to be freely
victimised by deleterious employments, foul air, and consequent crav-
ing for deleterious drinks. When we consider all this, we shall see the
unfairness of laying on capitalism or the free development of individual
wealth the blame which is really due to the arbitrary and violent manner
in which rights over land have been acquired and exercised, and to the
failure of the state to fulfil those functions which under a system of
unlimited private ownership are necessary to maintain the conditions of
a free life.

231. Whether, when those functions have been more fully recognised
and executed, and when the needful control has been established in the
public interest over the liberties which landlords may take in the use of
their land, it would still be advisable to limit the right of bequest in
regard to land, and establish a system of something like equal inherit-
ance, is a question which cannot be answered on any absolute principle.
It depends on circumstances. Probably the question should be answered
differently in a country like France or Ireland, where the most important
industries are connected directly with the soil, and in one like England
where they are not so. The reasons must be cogent which could justify
that interference with the control of the parent over his family, which
seems to be implied in the limitation of the power of bequeathing land
when the parent's wealth lies solely in land, and which arises, be it
remembered, in a still more mischievous way from the present English
practice of settling estates. But it is important to bear in mind that the
question in regard to land stands on a different footing from that in
regard to wealth generally, owing to the fact that land is a particular
commodity limited in extent, from which alone can be derived the mate-

Principles of Political Obligatioii/177

rials necessary to any industry whatever, on which men must find house-
room if they are to find it at all, and over which they must pass in
communicating with each other, however much water or even air may
be used for that purpose. These are indeed not reasons for preventing
private property in land or even free bequest of land, but they necessi-
tate a social control over the exercise of rights of property in land, and
it remains to be seen whether that control can be sufficiently established
in a country where the power of great estates has not first been broken,
as in France, by a law of equal inheritance.

232. To the proposal that 'unearned increment' in the value of the
soil, as distinct from value produced by expenditure of labour and capi-
tal, should be appropriated by the state, though fair enough in itself, the
great objection is that the relation between earned and unearned incre-
ment is so complicated, that a system of appropriating the latter to the
state could scarcely be established without lessening the stimulus to the
individual to make the most of the land, and thus ultimately lessening its
serviceableness to society.

O. The Right of the State in Regard to the Family

233. In the consideration of those rights which do not arise out of the
existence of the state, but which are antecedent to it (though of course,
implying society in some form), and which it is its office to enforce, we
now come to family or household rights — also called, though not very
distinctively, 'rights in private relations,' — of which the mostimportant
are the reciprocal rights of husband and wife, parent and child. The
distinctive thing about these is that they are not merely rights of one
person as against all or some other persons over some thing, or to the
performance of or abstention from some action; they are rights of one
person as against all other persons to require or prevent a certain
behaviour on the part of another. Right to free life is a right on the part
of any and every person to claim from all other persons that course of
action or forbearance which is necessary to his free life. It is a right
against all the world, but not a right over any particular thing or person.
A right of property, on the other hand, is a right against all the world,
and also over a particular thing; a right to claim from any and every one
certain actions and forbearances in respect of a particular thing (hence
called 'jus in rem'). A right arising from contract, unlike the right of
property or the right of free life, is not a right as against all the world,
but a right as against a particular person or persons contracted with to

178/T.H. Green

claim a certain performance or forbearance. It may or may not be a
right over a particular thing, but as it is not necessarily so, while it is a
right against a particular person or persons in distinction from all the
world, it is called 'jus in personam' as distinct from 'in rem.' The right
of husband over wife and that of parent over children (or vice versa)
differs from the right arising out of contract, inasmuch as it is not merely
a right against the particular person contracted with, but a right against
all the world. In this respect it corresponds to the right of property; but
differs again from this, since it is not a right over a thing but over a
person. It is a right to claim certain acts or forbearances from all other
persons in respect of a particular person: or (more precisely) to claim a
certain behaviour from a certain person, and at the same time to exclude
all others from claiming it. Just because this kind of right is a right over
a person, it is always reciprocal as between the person exercising it and
the person over whom it is exercised. All rights are reciprocal as be-
tween the person exercising them and the person against whom they are
exercised. My claim to the right of free life implies a like claim upon me
on the part of those from whom I claim acts and forbearances necessary
to my free life. My claim upon others in respect of the right of property,
or upon a particular person in respect of an action which he has con-
tracted to perform, implies the recognition of a corresponding claim
upon me on the part of all persons or the particular party to the contract
But the right of a husband in regard to his wife not merely implies that
all those as against whom he claims the right have a like claim against
him, but that the wife over whom he asserts the right has a right, though
not a precisely like right, over him. The same applies to the right of a
father over a son, and of a master over a servant.

