Wollstonecraft, Austin, and Spencer | Classics in Political Philosophy

WOLLSTONECRAFT, AUSTIN, SPENCER

From Classics in Political Philosophy, by James Fieser

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CONTENTS

• Mary Wollstonecraft: Rights of Women (from A Vindication of the Rights of Woman)

• John Austin: Positive Law (from Lectures on Jurisprudence)

• Herbert Spencer: The Limited Role of Government (from "The Proper Sphere of Government" and "Social Statics")

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MARY WOLLSTONECRAFT: THE RIGHTS OF WOMEN

Born in London to an abusive alcoholic father, Mary Wollstonecraft (1759–1797) was an author in a variety of genres and an early defender of women's rights. During the last year of her life, at age 38, she married political philosopher William Godwin and died shortly after the delivery of their daughter, Mary Shelley, the author of the Frankenstein. Wollstonecraft worked as a tutor and teacher, and her first publications were on education. For several years she worked as a reviewer for the liberal periodical Analytical Review, and wrote articles on a variety of topics, including political ones. Her first philosophical publication, A Vindication of the Rights of Men (1790), was a critique of Edmund Burke's Reflections on the French Revolution in which she denounces the aristocracy and defends republicanism. Two years later she published A Vindication of the Rights of Woman (1792), from which the selections below are taken. In this work she argues that, while women are physically weaker than men, they are rational equals and thus capable of developing the same moral characteristics. However, she maintains, women of her time have been improperly educated, and books on education, such as Rousseau's Emile, teach women to become alluring and flirty mistresses rather than rational wives. Such books perpetuate the view that women can be protected by men through childlike mannerisms and beauty. The best education, she believes, is that which makes women independent. Class distinction, she argues, corrupts all society, and while some men can rise above it, it is almost impossible for women to do so. Laws lower the legal status of women by linking them with their husbands who have full domestic authority. But with the proper education women could become physicians, midwives, farm managers, shop owners and even politicians.

AGAINST BURKE'S CONSERVATIVISM (from Vindication of the Rights of Men, 1790)

Natural Rights better than Biased Old Traditions

The civilization which has taken place in Europe has been very partial, and, like every custom that an arbitrary point of honor has established, refines the manners at the expense of morals, by making sentiments and opinions current in conversation that have no root in the heart, or weight in the cooler resolves of the mind. -- And what has stopped its progress? -- hereditary property -- hereditary honors. The man has been changed into an artificial monster by the station in which he was born, and the consequent homage that benumbed his faculties like the torpedo's touch; -- or a being, with a capacity of reasoning, would not have failed to discover, as his faculties unfolded, that true happiness arose from the friendship and intimacy which can only be enjoyed by equals; and that charity is not a condescending distribution of alms, but an intercourse of good offices and mutual benefits, founded on respect for justice and humanity. . . .

Will Mr. Burke be at the trouble to inform us, how far we are to go back to discover the rights of men, since the light of reason is such a fallacious guide that none but fools trust to its cold investigation? . . .

Are we to seek for the rights of men in the ages when a few marks were the only penalty imposed for the life of a man, and death for death when the property of the rich was touched? When -- I blush to discover the depravity of our nature–when a deer was killed! Are these the laws that it is natural to love, and sacrilegious to invade? -- Were the rights of men understood when the law authorized or tolerated murder? -- or is power and right the same in your creed? . . .

It is necessary emphatically to repeat, that there are rights which men inherit at their birth, as rational creatures, who were raised above the brute creation by their improvable faculties; and that, in receiving these, not from their forefathers but, from God, prescription can never undermine natural rights.

Negative Impact of Inheritance Traditions on Women

The perpetuation of property in our families is one of the privileges you most warmly contend for; yet it would not be very difficult to prove that the mind must have a very limited range that thus confines its benevolence to such a narrow circle, which, with great propriety, may be included in the sordid calculations of blind self-love.

A brutal attachment to children has appeared most conspicuous in parents who have treated them like slaves, and demanded due homage for all the property they transferred to them, during their lives. It has led them to force their children to break the most sacred ties; to do violence to a natural impulse, and run into legal prostitution to increase wealth or shun poverty. . .

The same system has an equally pernicious effect on female morals. -- Girls are sacrificed to family convenience, or else marry to settle themselves in a superior rank, and coquet [i.e., flirt], without restraint, with the fine gentleman whom I have already described. And to such lengths has this vanity, this desire of shining, carried them, that it is not now necessary to guard girls against imprudent love matches; for if some widows did not now and then fall in love, Love and Hymen would seldom meet, unless at a village church.

I do not intend to be sarcastically paradoxical when I say, that women of fashion take husbands that they may have it in their power to coquet, the grand business of genteel life, with a number of admirers, and thus flutter the spring of life away, without laying up any store for the winter of age, or being of any use to society. Affection in the marriage state can only be founded on respect -- and are these weak beings respectable? Children are neglected for lovers, and we express surprise that adulteries are so common! A woman never forgets to adorn herself to make an impression on the senses of the other sex, and to extort the homage which it is gallant to pay, and yet we wonder that they have such confined understandings.

THE CURRENT STATUS OF WOMEN (from Vindication of the Rights of Woman, 1792)

Changes in Social Attitude Needed regarding Women (Dedication)

. . . Contending for the rights of women, my main argument is built on this simple principle, that if she be not prepared by education to become the companion of man, she will stop the progress of knowledge, for truth must be common to all, or it will be inefficacious with respect to its influence on general practice. And how can woman be expected to co-operate, unless she know why she ought to be virtuous? Unless freedom strengthen her reason till she comprehend her duty, and see in what manner it is connected with her real good? If children are to be educated to understand the true principle of patriotism, their mother must be a patriot; and the love of mankind, from which an orderly train of virtues spring, can only be produced by considering the moral and civil interest of mankind; but the education and situation of woman, at present, shuts her out from such investigations.

In this work I have produced many arguments, which to me were conclusive, to prove, that the prevailing notion respecting a sexual character was subversive of morality, and I have contended, that to render the human body and mind more perfect, chastity must more universally prevail, and that chastity will never be respected in the male world till the person of a woman is not, as it were, idolized when little virtue or sense embellish it with the grand traces of mental beauty, or the interesting simplicity of affection. . . .

Consider, I address you as a legislator, whether, when men contend for their freedom, and to be allowed to judge for themselves, respecting their own happiness, it be not inconsistent and unjust to subjugate women, even though you firmly believe that you are acting in the manner best calculated to promote their happiness? Who made man the exclusive judge, if woman partake with him the gift of reason?

In this style, argue tyrants of every denomination from the weak king to the weak father of a family; they are all eager to crush reason; yet always assert that they usurp its throne only to be useful. Do you not act a similar part, when you force all women, by denying them civil and political rights, to remain immured in their families groping in the dark? For surely, sir, you will not assert, that a duty can be binding which is not founded on reason? If, indeed, this be their destination, arguments may be drawn from reason; and thus augustly supported, the more understanding women acquire, the more they will be attached to their duty, comprehending it, for unless they comprehend it, unless their morals be fixed on the same immutable principles as those of man, no authority can make them discharge it in a virtuous manner. They may be convenient slaves, but slavery will have its constant effect, degrading the master and the abject dependent.