234. A German would express the peculiarity of the rights now
under consideration by saying that, not only are persons the subjects of
them, but persons are the objects of them. By the 'subject' of rights he
would mean the person exercising them or to whom they belong; by
'object' that in respect of which the rights are exercised. The piece of
land or goods which I own is the 'object' of the right of property, the
particular action which one person contracts to perform for another is
the 'object' of a right of contract; and in like manner the person from
whom I have a right to claim certain behaviour, which excludes any
right on the part of anyone else to claim such behaviour from him or her,
is the 'object' of the right. But English writers commonly call that the
subject of a right which the Germans would call the object. By the sub-

Principles of Political Obligation/179

ject of a right of property they would not mean the person to whom the
right belongs, but the thing over which, or in respect of which, the right
exists. And in like manner, when a right is exercised over, or in respect
of a person, such as a wife or a child, they would call that person, and
not the person exercising the right, the subject of it. By the object of a
right, on the other hand, they mean the action or forbearance which
someone has a right to claim. The object of a right arising out of con-
tract would be the action which the person contracting agrees to per-
form. The object of a connubial right would not be, as according to
German usage, the person in regard to, or over, whom the right is exer-
cised — that person would be the subject of the right — but either the
behaviour which the person possessing the right is entitled to claim from
that person, or the forbearances in respect to that person, which he is
entitled to claim from others. Either usage is justifiable in itself. The
only matter of importance is not to confuse them. There is a conve-
nience in expressing the peculiarity of family rights by saying, accord-
ing to the sense of the terms adopted by German writers, that not only
are persons subjects of them but persons are objects of them. It is in this
sense that I shall use these terms, if at all.

235. So much for the peculiarity of family rights, as distinct from
other rights. The distinction is not merely a formal one. From the fact
that these rights have persons for their objects, there follow important
results, as will appear, in regard to the true nature of the right, to the
manner in which it should be exercised. The analytical, as distinct from
the historical, questions which have to be raised with reference to family
rights correspond to those raised with reference to rights of property. As
we asked what in the nature of man made appropriation possible for
him, so now we ask (1) what it is in the nature of man that makes him
capable of family life. As we asked next how appropriations came to be
so sanctioned by social recognition as to give rise to rights of property,
so now we have to ask (2) how certain powers exercised by a man,
certain exemptions which he enjoys from the interference of others, in
his family life, come to be recognised as rights. And as we inquired
further how far the actual institutions of property correspond with the
idea of property as a right which for social good should be exercised, so
now we have to inquire (3) into the proper adjustment of family rights,
as determined by their idea; in what form these rights should be main-
tained; bearing in mind (a) that, like all rights, their value depends on
their being conditions of which the general observance is necessary to a

180/T.H. Green

free morality, and (b) their distinctive character as rights of which, in
the sense explained, persons are the objects.

236. (1) We saw that appropriation of that kind which, when se-
cured by a social power, becomes property, supposes an effort on the
part of the individual to give reality to a conception of his own good, as
a whole or as something permanent, in distinction from the mere effort
to satisfy a want as it arises. The formation of family life supposes that
in the conception of his own good to which a man seeks to give reality
there is included a conception of the well-being of others, connected
with him by sexual relations or by relations which arise out of these. He
must conceive of the well-being of these others as a permanent object
bound up with his own, and the interest in it as thus conceived must be
a motive to him over and above any succession of passing desires to
obtain pleasure from, or give pleasure to, the others; otherwise there
would be nothing to lead to the establishment of a household, in which
the wants of the wife or wives are permanently provided for, in the
management of which a more or less definite share is given to them
(more definite, indeed, as approach is made to a monogamistic system,
but not wholly absent anywhere where the wife is distinguished from the
female), and upon which the children have a recognised claim for shel-
ter and sustenance.

237. No doubt family life as we know it is an institution of gradual
growth. It may be found in forms where it is easy to ignore the distinc-
tion between it and the life of beasts. It is possible that the human beings
with whom it first began — beings 'human' because capable of it may
have been 'descended' from animals not capable of it, they may have
been connected with such animals by certain processes of generation.
But this makes no difference in the nature of the capacity itself, which is
determined not by a past history but by its results, its functions, that of
which it is a capacity. As the foundation of any family life, in the form
in which we know it, implies that upon the mere sexual impulse there
has supervened on the part of the man a permanent interest in a woman
as a person with whom his own well-being is united, and a consequent
interest in the children born of her, so in regard to every less perfect
form out of which we can be entitled to say that the family life, as we
know it, has developed, we must be also entitled to say that it expresses
some interest which is in principle identical with that described, how-
ever incompletely it has emerged from lower influences.

238. (2) Such an interest being the basis of family relations, it is

Principles of Political Obligation/lSl

quite intelligible that everyone actuated by the interest should recognise,
and be recognised by, everyone else to whom he ascribes an interest like
his own, as entitled to behave towards the objects of the interest towards
his wife and children — in a manner from which everyone else is ex-
cluded; that there should thus come to be rights in family relations to a
certain privacy in dealing with them; to deal with them as his alone and
not another's; claims, ratified by the general sense of their admission
being for the common good, to exercise certain powers and demand
certain forbearances from others, in regard to wife and children. It is
only indeed at an advanced stage of reflection that men learn to ascribe
to other men, simply as men, the interests which they experience them-
selves; and hence it is at first only within narrow societies that men
secure to each other the due privileges and privacies of family life. In
others of the same kin or tribe they can habitually imagine an interest
hke that of which each feels his own family life to be the expression, and
hence in them they spontaneously respect family rights; but they cannot
thus practically think themselves into the position of a stranger, and
hence towards him they do not observe the same restraints. They do not
regard the women of another nation as sacred to the husbands and fami-
lies of that nation. But that power of making another's good one's own,
which in the more intense and individualised form is the basis of family
relations, must always at the same time exist in that more diffused form
in which it serves as the basis of a society held together by the recogni-
tion of a common good. Wherever, therefore, the family relations exist,
there is sure to exist also a wider society which by its authority gives to
the powers exercised in those relations the character of rights. By what
process the relations of husband and wife and the institution of the house-
hold may have come to be formed among descendants of a single pair, it
is impossible to conceive or to discover, but in fact we find no trace in
primitive history of households except as constituents of a clan
recognising a common origin; and it is by the customs of the clan, founded
in the conception of a common good, that those forbearances on the part
of members of one household in dealing with another, which are neces-
sary to the privacy of the several households, are secured.

239. The history of the development of family life is the history of
the process (a) by which family rights have come to be regarded as
independent of the special custom of a clan and the special laws of a
state, as rights which all men and women, as such, are entitled to. This,
however, characterises the history of all rights alike. It is a history far-

182/T.H. Green

ther (b) of the process by which the true nature of these rights has come
to be recognised, as rights over persons; rights of which persons are the
objects, and which therefore imply reciprocal claims on the part of those
over whom they are exercised and of those who exercise them. The
establishment of monogamy, the abolition of 'patria potestas' ['pater-
nal authority'] in its various forms, the, emancipation of women' (in the
proper sense of the phrase), are involved in these two processes. The
principles ( 1 ) that all men and all women are entitled to marry and form
households, (2) that within the household the claims of the husband and
wife are throughout reciprocal, cannot be realised without carrying with
them not merely monogamy, but the removal of those faulty relations
between men and women which survive in countries where monogamy
is established by law.