Harmful Stereotypes of Women (Introduction)

After considering the historic page, and viewing the living world with anxious solicitude, the most melancholy emotions of sorrowful indignation have depressed my spirits, and I have sighed when obliged to confess, that either nature has made a great difference between man and man, or that the civilization, which has hitherto taken place in the world, has been very partial. I have turned over various books written on the subject of education, and patiently observed the conduct of parents and the management of schools; but what has been the result? a profound conviction, that the neglected education of my fellow creatures is the grand source of the misery I deplore; and that women in particular, are rendered weak and wretched by a variety of concurring causes, originating from one hasty conclusion. The conduct and manners of women, in fact, evidently prove, that their minds are not in a healthy state; for, like the flowers that are planted in too rich a soil, strength and usefulness are sacrificed to beauty; and the flaunting leaves, after having pleased a fastidious eye, fade, disregarded on the stalk, long before the season when they ought to have arrived at maturity. One cause of this barren blooming I attribute to a false system of education, gathered from the books written on this subject by men, who, considering females rather as women than human creatures, have been more anxious to make them alluring mistresses than rational wives; and the understanding of the sex has been so bubbled by this specious homage, that the civilized women of the present century, with a few exceptions, are only anxious to inspire love, when they ought to cherish a nobler ambition, and by their abilities and virtues exact respect.

. . . In the government of the physical world, it is observable that the female, in general, is inferior to the male. The male pursues, the female yields—this is the law of nature; and it does not appear to be suspended or abrogated in favor of woman. This physical superiority cannot be denied—and it is a noble prerogative! But not content with this natural pre-eminence, men endeavor to sink us still lower, merely to render us alluring objects for a moment; and women, intoxicated by the adoration which men, under the influence of their senses, pay them, do not seek to obtain a durable interest in their hearts, or to become the friends of the fellow creatures who find amusement in their society.

I am aware of an obvious inference: from every quarter have I heard exclamations against masculine women; but where are they to be found? If, by this appellation, men mean to inveigh against their ardor in hunting, shooting, and gaming, I shall most cordially join in the cry; but if it be, against the imitation of manly virtues, or, more properly speaking, the attainment of those talents and virtues, the exercise of which ennobles the human character, and which raise females in the scale of animal being, when they are comprehensively termed mankind—all those who view them with a philosophical eye must, I should think, wish with me, that they may every day grow more and more masculine. . . .

The education of women has, of late, been more attended to than formerly; yet they are still reckoned a frivolous sex, and ridiculed or pitied by the writers who endeavor by satire or instruction to improve them. It is acknowledged that they spend many of the first years of their lives in acquiring a smattering of accomplishments: meanwhile, strength of body and mind are sacrificed to libertine notions of beauty, to the desire of establishing themselves, the only way women can rise in the world—by marriage. And this desire making mere animals of them, when they marry, they act as such children may be expected to act: they dress; they paint, and nickname God's creatures.

Reason, Virtue and Knowledge the Foundation of Humanity (Chapter 1)

In the present state of society, it appears necessary to go back to first principles in search of the most simple truths, and to dispute with some prevailing prejudice every inch of ground. To clear my way, I must be allowed to ask some plain questions, and the answers will probably appear as unequivocal as the axioms on which reasoning is built; though, when entangled with various motives of action, they are formally contradicted, either by the words or conduct of men.

In what does man's pre-eminence over the brute creation consist? The answer is as clear as that a half is less than the whole; in Reason.

What acquirement exalts one being above another? Virtue; we spontaneously reply.

For what purpose were the passions implanted? That man by struggling with them might attain a degree of knowledge denied to the brutes: whispers Experience.

Consequently the perfection of our nature and capability of happiness, must be estimated by the degree of reason, virtue, and knowledge, that distinguish the individual, and direct the laws which bind society: and that from the exercise of reason, knowledge and virtue naturally flow, is equally undeniable, if mankind be viewed collectively.

The rights and duties of man thus simplified, it seems almost impertinent to attempt to illustrate truths that appear so incontrovertible: yet such deeply rooted prejudices have clouded reason, and such spurious qualities have assumed the name of virtues, that it is necessary to pursue the course of reason as it has been perplexed and involved in error, by various adventitious circumstances, comparing the simple axiom with casual deviations.

AGAINST THE COMMON VIEWS OF FEMALE COQUETTISHNESS (Chapter 2)

Female Subjugation results from Improper Education

To account for, and excuse the tyranny of man, many ingenious arguments have been brought forward to prove, that the two sexes, in the acquirement of virtue, ought to aim at attaining a very different character: or, to speak explicitly, women are not allowed to have sufficient strength of mind to acquire what really deserves the name of virtue. Yet it should seem, allowing them to have souls, that there is but one way appointed by providence to lead mankind to either virtue or happiness.

If then women are not a swarm of ephemeron triflers, why should they be kept in ignorance under the specious name of innocence? Men complain, and with reason, of the follies and caprices of our sex, when they do not keenly satirize our headstrong passions and groveling vices. Behold, I should answer, the natural effect of ignorance! The mind will ever be unstable that has only prejudices to rest on, and the current will run with destructive fury when there are no barriers to break its force. Women are told from their infancy, and taught by the example of their mothers, that a little knowledge of [male] human weakness, justly termed cunning, softness of temper, outward obedience, and a scrupulous attention to a puerile kind of propriety, will obtain for them the protection of man; and should they be beautiful, every thing else is needless, for at least twenty years of their lives. . . .

Consequently, the most perfect education, in my opinion, is such an exercise of the understanding as is best calculated to strengthen the body and form the heart; or, in other words, to enable the individual to attain such habits of virtue as will render it independent. In fact, it is a farce to call any being virtuous whose virtues do not result from the exercise of its own reason. This was Rousseau's opinion respecting men: I extend it to women, and confidently assert that they have been drawn out of their sphere by false refinement, and not by an endeavor to acquire masculine qualities. Still the regal homage which they receive is so intoxicating, that, till the manners of the times are changed, and formed on more reasonable principles, it may be impossible to convince them that the illegitimate power, which they obtain by degrading themselves, is a curse, and that they must return to nature and equality, if they wish to secure the placid satisfaction that unsophisticated affections impart. But for this epoch we must wait—wait, perhaps, till kings and nobles, enlightened by reason, and, preferring the real dignity of man to childish state, throw off their gaudy hereditary trappings; and if then women do not resign the arbitrary power of beauty, they will prove that they have less mind than man. I may be accused of arrogance; still I must declare, what I firmly believe, that all the writers who have written on the subject of female education and manners, from Rousseau to Dr. Gregory, have contributed to render women more artificial, weaker characters, than they would otherwise have been; and, consequently, more useless members of society. . . .

To do everything in an orderly manner, is a most important precept, which women, who, generally speaking, receive only a disorderly kind of education, seldom attend to with that degree of exactness that men, who from their infancy are broken into method, observe. This negligent kind of guesswork, for what other epithet can be used to point out the random exertions of a sort of instinctive common sense, never brought to the test of reason? prevents their generalizing matters of fact, so they do today, what they did yesterday, merely because they did it yesterday.

This contempt of the understanding in early life has more baneful consequences than is commonly supposed; for the little knowledge which women of strong minds attain, is, from various circumstances, of a more desultory kind than the knowledge of men, and it is acquired more by sheer observations on real life, than from comparing what has been individually observed with the results of experience generalized by speculation. Led by their dependent situation and domestic employments more into society, what they learn is rather by snatches; and as learning is with them, in general, only a secondary thing, they do not pursue any one branch with that persevering ardor necessary to give vigor to the faculties, and clearness to the judgment. . . .

Women are, therefore, to be considered either as moral beings, or so weak that they must be entirely subjected to the superior faculties of men.

Against Rousseau's view of Female Coquetry

Let us examine this question. Rousseau declares, that a woman should never, for a moment feel herself independent, that she should be governed by fear to exercise her natural cunning, and made a coquettish [i.e., flirty] slave in order to render her a more alluring object of desire, a sweeter companion to man, whenever he chooses to relax himself. He carries the arguments, which he pretends to draw from the indications of nature, still further, and insinuates that truth and fortitude the corner stones of all human virtue, shall be cultivated with certain restrictions, because with respect to the female character, obedience is the grand lesson which ought to be impressed with unrelenting rigor.