240. Under a system of polygamy, just so far as it is carried out,
there must be men who are debarred from marrying. It can only exist,
indeed, alongside of a slavery, which excludes masses of men from the
right of forming a family. Nor does the wife, under a polygamous sys-
tem, though she ostensibly marries, form a household, or become the
co-ordinate head of a family, at all. The husband alone is head of the
family and has authority over the children. The wife, indeed, who for
the time is the favourite, may practically share the authority, but even
she has no equal and assured position. The 'consortium omnis vitae'
['sharing of an entire life'], the 'individua vitae consuetudo' ['indivis-
ible common life' ] , which according to the definition in the Digest is an
essential element in marriage, is not hers.

And further as the polygamous husband requires a self-restraint
from his wife which he does not put on himself, he is treating here un-
equally. He demands a continence from her which, unless she is kept in
the confinement of slavery, can only rest on the attachment of a person
to a person and on a personal sense of duty and at the same time is
practically ignoring the demand, which this personal attachment on her
part necessarily carries with it, that he should keep himself for her as
she keeps herself for him. The recognition of children as having claims
upon their parents reciprocal to those of the parents over them, equally
involves the condemnation of polygamy. For these claims can only be
duly satisfied the responsibilities of father and mother towards the chil-
dren (potentially persons) whom they have brought into the world can
only be fulfilled if father and mother jointly take part in the education of
the children; if the children learn to love and obey father and mother as

Principles of Political Obligatioii/183

one authority. Butif there is no permanent 'consortium vitae' ['sharing
of life'] of one husband with one wife, this joint authority over the chil-
dren becomes impossible. The child, when its physical dependence on
the mother is over, ceases to stand in any special relation to her. She has
no recognised duties to him, or he to her. These lie between him and his
father only, and just because the father's interests are divided between
the children of many wives, and because these render their filial offices
to the father separately not to father and mother jointly, the true domes-
tic training is lost.

241. Monogamy, however, may be established, and an advance so
far made towards the establishment of a due reciprocity between hus-
band and wife, as well as towards a fulfilment of the responsibilities
incurred in bringing children into the world, while yet the true claims of
men in respect of women, and of women in respect of men, and of chil-
dren upon their parents, are far from being generally realised. Wherever
slavery exists alongside of monogamy on the one side, people of the
slave class are prevented from forming family ties, and on the other
those who are privileged to marry, though they are confined to one wife,
are constantly tempted to be false to the true monogamistic idea by the
opportunity of using women as chattels to minister to their pleasures.
The wife is thus no more than an institution, invested with certain digni-
ties and privileges, for the continuation of the family; a continuation,
which under pagan religions is considered necessary for the mainte-
nance of certain ceremonies, and to which among ourselves an impor-
tance is attached wholly unconnected with the personal affection of the
man for the wife. When slavery is abolished, and the title of all men and
women equally to form families is established by law, the conception of
the position of the wife necessarily rises. The etaira [courtesan] and
pallake [concubine] cease at any rate to be recognised accompaniments
of married life, and the claim of the wife upon the husband's fidelity, as
reciprocal to his claim upon hers, becomes established by law.

242. Thus that marriage should only be lawful with one wife, that it
should be for life, that it should be terminable by the infidelity of either
husband or wife, are rules of right; not of morality, as such, but of right.
Without such rules the rights of the married persons are not maintained.
Those outward conditions of family life would not be secured to them,
which are necessary on the whole for the development of a free morality.
Polygamy is a violation of the rights, (1) of those who through it are
indirectly excluded from regular marriage, and thus from the moral edu-

184/T.H. Green

cation which results from this; (2) of the wife, who is morally lowered
by exclusion from her proper position in the household and by being
used, more or less, as the mere instrument of the husband's pleasure; (3)
of the children, who lose the chance of that full moral training which
depends on the connected action of father and mother. The terminability
of marriage at the pleasure of one of the parties to it (of its terminability
at the desire of both we will speak presently) is a violation of the rights
at any rate of the unconsenting party, on the grounds (a) that liability to
it tends to prevent marriage from becoming that 'individua vitae con-
suetudo' which gives it its moral value, and (b) that, when the marriage
is dissolved, the woman, just in proportion to her capacity for self-devo-
tion and the degree to which she has devoted herself to her original
husband, is debarred from forming that 'individua vitae consuetudo'
again, and thus crippled in her moral possibilities. It is a violation of the
rights of children for the same reason for which polygamy is so.

On the other hand, that the wife should be bound indissolubly by the
marriage-tie to an unfaithful husband (or vice versa), is a violation of
the right of wife (or husband, as the case may be), because on the one
hand the restraint which makes her liable to be used physically as the
instrument of the husband's pleasures, when there is no longer recipro-
cal devotion between them, is a restraint which (except in peculiar cases)
renders moral elevation impossible; and on the other, she is prevented
from forming such a true marriage as would be, according to ordinary
rules, the condition of the realisation of her moral capacities. Though
the husband's right to divorce from an unfaithful wife has been much
more thoroughly recognised than the wife's to divorce from an unfaith-
ful husband, he would be in fact less seriously wronged by the inability
to obtain a divorce, for it is only the second of the grounds just stated
that fully applies to him. The rights of the children do not seem so plainly
concerned in the dissolution of a marriage to which husband or wife has
been unfaithful. In some cases the best chance for them might seem to
lie in the infidelities being condoned and an outward family peace re-
established. But that their rights are violated by the infidelity itself is
plain. In the most definite way it detracts from their possibilities of
goodness. Without any consent on their part, quite independently of any
action of their own will, they are placed by it in a position which tends —
though special grace may counteract it to put the higher kinds of good-
ness beyond their reach.

243. These considerations suggest some further questions which

Principles of Political Obligation/l 85

may be discussed under the following heads. ( 1 ) If infidelity in marriage
is a violation of rights in the manner stated, and if (as it must be) it is a
wilful and knowing violation, why is it not treated as a crime, and, like
other such violations of rights, punished by the state in order to the
better maintenance of rights? (2) Should any other reason but the infi-
delity of husband or wife be allowed for the legal dissolution of the
marriage tie? (3) How are the rights connected with marriage related to
the morality of marriage?

(1) There is good reason why the state should not take upon itself to
institute charges of adultery, but leave them to be instituted by the indi-
viduals whose rights the adultery violates. The reasons ordinarily al-
leged would be, (a) the analogy of ordinary breaches of contract, against
which the state leaves it to the individual injured to set the law in mo-
tion; (b) the practical impossibility of preventing adultery through the
action of the functionaries of the state. The analogy however, from ordi-
nary breaches of contract does not really hold. In the first place, though
marriage involves contract, though without contract there can be no
marriage, yet marriage at once gives rise to right and obligations of a
kind which cannot arise out of contract — in particular to obligations
towards the children born of the marriage. These children, at any rate,
are in no condition to seek redress even if from the nature of the case
redress could be had — for the injuries inflicted on them by a parent's
adultery as a person injured by a breach of contract can seek redress for
it. Again, though the state leaves it to the individual injured by a breach
of contract to institute proceedings for redress, if the breach involves
fraud, it — at any rate in certain cases treats the fraud as a crime and
punishes. Now in every breach of the marriage-contract by adultery
there is that which answers to fraud in the case of ordinary breach of
contract. The marriage-contract is broken knowingly and intentionally.
If there were no reason to the contrary, then, it would seem that the
state, though it might leave to the injured individuals the institution of
proceedings against adultery should yet treat adultery as a crime and
seek to prevent it by punishment in the interest of those whose virtual
rights are violated by it, though not in the way of breach of contract. But
there are reasons to the contrary — reasons that arise out of the moral
purposes served by the marriage-tie — which make it desirable both that
it should be at the discretion of the directly injured party whether a case
of adultery should be judicially dealt with at all, and that in no case
should penal terror be associated with such a violation of the marriage-