What nonsense! When will a great man arise with sufficient strength of mind to puff away the fumes which pride and sensuality have thus spread over the subject! If women are by nature inferior to men, their virtues must be the same in quality, if not in degree, or virtue is a relative idea; consequently, their conduct should be founded on the same principles, and have the same aim.

Connected with man as daughters, wives, and mothers, their moral character may be estimated by their manner of fulfilling those simple duties; but the end, the grand end of their exertions should be to unfold their own faculties, and acquire the dignity of conscious virtue. They may try to render their road pleasant; but ought never to forget, in common with man, that life yields not the felicity which can satisfy an immortal soul. I do not mean to insinuate, that either sex should be so lost, in abstract reflections or distant views, as to forget the affections and duties that lie before them, and are, in truth, the means appointed to produce the fruit of life; on the contrary, I would warmly recommend them, even while I assert, that they afford most satisfaction when they are considered in their true subordinate light.

Probably the prevailing opinion, that woman was created for man, may have taken its rise from Moses's poetical story; yet, as very few it is presumed, who have bestowed any serious thought on the subject, ever supposed that Eve was, literally speaking, one of Adam's ribs, the deduction must be allowed to fall to the ground; or, only be so far admitted as it proves that man, from the remotest antiquity, found it convenient to exert his strength to subjugate his companion, and his invention to show that she ought to have her neck bent under the yoke; because she as well as the brute creation, was created to do his pleasure. . . .

To speak disrespectfully of love is, I know, high treason against sentiment and fine feelings; but I wish to speak the simple language of truth, and rather to address the head than the heart. . . . Youth is the season for love in both sexes; but in those days of thoughtless enjoyment, provision should be made for the more important years of life, when reflection takes place of sensation. But Rousseau, and most of the male writers who have followed his steps, have warmly inculcated that the whole tendency of female education ought to be directed to one point to render them pleasing.

Against Traditional Female Weakness and Coquettish Arts

Nature has given woman a weaker frame than man; but, to ensure her husband's affections, must a wife, who, by the exercise of her mind and body, whilst she was discharging the duties of a daughter, wife, and mother, has allowed her constitution to retain its natural strength, and her nerves a healthy tone, is she, I say, to condescend, to use art, and feign a sickly delicacy, in order to secure her husband's affection? Weakness may excite tenderness, and gratify the arrogant pride of man; but the lordly caresses of a protector will not gratify a noble mind that pants for and deserves to be respected. Fondness is a poor substitute for friendship!

In a seraglio [i.e., a Muslim place of seclusion for women], I grant, that all these arts are necessary; the epicure must have his palate tickled, or he will sink into apathy; but have women so little ambition as to be satisfied with such a condition? Can they supinely dream life away in the lap of pleasure, or in the languor of weariness, rather than assert their claim to pursue reasonable pleasures, and render themselves conspicuous, by practicing the virtues which dignify mankind? Surely she has not an immortal soul who can loiter life away, merely employed to adorn her person, that she may amuse the languid hours, and soften the cares of a fellow-creature who is willing to be enlivened by her smiles and tricks, when the serious business of life is over.

Besides, the woman who strengthens her body and exercises her mind will, by managing her family and practicing various virtues, become the friend, and not the humble dependent of her husband; and if she deserves his regard by possessing such substantial qualities, she will not find it necessary to conceal her affection, nor to pretend to an unnatural coldness of constitution to excite her husband's passions. In fact, if we revert to history, we shall find that the women who have distinguished themselves have neither been the most beautiful nor the most gentle of their sex. . . .

Why must the female mind be tainted by coquettish arts to gratify the sensualist, and prevent love from subsiding into friendship or compassionate tenderness, when there are not qualities on which friendship can be built? Let the honest heart show itself, and reason teach passion to submit to necessity; or, let the dignified pursuit of virtue and knowledge raise the mind above those emotions which rather embitter than sweeten the cup of life, when they are not restrained within due bounds. . . .

Noble morality! and consistent with the cautious prudence of a little soul that cannot extend its views beyond the present minute division of existence. If all the faculties of woman's mind are only to be cultivated as they respect her dependence on man; if, when she obtains a husband she has arrived at her goal, and meanly proud, is satisfied with such a paltry crown, let her grovel contentedly, scarcely raised by her employments above the animal kingdom; but, if she is struggling for the prize of her high calling, let her cultivate her understanding without stopping to consider what character the husband may have whom she is destined to marry. Let her only determine, without being too anxious about present happiness, to acquire the qualities that ennoble a rational being, and a rough, inelegant husband may shock her taste without destroying her peace of mind. She will not model her soul to suit the frailties of her companion, but to bear with them: his character may be a trial, but not an impediment to virtue. . . .

I own it frequently happens, that women who have fostered a romantic unnatural delicacy of feeling, waste their lives in imagining how happy they should have been with a husband who could love them with a fervid increasing affection every day, and all day. But they might as well pine married as single, and would not be a jot more unhappy with a bad husband than longing for a good one. . . .

Surely there can be but one rule of right, if morality has an eternal foundation, and whoever sacrifices virtue, strictly so called, to present convenience, or whose duty it is to act in such a manner, lives only for the passing day, and cannot be an accountable creature.

Playing with Dolls no proof of Natural Coquettishness (Chapter 3)

As for Rousseau's remarks, which have since been echoed by several writers, that they have naturally, that is from their birth, independent of education, a fondness for dolls, dressing, and talking, they are so puerile as not to merit a serious refutation. That a girl, condemned to sit for hours together listening to the idle chat of weak nurses or to attend at her mother's toilet, will endeavor to join the conversation, is, indeed very natural; and that she will imitate her mother or aunts, and amuse herself by adorning her lifeless doll, as they do in dressing her, poor innocent babe! is undoubtedly a most natural consequence. For men of the greatest abilities have seldom had sufficient strength to rise above the surrounding atmosphere; and, if the page of genius has always been blurred by the prejudices of the age, some allowance should be made for a sex, who, like kings, always see things through a false medium.

In this manner may the fondness for dress, conspicuous in women, be easily accounted for, without supposing it the result of a desire to please the sex on which they are dependent. The absurdity, in short, of supposing that a girl is naturally a coquette, and that a desire connected with the impulse of nature to propagate the species, should appear even before an improper education has, by heating the imagination, called it forth prematurely, is so unphilosophical, that such a sagacious observer as Rousseau would not have adopted it, if he had not been accustomed to make reason give way to his desire of singularity, and truth to a favorite paradox. . . .

I have, probably, had an opportunity of observing more girls in their infancy than J. J. Rousseau. I can recollect my own feelings, and I have looked steadily around me; yet, so far from coinciding with him in opinion respecting the first dawn of the female character, I will venture to affirm, that a girl, whose spirits have not been damped by inactivity, or innocence tainted by false shame, will always be a romp, and the doll will never excite attention unless confinement allows her no alternative. Girls and boys, in short, would play harmless together, if the distinction of sex was not inculcated long before nature makes any difference. I will, go further, and affirm, as an indisputable fact, that most of the women, in the circle of my observation, who have acted like rational creatures, or shown any vigor of intellect, have accidentally been allowed to run wild, as some of the elegant formers of the fair sex would insinuate.

The baneful consequences which flow from inattention to health during infancy, and youth, extend further than is supposed, dependence of body naturally produces dependence of mind; and how can she be a good wife or mother, the greater part of whose time is employed to guard against or endure sickness; nor can it be expected, that a woman will resolutely endeavor to strengthen her constitution and abstain from enervating indulgences, if artificial notions of beauty, and false descriptions of sensibility, have been early entangled with her motives of action. Most men are sometimes obliged to bear with bodily inconveniences, and to endure, occasionally, the inclemency of the elements; but genteel women are, literally speaking, slaves to their bodies, and glory in their subjection. . . .