186/T.H. Green

bond. Under ordinary conditions, it is a public injury that a violation of
his rights should be condoned by the person suffering it. If the injured
individual were likely to fail in the institution of proceedings for his own
redress or defence, the public interest would require that the matter should
be taken out of his hands. But if an injured wife or husband is willing to
condone a breach of his or her rights through adultery, it is generally
best that it should be condoned. That married life should be continued in
spite of anything like dissoluteness on the part of husband or wife, is no
doubt undesirable. The moral purposes which married life should serve
cannot be served, either for the married persons themselves or for the
children, under such conditions. On the other hand, the condonation of a
single offence would generally be better for all concerned than an appli-
cation for divorce. The line cannot be drawn at which, with a view to the
higher ends which marriage should serve, divorce becomes desirable. It
is therefore best that the state, while uniformly allowing the right of
divorce where the marriage-bond has been broken by adultery, since
otherwise the right of everyone to form a true marriage (a marriage
which shall be the basis of family life) is neutralised, and taking care
that procedure for divorce be cheap and easy, should leave the enforce-
ment of the right to the discretion of individuals.

244. On similar grounds, it is undesirable that adultery as such
should be treated as a crime that penal terror should be associated with
it. Though rights, in the strict sense, undoubtedly arise out of marriage,
though marriage has thus its strictly legal aspect, it is undesirable that
this legal aspect should become prominent. It may suffer in respect of
its higher moral purposes, if the element of force appears too strongly in
the maintenance of the rights to which it gives rise. If a husband who
would otherwise be false to the marriage bond is kept outwardly faithful
to it by fear of the punishment which might attend its breach, the right of
the wife and children is indeed so far protected, but is anything gained
for those moral ends, for the sake of which the maintenance of these
rights is alone of value? The man in whom disloyal passion is neutralised
by fear of punishment will contribute little in his family life to the moral
development of himself, his wife, or his children. If he cannot be kept
true by family affection and sympathy with the social disapprobation
attaching to matrimonial infidelity — and unless it is a matter of social
disapprobation no penalties will be effectually enforced against it — he
will not be kept true in a way that is of any value to those concerned by
fear of penalties. In other words, the rights that arise out of marriage are

Principles of Political Obligation/l 87

not of a kind which can in their essence be protected by associating
penal terror with their violation, as the rights of life and property can be.
They are not rights to claim mere forbearances or to claim the perfor-
mance of certain outward actions, by which a right is satisfied irrespec-
tively of the disposition with which the act is done. They are claims
which cannot be met without a certain disposition on the part of the
person upon whom the claim rests, and that disposition cannot be en-
forced. The attempt to enforce the outward behaviour in order to satisfy
the claim, which is a claim not to the outward behaviour merely but to
this in connection with a certain disposition, defeats its own end.

245. For the protection, therefore, of the rights of married persons
and their children against infidelity it does not appear that the law can
do more than secure facilities of divorce in the case of adultery. This
indeed is not in itself a protection against the wrong involved in adul-
tery, but rather a deliverance from the further wrong to the injured hus-
band or wife and to the children that would be involved in the continu-
ance of any legal claim over them on the part of the injurer. But indi-
rectly it helps to prevent the wrong being done by bringing social disap-
probation to bear on cases of infidelity, and thus helping to keep married
persons faithful through sympathy with the disapprobation of which
they feel that they would be the objects when they imagine themselves
unfaithful. The only other effectual way in which the state can guard
against the injuries in question is by requiring great precaution and so-
lemnity in the contraction of marriages. This it can do by insisting on
the consent of parents to the marriage of all minors, exacting a long
notice (perhaps even a preliminary notice of betrothal), and — while not
preventing civil marriage by encouraging the celebration of marriage in
the presence of religious congregations and with religious rites.

246. Question (2) is one that does not admit of being answered on
any absolute principle. We must bear in mind that all rights in idea or as
they should be are relative to moral ends. The ground for securing to
individuals in respect of the marriage-tie certain powers as rights, is
that in a general way they are necessary to the possibility of a morally
good life, either directly to the persons exercising them or to their Chil-
dren. The more completely marriage is a 'consortium omnis vitae' in the
sense of a unity in all interests and for the whole of a lifetime, the more
likely are the external conditions of a moral life to be fulfilled in regard
both to married persons and their children. Therefore the general rule of
the state in dealing with marriage should be to secure such powers as

188/T.H. Green

are favourable and withhold such as are not favourable to the 'consor-
tium omnis vitae.' But in the application of the principle great difficul-
ties arise. Lunacy may clearly render the 'consortium omnis vitae' fi-
nally impossible; but what kind and degree of lunacy? If the lunatic may
possibly recover, though there is undoubtedly reason for the separation
from husband or wife during lunacy, should permanent divorce be al-
lowed? If it is allowed, and the lunatic recovers, a wrong will have been
done both to him and to the children previously born of the marriage.
On the other hand, to reserve the connubial rights of a lunatic of whose
recovery there is hope, and to restore them when he recovers, may in-
volve the wrong of bringing further children into the world with the taint
of lunacy upon them. Is cruelty to be a ground of divorce, and if so,
what amount? There is a degree of persistent cruelty which renders 'con-
sortium omnis vitae' impossible, but unless it is certain that cruelty has
reached the point at which a restoration of any sort of family life be-
comes impossible, a greater wrong both to wife and children may be
involved in allowing divorce than in refusing it. A husband impatient
for the time of the restraint of marriage may be tempted to passing cru-
elty as a means of ridding himself of it, while if no such escape were
open to him he might get the better of the temporary disturbing passion
and settle down into a decent husband. The same consideration applies
still more strongly to allowing incompatibility of temper as a ground of
divorce. It would be hard to deny that it might be of a degree and kind in
which it so destroyed the possibility of 'consortium omnis vitae' that,
with a view to the interests of the Children, who ought in such a case to
be chiefly considered, divorce implied less wrong than the maintenance
of the marriage-tie. But on the other hand, to hold out the possibility of
divorce on the ground of incompatibility is just the way to generate that
incompatibility. On the whole, the only conclusion seems to be that this
last ground should not be allowed, and that in deciding on other grounds
large discretion should be allowed to a well-constituted court.

247. We have now considered in a perfunctory way those rights
which are antecedent to the state — which are not derived from it but
may exist where a state is not, and which it is the office of the state to
maintain. We have inquired what it is in the nature of man that renders
him capable of these rights, what are the moral ends to which the rights
are relative, and in what form the rights should be realised in order to
the attainment of these ends. In order to make the inquiry into rights
complete, we ought to go on to examine in the same way the rights

Principles of Political Obligation/l 89

which arise out of the establishment of a state the rights connected with
the several functions of government; how these functions come to be
necessary, and how they may best be fulfilled with a view to those moral
ends to which the functions of the state are ultimately relative. Accord-
ing to my project, I should then have proceeded to consider the social
virtues, and the 'moral sentiments' which underlie our particular judg-
ments as to what is good and evil in conduct. All virtues are really
social; or, more properly, the distinction between social and self-regard-
ing virtues is a false one. Every virtue is self -regarding in the sense that
it is a disposition, or habit of will, directed to an end which the man
presents to himself as his good; every virtue is social in the sense that
unless the good to which the will is directed is one in which the well-
being of society in some form or other is involved, the will is not virtu-
ous at all.

248. The virtues are dispositions to exercise positively, in some way
contributory to social good, those powers which, because admitting of
being so exercised, society should secure to him, which a man has a
right to possess, which constitute his rights. It is therefore convenient to
arrange the virtues according to the division of rights. E.g., in regard to
the right of all men to free life, the obligations, strictly so called, cor-
relative to that right having been considered — obligations which are all
of a negative nature, obligations to forbear from meddling with one's
neighbour — we should proceed to consider the activities by which a
society of men really free is established, or by which some approach is
made to its establishment; 'really free,' in the sense of being enabled to
make the most of their capabilities. These activities will take different
forms under different social conditions, but in rough outline they are
those by which men in mutual helpfulness conquer and adapt nature,
and overcome the influences which would make them victims of chance
and accident, of brute force and animal passion. The virtuous disposi-
tion displayed in these activities may have various names applied to it
according to the particular direction in which it is exerted 'industry,'
'courage,' 'public spirit.' A particular aspect of it was brought into
relief among the Greeks under the name of andreia [manliness]. The
Greek philosophers already gave an extension to the meaning of this
term beyond that which belonged to it in popular usage, and we might
be tempted further to extend it so as to cover all the forms in which the
habit of will necessary to the maintenance and furtherance of free soci-
ety shows itself. The name, however, does not much matter. It is enough