Women are everywhere in this deplorable state; for, in order to preserve their innocence, as ignorance is courteously termed, truth is hidden from them, and they are made to assume an artificial character before their faculties have acquired any strength. Taught from their infancy, that beauty is woman's scepter, the mind shapes itself to the body, and, roaming round its gilt cage, only seeks to adorn its prison. Men have various employments and pursuits which engage their attention, and give a character to the opening mind; but women, confined to one, and having their thoughts constantly directed to the most insignificant part of themselves, seldom extend their views beyond the triumph of the hour. But was their understanding once emancipated from the slavery to which the pride and sensuality of man and their short sighted desire, like that of dominion in tyrants, of present sway, has subjected them, we should probably read of their weaknesses with surprise. . . .

Moral Virtues and Duties the Same for Men and Women

I wish to sum up what I have said in a few words, for I here throw down my gauntlet, and deny the existence of sexual virtues, not excepting modesty. For man and woman, truth, if I understand the meaning of the word, must be the same; yet the fanciful female character, so prettily drawn by poets and novelists, demanding the sacrifice of truth and sincerity, virtue becomes a relative idea, having no other foundation than utility, and of that utility men pretend arbitrarily to judge, shaping it to their own convenience.

Women, I allow, may have different duties to fulfill; but they are human duties, and the principles that should regulate the discharge of them, I sturdily maintain, must be the same.

To become respectable, the exercise of their understanding is necessary, there is no other foundation for independence of character; I mean explicitly to say, that they must only bow to the authority of reason, instead of being the modest slaves of opinion.

Early Association of Ideas Negatively Impacts Female Character (Chapter 6)

Educated in the enervating [i.e., exhausting] style recommended by the writers on whom I have been animadverting; and not having a chance, from their subordinate state in society, to recover their lost ground, is it surprising that women everywhere appear a defect in nature? Is it surprising, when we consider what a determinate effect an early association of ideas has on the character, that they neglect their understandings, and turn all their attention to their persons? . . .

Everything that they see or hear serves to fix impressions, call forth emotions, and associate ideas, that give a sexual character to the mind. False notions of beauty and delicacy stop the growth of their limbs and produce a sickly soreness, rather than delicacy of organs; and thus weakened by being employed in unfolding instead of examining the first associations, forced on them by every surrounding object, how can they attain the vigor necessary to enable them to throw off their factitious character?—where find strength to recur to reason and rise superior to a system of oppression, that blasts the fair promises of spring? This cruel association of ideas, which everything conspires to twist into all their habits of thinking, or, to speak with more precision, of feeling, receives new force when they begin to act a little for themselves; for they then perceive, that it is only through their address to excite emotions in men, that pleasure and power are to be obtained. Besides, all the books professedly written for their instruction, which make the first impression on their minds, all inculcate the same opinions. Educated in worse than Egyptian bondage, it is unreasonable, as well as cruel, to upbraid them with faults that can scarcely be avoided, unless a degree of native vigor be supposed, that falls to the lot of very few amongst mankind.

FUTURE POSSIBILITIES FOR WOMEN

Social Obstacles to Woman's Rights (Chapter 9)

There must be more equality established in society, or morality will never gain ground, and this virtuous equality will not rest firmly even when founded on a rock, if one half of mankind are chained to its bottom by fate, for they will be continually undermining it through ignorance or pride. It is vain to expect virtue from women till they are, in some degree, independent of men; nay, it is vain to expect that strength of natural affection, which would make them good wives and good mothers. Whilst they are absolutely dependent on their husbands, they will be cunning, mean, and selfish, and the men who can be gratified by the fawning fondness, of spaniel-like affection, have not much delicacy, for love is not to be bought, in any sense of the word, its silken wings are instantly shriveled up when anything beside a return in kind is sought. Yet whilst wealth enervates men; and women live, as it were, by their personal charms, how can we expect them to discharge those ennobling duties which equally require exertion and self-denial. . . .

The preposterous distinctions of rank, which render civilization a curse, by dividing the world between voluptuous tyrants, and cunning envious dependents, corrupt, almost equally, every class of people, because respectability is not attached to the discharge of the relative duties of life, but to the station, and when the duties are not fulfilled, the affections cannot gain sufficient strength to fortify the virtue of which they are the natural reward. Still there are some loop-holes out of which a man may creep, and dare to think and act for himself; but for a woman it is an herculean task, because she has difficulties peculiar to her sex to overcome, which require almost super-human powers. . . .

Women are in common with men, rendered weak and luxurious by the relaxing pleasures which wealth procures; but added to this, they are made slaves to their persons, and must render them alluring, that man may lend them his reason to guide their tottering steps aright. Or should they be ambitious, they must govern their tyrants by sinister tricks, for without rights there cannot be any incumbent duties. The laws respecting woman, which I mean to discuss in a future part, make an absurd unit of a man and his wife; and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher [i.e., a zero].

The being who discharges the duties of its station, is independent; and, speaking of women at large, their first duty is to themselves as rational creatures, and the next, in point of importance, as citizens, is that, which includes so many, of a mother. The rank in life which dispenses with their fulfilling this duty, necessarily degrades them by making them mere dolls. Or, should they turn to something more important than merely fitting drapery upon a smooth block, their minds are only occupied by some soft platonic attachment; or, the actual management of an intrigue may keep their thoughts in motion; for when they neglect domestic duties, they have it not in their power to take the field and march and counter-march like soldiers, or wrangle in the senate to keep their faculties from rusting.

I know, that as a proof of the inferiority of the sex, Rousseau has exultingly exclaimed, How can they leave the nursery for the camp! And the camp has by some moralists been termed the school of the most heroic virtues . . . . . But fair and softly, gentle reader, male or female, do not alarm thyself, for though I have contrasted the character of a modern soldier with that of a civilized woman, I am not going to advise them to turn their distaff into a musket, though I sincerely wish to see the bayonet converted into a pruning hook. . . . But, to render her really virtuous and useful, she must not, if she discharge her civil duties, want [i.e., lack], individually, the protection of civil laws; she must not be dependent on her husband's bounty for her subsistence during his life, or support after his death. . . .

Occupations for Women

I cannot help lamenting that women of a superior cast have not a road open by which they can pursue more extensive plans of usefulness and independence. I may excite laughter, by dropping an hint, which I mean to pursue, some future time, for I really think that women ought to have representatives, instead of being arbitrarily governed without having any direct share allowed them in the deliberations of government. . . .

But what have women to do in society? I may be asked, but to loiter with easy grace; surely you would not condemn them all to suckle fools, and chronicle small beer! No. Women might certainly study the art of healing, and be physicians as well as nurses. And midwifery, decency seems to allot to them, though I am afraid the word midwife, in our dictionaries, will soon give place to accoucheur [i.e., a male midwife], and one proof of the former delicacy of the sex be effaced from the language.

They might, also study politics, and settle their benevolence on the broadest basis; for the reading of history will scarcely be more useful than the perusal of romances, if read as mere biography; if the character of the times, the political improvements, arts, etc. be not observed. . . . Business of various kinds, they might likewise pursue, if they were educated in a more orderly manner, which might save many from common and legal prostitution. Women would not then marry for a support, as men accept of places under government, and neglect the implied duties; nor would an attempt to earn their own subsistence, a most laudable one! sink them almost to the level of those poor abandoned creatures who live by prostitution. For are not milliners and mantuamakers [i.e., dress makers] reckoned the next class? . . .