190/T.H. Green

that there are specific modes of human activity which contribute di-
rectly to maintain a shelter for man's worthier energies against distur-
bance by natural forces and by the consequences of human fear and
lust. The state of mind which appears in them may properly be treated
as a special kind of virtue. It is true that the principle and the end of all
virtues is the same. They are all determined by relation to social well-
being as their final cause, and they all rest on an interest which domi-
nates the virtuous agent in some form or other of that well-being; but as
that interest may take different directions in different persons — as it
cannot be equally developed at once in everyone it may be said roughly
that a man has one kind of virtue and not others.

249. As the kind of moral duties (in distinction from those obliga-
tions which are correlative to rights) which relate to the maintenance of
free society and the disposition to fulfil those duties should form a spe-
cial object of inquiry, so another special kind would be those which
have to do with the management of property, with the acquisition and
expenditure of wealth. To respect the rights of property in others, to
fulfil the obligations correlative to those rights, is one thing; to make a
good use of property, to be justly generous and generously just in giving
and receiving, is another; and that may properly be treated as a special
kind of virtue which appears in the duly blended prudence, equity and
generosity of the ideal man of business. Another special kind will be
that which appears in family relations; where indeed that merely nega-
tive observance of rights which in other relations can be distinguished
from the positive fulfilment of moral duties, becomes unmeaning. As
we have seen, there are certain aggravations and perpetuations of wrong
from which husband or wife or children can be protected by law, but the
fulfilment of the of the claims which arise out of the marriage-tie re-
quires a virtuous will in the active and positive sense a will governed, by
unselfish interests on the part of those concerned.

250. What is called 'moral sentiment' is merely a weaker form of
that interest in social well-being which, when wrought into a man's hab-
its and strong enough to determine action, we call virtue. So far as this
interest is brought into play on the mere survey of action, and serves
merely to determine our approbation or disapprobation, it is called moral
sentiment. The forms of moral sentiment accordingly should be classi-
fied on the same principle as forms of virtue, i.e., with relation to the
social functions to which they correspond.

251. For the convenience of analysis, we may treat the obligations

Principles of Political Obligatioii/191

correlative to rights — obligations which it is the proper office of law to
enforce — apart from moral duties and from the virtues which are ten-
dencies to fulfil those duties. I am properly obliged to those actions and
forebearances which are requisite to the general freedom necessary if
each is not to interfere with the realisation of another's will. My duty is
to be interested positively in my neighbour's well-being. And it is im-
portant to understand that while the enforcement of obligations is pos-
sible, that of moral duties is impossible. But the establishment of obli-
gations by law or authoritative custom, and the gradual recognition of
moral duties, have not been separate processes. They have gone on to-
gether in the history of man. The growth of the institutions by which
more complete equality of rights is gradually secured to a wider range
of persons, and of those interests in various forms of social well-being
by which the will is moralised, have been related to each other as the
outer and inner side of the same spiritual development; though at a cer-
tain stage of reflection it comes to be discovered that the agency of
force, by which the rights are maintained, is ineffectual for eliciting the
moral interests. The result of the twofold process has been the creation
of the actual content of morality, the articulation of the indefinite con-
sciousness that there is something that should be a true well-being to be
aimed at other than any pleasure or succession of pleasures — into the
sentiments and interests which form an 'enlightened conscience. It is
thus that when the highest stage of reflective morality is reached and
upon interests in this or that mode of social good there supervenes an
interest in an ideal of goodness, that ideal has already a definite filling;
and the man who pursues Duty for Duty's sake, who does good for the
sake of being good or in order to realise an idea of perfection, is at no
loss to say what in particular his duty is, or by what particular methods
the perfection of character is to be approached.