It is a melancholy truth; yet such is the blessed effects of civilization! the most respectable women are the most oppressed; and, unless they have understandings far superior to the common run of understandings, taking in both sexes, they must, from being treated like contemptible beings, become contemptible. How many women thus waste life away, the prey of discontent, who might have practiced as physicians, regulated a farm, managed a shop, and stood erect, supported by their own industry, instead of hanging their heads surcharged with the dew of sensibility, that consumes the beauty to which it at first gave luster; nay, I doubt whether pity and love are so near a-kin as poets feign, for I have seldom seen much compassion excited by the helplessness of females, unless they were fair; then, perhaps, pity was the soft handmaid of love, or the harbinger of lust.

How much more respectable is the woman who earns her own bread by fulfilling any duty, than the most accomplished beauty! beauty did I say? so sensible am I of the beauty of moral loveliness, or the harmonious propriety that attunes the passions of a well-regulated mind, that I blush at making the comparison; yet I sigh to think how few women aim at attaining this respectability, by withdrawing from the giddy whirl of pleasure, or the indolent calm that stupefies the good sort of women it sucks in. . . .

WOMEN'S DUTIES AND THE FAMILY (Chapter 10)

Good Childrearing based on Female Independence

Woman, however, a slave in every situation to prejudice seldom exerts enlightened maternal affection; for she either neglects her children, or spoils them by improper indulgence. Besides, the affection of some women for their children is, as I have before termed it, frequently very brutish; for it eradicates every spark of humanity. Justice, truth, every thing is sacrificed by these Rebekahs, and for the sake of their own children they violate the most sacred duties, forgetting the common relationship that binds the whole family on earth together. Yet, reason seems to say, that they who suffer one duty, or affection to swallow up the rest, have not sufficient heart or mind to fulfil that one conscientiously. It then loses the venerable aspect of a duty, and assumes the fantastic form of a whim.

As the care of children in their infancy is one of the grand duties annexed to the female character by nature, this duty would afford many forcible arguments for strengthening the female understanding, if it were properly considered.

The formation of the mind must be begun very early, and the temper, in particular, requires the most judicious attention—an attention which women cannot pay who only love their children because they are their children, and seek no further for the foundation of their duty, than in the feelings of the moment. It is this want [i.e., lack] of reason in their affections which makes women so often run into extremes, and either be the most fond, or most careless and unnatural mothers.

To be a good mother—a woman must have sense, and that independence of mind which few women possess who are taught to depend entirely on their husbands. Meek wives are, in general, foolish mothers; wanting their children to love them best, and take their part, in secret, against the father, who is held up as a scarecrow. . . .

The Harmful Sentimentalist Influence of Novels (Chapter 13.2)

Another instance of that feminine weakness of character, often produced by a confined education, is a romantic twist of the mind, which has been very properly termed "sentimental."

Women, subjected by ignorance to their sensations, and only taught to look for happiness in love, refine on sensual feelings, and adopt metaphysical notions respecting that passion, which lead them shamefully to neglect the duties of life, and frequently in the midst of these sublime refinements they plunge into actual vice.

These are the women who are amused by the reveries of the stupid novelists, who, knowing little of human nature, work up stale tales, and describe meretricious [i.e., promiscuous] scenes, all retailed in a sentimental jargon, which equally tend to corrupt the taste, and draw the heart aside from its daily duties. I do not mention the understanding, because never having been exercised, its slumbering energies rest inactive, like the lurking particles of fire which are supposed universally to pervade matter. . .

But, confined to trifling employments, they naturally imbibe opinions which the only kind of reading calculated to interest an innocent frivolous mind, inspires. Unable to grasp anything great, is it surprising that they find the reading of history a very dry task, and disquisitions addressed to the understanding, intolerably tedious, and almost unintelligible? Thus are they necessarily dependent on the novelist for amusement. Yet, when I exclaim against novels, I mean when contrasted with those works which exercise the understanding and regulate the imagination. . . .

The best method, I believe, that can be adopted to correct a fondness for novels is to ridicule them; not indiscriminately, for then it would have little effect; but, if a judicious person, with some turn for humor, would read several to a young girl, and point out, both by tones and apt comparisons with pathetic incidents and heroic characters in history, how foolishly and ridiculously they caricatured human nature, just opinions might be substituted instead of romantic sentiments.

Marriage based on Friendship, not Lust (Chapter 13.6)

That women at present are by ignorance rendered foolish or vicious, is, I think, not to be disputed; and, that the most salutary effects tending to improve mankind, might be expected from a revolution in female manners, appears at least, with a face of probability, to rise out of the observation. For as marriage has been termed the parent of those endearing charities, which draw man from the brutal herd, the corrupting intercourse that wealth, idleness, and folly produce between the sexes, is more universally injurious to morality, than all the other vices of mankind collectively considered. To adulterous lust the most sacred duties are sacrificed, because, before marriage, men, by a promiscuous intimacy with women, learned to consider love as a selfish gratification—learned to separate it not only from esteem, but from the affection merely built on habit, which mixes a little humanity with it. Justice and friendship are also set at defiance, and that purity of taste is vitiated, which would naturally lead a man to relish an artless display of affection, rather than affected airs. But that noble simplicity of affection, which dares to appear unadorned, has few attractions for the libertine, though it be the charm, which, by cementing the matrimonial tie, secures to the pledges of a warmer passion the necessary parental attention; for children will never be properly educated till friendship subsists between parents. Virtue flies from a house divided against itself—and a whole legion of devils take up their residence there.

The affection of husbands and wives cannot be pure when they have so few sentiments in common, and when so little confidence is established at home, as must be the case when their pursuits are so different. That intimacy from which tenderness should flow, will not, cannot subsist between the vicious.

Contending, therefore, that the sexual distinction, which men have so warmly insisted upon, is arbitrary, I have dwelt on an observation, that several sensible men, with whom I have conversed on the subject, allowed to be well founded. And it is simply this, that the little chastity to be found amongst men, and consequent disregard of modesty, tend to degrade both sexes; and further, that the modesty of women, characterized as such, will often be only the artful veil of wantonness [i.e., promiscuousness], instead of being the natural reflection of purity, till modesty be universally respected. . . .

Women's Duties hinge on Women's Rights

Asserting the rights which women in common with men ought to contend for, I have not attempted to extenuate their faults; but to prove them to be the natural consequence of their education and station in society. If so, it is reasonable to suppose, that they will change their character, and correct their vices and follies, when they are allowed to be free in a physical, moral, and civil sense.

Let woman share the rights, and she will emulate the virtues of man; for she must grow more perfect when emancipated, or justify the authority that chains such a weak being to her duty. If the latter, it will be expedient to open a fresh trade with Russia for whips; a present which a father should always make to his son-in-law on his wedding day, that a husband may keep his whole family in order by the same means; and without any violation of justice reign, wielding this scepter, sole master of his house, because he is the only being in it who has reason; the divine, indefeasible, earthly sovereignty breathed into man by the Master of the universe. Allowing this position, women have not any inherent rights to claim; and, by the same rule their duties vanish, for rights and duties are inseparable.

Source: Mary Wollstonecraft, A Vindication of the Rights of Woman (1792)

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JOHN AUSTIN: POSITIVE LAW

Born in Suffolk, England, John Austin (1790–1859) briefly practiced law and later became a professor of jurisprudence at the University of London. Though his lectures attracted distinguished visitors, including John Stuart Mill, student attendance was sparse, and he resigned after six years. Austin published his lectures under the title The Province of Jurisprudence Determined (1832), but these attracted little attention. After his death his wife published a revised version with the addition of new manuscript notes, which appeared as Lectures on Jurisprudence (1863). This generated the fame that Austin never achieved during his life, and is responsible for his reputation today as the father of analytic jurisprudence. The following is from Lecture 5 of that work, in which he articulates the main features of his theory of positive law. For background, in Lectures 2-4 he defends the principle of utility as "our only index or guide" to discovering the moral laws which are not revealed in scripture (Lecture 2). He writes that "If our conduct were truly adjusted to the principle of general utility, our conduct would conform, for the most part, to laws or rules: laws or rules which are set by the Deity, and to which the tendencies of classes of actions are the guide or index" (Lecture 3). He concedes that our ability to discover the full utilitarian tendencies of human actions is limited, and thus "God's commands are imperfectly signified to man" (Lecture 4). Still, he states, general utility is the best guide we have of God's will, and legislators should use utility when creating laws. This being so, however, Austin continues in Lecture 5 arguing that the laws created by governments are valid and count as "laws" irrespective of their moral status. For Austin, "positive laws" are those that contain no reference to their morality, regardless of whether those laws happen to be good or are the reflections of a particular society. This aspect of Austin's theory is now called the "separation thesis": laws gain their validity independently of morality (even though some valid laws may also be moral). To count as a "law", all that is needed is that it be (1) a command by a sovereign that is (2) backed by punishment and (3) carries a duty to avoid that punishment. These three components are now referred to as Austin's "command theory of law." Positive laws originate from either (1) a monarch or political sovereign, (2) subordinate political rulers acting with authority from the sovereign, or (3) private people exercising the rights granted them by the sovereign. Austin's "dogma" of legal positivism, as it is sometimes called, is that "The existence of law is one thing; its merit or demerit is another," and he argues that several past writers have wrongly linked law with morality. Blackstone argued that human laws are invalid if they conflict with divine law. Grotius links international laws with natural law. Roman law links jurisprudence with justice. Mansfield grounds legally-binding promises upon moral obligation. In all these cases, Austin argues that the writers are in conflict with the fundamental concept of law, and that linking law with differing conceptions of morality makes laws arbitrary.

TERMINOLOGY (from Lectures on Jurisprudence)

Three Types of Laws: Divine-Natural Law, Positive Law, Positive Morality

Laws comprised by these three capital classes I mark with the following names.

I name laws of the first class the law or laws of God, or the Divine law or laws [i.e., natural laws].

For various reasons which I shall produce immediately, I name laws of the second class positive law, or positive laws.

For the same reasons, I name laws of the third class positive morality, rules of positive morality, or positive moral rules.

My reasons for using the two expressions "positive law" and "positive morality" are the following.

There are two capital classes of human laws. The first comprises the laws (properly so called) which are set by men as political superiors, or by men, as private persons, in pursuance of legal rights. The second comprises the [moral] laws (proper and improper) which belong to the two species mentioned on the preceding page [i.e., moral laws disconnected from legal rights, and moral laws that are mere opinions regarding human conduct].

As merely distinguished from the second, the first of those capital classes might be named simply law. As merely distinguished from the first, the second of those capital classes might be named simply morality. But both must be distinguished from the law of God: and, for the purpose of distinguishing both from the law of God, we must qualify the names law and morality. Accordingly, I style the first of those capital classes "positive law" and I style the second of those capital classes "positive morality." By the common epithet positive, I denote that both classes flow from human sources. By the distinctive names law and morality, I denote the difference between the human sources from which the two classes respectively emanate.

Strictly speaking, every law properly so called is a positive law. For it is put or set by its individual or collective author, or it exists by the position or institution of its individual or collective author.

But, as opposed to the law of nature (meaning the law of God), human law of the first of those capital classes is styled by writers on jurisprudence "positive law." This application of the expression "positive law" was manifestly made for the purpose of obviating confusion; confusion of human law of the first of those capital classes with that Divine law which is the measure or test of human [law].

And, in order to obviate similar confusion, I apply the expression "positive morality" to human law of the second capital class. For the name morality, when standing unqualified or alone, may signify the law set by God, or human law of that second capital class. If you say that an act or omission violates morality, you speak ambiguously. You may mean that it violates the law which I style "positive morality," or that it violates the Divine law which is the measure or test of the former.

Morality as Tested by Divine Law vs. Morality as Merely Practiced

Again: The human laws or rules which I style "positive morality" I mark with that expression for the following additional reason.

I have said that the name morality, when standing unqualified or alone, may signify positive morality, or may signify the law of God. But the name morality, when standing unqualified or alone, is perplexed with a further ambiguity. It may import indifferently either of the two following senses. -- 1. The name morality, when standing unqualified or alone, may signify positive morality which is good or worthy of approbation, or positive morality as it would be if it were good or worthy of approbation. In other words, the name morality, when standing unqualified or alone, may signify positive morality which agrees with its [Divine law] measure or test, or positive morality as it would be if it agreed with its [Divine law] measure or test. 2. The name morality, when standing unqualified or alone, may signify the human laws, which I style positive morality, as considered without regard to their goodness or badness. For example, such laws of the class as are peculiar to a given age, or such laws of the class as are peculiar to a given nation, we style the morality of that given age or nation, whether we think them good or deem them bad. Or, in case we mean to intimate that we approve or disapprove of them, we name them the morality of that given age or nation, and we qualify that name with the epithet good or bad.

Now, by the name "positive morality," I mean the human laws which I mark with that expression, as considered without regard to their goodness or badness [i.e., in the second sense above]. Whether human laws be worthy of praise or blame, or whether they accord or not with their measure or test, they are "rules of positive morality," in the sense which I give to the expression, if they belong to either of the two species lastly mentioned on p. 170. But, in consequence of that ambiguity which I have now attempted to explain, I could hardly express my meaning with passable distinctness by the unqualified name morality. . . .

Three Elements of a Law: Command, Punishment, Duty

In my first lecture, I endeavored to resolve a law (taken with largest signification which can be given to the term properly) into the necessary or essential elements of which it is composed.

Now those essentials of a law proper, together with certain consequences which those essentials import, may be stated briefly in the following manner. -- 1. Laws properly so called are a species of commands. But, being a command, every law properly so called flows from a determinate source, or emanates from a determinate author. In other words, the author from whom it proceeds is a determinate rational being, or a determinate body or aggregate of rational beings. For whenever a command is expressed or intimated, one party signifies a wish that another shall do or forbear: and the latter is obnoxious to an evil which the former intends to inflict in case the wish be disregarded.

But every signification of a wish made by a single individual, or made by a body of individuals as a body or collective whole, supposes that the individual or body is certain or determinate.

And every intention or purpose held by a single individual, or held by a body of individuals as a body or collective whole, involves the same supposition. 2. Every sanction properly so called is an eventual evil [i.e., punishment] annexed to a command. Any eventual evil may operate as a motive to conduct: but, unless the conduct be commanded and the evil be annexed to the command purposely to enforce obedience, the evil is not a sanction in the proper acceptation of the term. 3. Every duty properly so called supposes a command by which it is created. For every sanction properly so called is an eventual evil annexed to a command. And duty properly so called is obnoxiousness to evils of the kind.

Now it follows from these premises, that the laws of God, and positive laws, are laws proper, or laws properly so called.

Three Authors of Positive Law: Political Superior, Subordinate Political Ruler, Private Persons

The laws of God are laws proper, inasmuch as they are commands express or tacit, and therefore emanate from a certain source.

Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds: -- by monarchs, or sovereign bodies, as supreme political superiors: by men in a state of subjection, as subordinate political superiors: by subjects, as private persons, in pursuance of legal rights. [First,] But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign number in the character of political superior: that is to say, a direct or circuitous command of a monarch or sovereign number to a person or persons in a state of subjection to its author. And being a command (and therefore flowing from a determinate source), every positive law is a law proper, or a law properly so called. . . .

[Second,] Of laws properly so called which are set by subjects, some are set by subjects as subordinate political superiors. But of laws properly so called which are set by subjects, others are set by subjects as private persons: Meaning by "private persons," subjects not in the class of subordinate political superiors, or subordinate political superiors not considered as such. -- Laws set by subjects as subordinate political superiors, are positive laws: they are clothed with legal sanctions, and impose legal duties. They are set by sovereigns or states in the character of political superiors, although they are set by sovereigns circuitously or remotely. Although they are made directly by subject or subordinate authors, they are made through legal rights granted by sovereigns or states, and held by those subject authors as mere trustees for the granters. -- Of laws set by subjects as private persons, some are not established by sovereign or supreme authority. And these are rules of positive morality: they are not clothed with legal sanctions, nor do they oblige legally the parties to whom they are set. -- [Third,] But of laws set by subjects as private persons, others are set or established in pursuance of legal rights residing in the subject authors. And these are positive laws or laws strictly so called. Although they are made directly by subject authors, they are made in pursuance of rights granted or conferred by sovereigns in the character of political superiors: they legally oblige the parties to whom they are set, or are clothed with legal sanctions. They are commands of sovereigns as political superiors, although they are set by sovereigns circuitously or remotely [e.g., rules that a legal guardian sets for his ward, or the rules that a master gives his slave].

CONFUSING POSITIVE LAW WITH MORALITY AS IT OUGHT TO BE

The Dogma of Legal Positivism

The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. This truth, when formally announced as an abstract proposition, is so simple and glaring that it seems idle to insist upon it. But simple and glaring as it is, when enunciated in abstract expressions the enumeration of the instances in which it has been forgotten would fill a volume.

Blackstone: Human laws Invalid when in Conflict with Divine Law

Sir William Blackstone, for example, says in his "Commentaries," that the laws of God are superior in obligation to all other laws; that no human laws should be suffered to contradict them; that human laws are of no validity if contrary to them; and that all valid laws derive their force from that Divine original.

Now, he may mean that all human laws ought to conform to the Divine laws. If this be his meaning, I assent to it without hesitation. The evils which we are exposed to suffer from the hands of God as a consequence of disobeying his commands are the greatest evils to which we are obnoxious; the obligations which they impose are consequently paramount to those imposed by any other laws, and if human commands conflict with the Divine law, we ought to disobey the command which is enforced by the less powerful sanction; this is implied in the term ought: the proposition is identical, and therefore perfectly indisputable -- it is our interest to choose the smaller and more uncertain evil, in preference to the greater and surer. If this be Blackstone's meaning, I assent to his proposition, and have only to object to it, that it tells us just nothing.

Perhaps, again, he means that human lawgivers are themselves obliged by the Divine laws to fashion the laws which they impose by that ultimate standard, because if they do not, God will punish them. To this also I entirely assent: for if the index to the law of God be the principle of utility, that law embraces the whole of our voluntary actions in so far as motives applied from without are required to give them a direction conformable to the general happiness.

But the meaning of this passage of Blackstone, if it has a meaning, seems rather to be this; that no human law which conflicts with the Divine law is obligatory or binding; in other words, that no human law which conflicts with the Divine law is a law, for a law without an obligation is a contradiction in terms. I suppose this to be his meaning, because when we say of any transaction that it is invalid or void, we mean that it is not binding: as, for example, if it be a contract, we mean that the political law will not lend its sanction to enforce the contract.

Now, to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who has commanded that human lawgivers shall not prohibit acts which have no evil consequences, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice, from the creation of the world down to the present moment.

But this abuse of language is not merely puerile [i.e., childish], it is mischievous. When it is said that a law ought to be disobeyed, what is meant is that we are urged to disobey it by motives more cogent and compulsory than those by which it is itself sanctioned. If the laws of God are certain, the motives which they hold out to disobey any human command which is at variance with them are paramount to all others. But the laws of God are not always certain. All divines, at least all reasonable divines, admit that no scheme of duties perfectly complete and unambiguous was ever imparted to us by revelation. As an index to the Divine will, utility is obviously insufficient. What appears pernicious to one person may appear beneficial to another. And as for the moral sense, innate practical principles, conscience they are merely convenient cloaks for ignorance or sinister interest: they mean either that I hate the law to which I object and cannot tell why, or that I hate the law, and that the cause of my hatred is one which I find it incommodious to avow. If I say openly, I hate the law, ergo, it is not binding and ought to be disobeyed, no one will Listen to me; but by calling my hate my conscience or my moral sense, I urge the same argument in another and a more plausible form; I seem to assign a reason for my dislike, when in truth I have only given it a sounding and specious [i.e., deceptive] name. In times of civil discord the mischief of this detestable abuse of language is apparent. In quiet times the dictates of utility are fortunately so obvious that the anarchical doctrine sleeps, and men habitually admit the validity of laws which they dislike. To prove by pertinent reasons that a law is pernicious is highly useful, because such process may lead to the abrogation of the pernicious law. To incite the public to resistance by determinate views of utility may be useful, for resistance, grounded on clear and definite prospects of good, is sometimes beneficial. But to proclaim generally that all laws which are pernicious or contrary to the will of God are void and not to be tolerated, is to preach anarchy, hostile and perilous as much to wise and benign rule as to stupid and galling tyranny.

Blackstone: No Valid Right to a Slave's Labor

In another passage of his "Commentaries," Blackstone enters into an argument to prove that a master cannot have a right to the labor of his slave. Had he contented himself with expressing his disapprobation, a very well-grounded one certainly, of the institution of slavery, no objection could have been made to his so expressing himself. But to dispute the existence or the possibility of the right is to talk absurdly. For in every age, and in almost every nation, the right has been given by positive law, whilst that pernicious disposition of positive law has been backed by the positive morality of the free or master classes.

Paley: Civil Liberty as Freedom from Publicly Harmful Laws

Paley's admired definition of civil liberty appears to me to be obnoxious to the very same objection; it is a definition of civil liberty as it ought to be. "Civil liberty," he says, "is the not being restrained by any law but which conduces in a greater degree to the public welfare;" [i.e., civil liberty is freedom from publicly harmful laws] and this is distinguished from natural liberty, which is the not being restrained at all. But when liberty is not exactly synonymous with right, it means, and can mean nothing else, but exemption from restraint or obligation, and is therefore altogether incompatible with law, the very idea of which implies restraint and obligation. But restraint is restraint although it be useful, and liberty is liberty though it may be pernicious. You may, if you please, call a useful restraint liberty and refuse the name liberty to exemption from restraint when restraint is for the public advantage. But by this abuse of language you throw not a ray of light upon the nature of political liberty; you only add to the ambiguity and indistinctness in which it is already involved. I shall have to define and analyze the notion of liberty hereafter, on account of its intimate connection with right, obligation, and sanction.

Grotius: Identifying Actual International Laws with Natural Laws

Grotius, Puffendorf, and the other writers on the so-called law of nations, have fallen into a similar confusion of ideas; they have confounded positive international morality, or the rules which actually obtain among civilized nations in their mutual intercourse, with their own vague conceptions of international morality as it ought to be, with that indeterminate something which they conceived it would be, if it conformed to that indeterminate something which they call the law of nature. Professor Von Martens, of Gottingen, who died only a few years ago, is actually the first of the writers on the law of nations who has seized this distinction with a firm grasp, the first who has distinguished the rules which ought to be received in the intercourse of nations, or which would be received if they conformed to an assumed standard of whatever kind, from those which are so received, endeavor to collect from the practice of civilized communities what are the rules actually recognized and acted upon by them, and gave to these rules the name of positive international law.

CONFUSING POSITIVE LAW WITH POSITIVE MORALITY

Roman Law: Wrongly Identifies Jurisprudence with Knowledge of Justice

I have given several instances in which law and morality as they ought to be are confounded with the law and morality which actually exist. I shall next mention some examples in which positive law is confounded with positive morality, and both with the science of legislation and deontology [i.e., morality].

Those who know the writings of the Roman lawyers only by hearsay are accustomed to admire their philosophy. Now this, in my estimation, is the only part of their writings which deserves contempt. Their extraordinary merit is evinced not in general speculation, but as expositors of the Roman law. They have seized its general principles with great clearness and penetration, have applied these principles with admirable logic to the explanation of details, and have thus reduced this positive system of law to a compact and coherent whole. But the philosophy which they borrowed from the Greeks, or which, after the examples of the Greeks, they themselves fashioned, is naught. Their attempts to define jurisprudence and to determine the province of the jurisconsult are absolutely pitiable, and it is hardly conceivable how men of such admirable discernment should have displayed such contemptible imbecility.

At the commencement of the digest is a passage attempting to define jurisprudence. I shall first present you with this passage in a free translation, and afterwards in the original. "Jurisprudence," says this definition, "is the knowledge of things divine and human; the science which teaches men to discern the just from the unjust." In the excerpt from Ulpian, which is placed at the beginning of the Digest, it is attempted to define the office or province of the jurisconsult. "Law," says the passage, "derives its name from justice, and is the science or skill in the good and the equitable. Law being the creature of justice, we the jurisconsults may be considered as her priests, for justice is the goddess whom we worship, and to whose service we are devoted. Justice and equity are our vocation; we teach men to know the difference between the just and the unjust, the lawful and the unlawful; we strive to reclaim them from vice, not only by the terrors of punishment, but also by the blandishment of rewards; herein, unless we flatter ourselves, aspiring to sound and real philosophy, and not like some whom we could mention, contenting ourselves with vain and empty pretension."

Were I to present you with all the criticisms which these two passages suggest, I should detain you a full hour. I shall content myself with one observation on the scope and purpose of them both. That is, that they affect to define jurisprudence, or what comes exactly to the same thing, the office or province of the jurisconsult. Now jurisprudence, if it is anything, is the science of law, or at most the science of law combined with the art of applying it; but what is here given as a definition of it, embraces not only law, but positive morality, and even the test to which both these are to be referred. It therefore comprises the science of legislation and deontology. Further, it affirms that law is the creature of justice, which is as much as to say that it is the child of its own offspring. For when by just we mean anything but to express our own approbation we mean something which accords with some given law. True, we speak of law and justice, or of law and equity, as opposed to each other, but when we do so, we mean to express mere dislike of the law, or to intimate that it conflicts with another law, the law of God, which is its standard. According to this, every pernicious law is unjust. But, in truth, law is itself the standard of justice. What deviates from any law is unjust with reference to that law, though it may be just with reference to another law of superior authority. The terms just and unjust imply a standard, and conformity to that standard and a deviation from it; else they signify mere dislike, which it would be far better to signify by a grunt or a groan than by a mischievous and detestable abuse of articulate language. But justice is commonly erected into an entity, and spoken of as a legislator, in which character it is supposed to prescribe the law, conformity to which it should denote. The veriest [i.e., greatest] dolt who is placed in a jury box, the merest old woman who happens to be raised to the bench, will talk finely of equity or justice -- the justice of the case, the equity of the case, the imperious demands of justice, the plain dictates of equity. He forgets that he is there to enforce the laws of the land, else he does not administer that justice or that equity with which alone he is immediately concerned.

Mansfield: Moral Obligation is Necessary for a Binding Promise

This is well known to have been a strong tendency of Lord Mansfield -- a strange obliquity in so great a man. I will give an instance. By the English law, a promise to give something or to do something for the benefit of another is not binding without what is called a consideration, that is, a motive assigned for the promise, which motive must be of a particular kind. Lord Mansfield, however, overruled the distinct provisions of the law by ruling that moral obligation was a sufficient consideration. Now, moral obligation is an obligation imposed by opinion, or an obligation imposed by God; that is, moral obligation is anything which we choose to call so, for the precepts of positive morality are infinitely varying, and the will of God, whether indicated by utility or by a moral sense, is equally matter of dispute. This decision of Lord Mansfield, which assumes that the judge is to enforce morality, enables the judge to enforce just whatever he pleases.

I must here observe that I am not objecting to Lord Mansfield for assuming the office of a legislator. I by no means disapprove of what Mr. Bentham has chosen to call by the disrespectful, and therefore, as I conceive, injudicious, name of judge-made law. For I consider it injudicious to call by any name indicative of disrespect what appears to me highly beneficial and even absolutely necessary. I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature. Notwithstanding my great admiration for Mr. Bentham, I cannot but think that, instead of blaming judges for having legislated, he should blame them for the timid, narrow, and piecemeal manner in which they have legislated, and for legislating under cover of vague and indeterminate phrases, such as Lord Mansfield employed in the above example, and which would be censurable in any legislator.

Source: John Austin, Lectures on Jurisprudence (1863), Lect. 5.

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HERBERT SPENCER: RESTRICTED ROLE OF GOVERNMENT

Born in Derby, England, Herbert Spencer (1820-1903) was a prolific writer in the areas of psychology, sociology, evolutionary biology and philosophy. In his early twenties he worked as a journalist and composed a series of twelve letters that were published in the radical political journal The Nonconformist in 1842-43, and printed again as a book in 1843 under the title The Proper Sphere of Government. Selections from this are presented below. The work is a clear defense of the political view that we today call libertarianism: the government's role is very minimal and should be restricted to policing powers. Spencer's arguments for the restricted role of government rest on the principle that the sole function of government is to administer justice by defending our natural rights to the protection of ourselves and our property. He thus rejects the more common position that governments exist to bring about the general good of society; this criteria, he argues, is far too broad and could include any possible action. When governments confine themselves to administering justice, there are no grounds for governments restricting free trade, imposing a national religion, assisting the needy through poor laws, waging war except in rare cases of active defense, colonizing foreign countries, creating a national education program, or legislating public health policies. In each of these cases, by having such policies, the government violates the natural rights of its citizens and thus acts unjustly. Spencer continued his attack on big government in his book Social Statics (1850) in which he deduces various human rights from the principle of equality, which is that "Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man." Among the rights are life, liberty, use of the earth, property, speech, and full rights for women. The work also includes a controversial chapter titled "The Right to Ignore the State" in which he argues that a person cannot be compelled to continue in a political arrangement without violating his rights. The government is merely an agent that is employed by people to bring about a specific advantage, and it is up to each individual to determine whether he will employ that agent.

LIMITED ROLE OF GOVERNMENT (from The Proper Sphere of Government)

Understanding the Natural Principles of Society

Things of the first importance—principles influencing all the transactions of a country—principles involving the weal or woe of nations, are very generally taken for granted by society. When a certain line of conduct, however questionable may be its policy—however momentous may be its good or evil results, has been followed by our ancestors, it usually happens that the great masses of mankind continue the same course of action, without ever putting to themselves the question—Is it right? Custom has the enviable power, of coming to conclusions upon most debatable points, without a moment's consideration—of turning propositions of a very doubtful character into axioms—and of setting aside almost self-evident truths as unworthy of consideration.

Of all subjects thus cavalierly treated, the fundamental principles of legislation, are perhaps the most important. Politicians—all members of the community who have the welfare of their fellow-men at heart, have their hopes, opinions, and wishes, centered in the actions of government. It therefore behooves them fully to understand the nature, the intention, the proper sphere of action of a government. Before forming opinions upon the best measures to be adopted by a legislative body, it is necessary that well defined views of the power of that body should be formed; that it be understood how far it can go consistently with its constitution; that it be decided what it may do and what it may not do. And yet, how few men have ever given the matter any serious consideration; how few, even of those who are interested in the affairs of society, ever put to themselves the question—Is there any boundary to the interference of government? and, if so, what is that boundary?

We hear one man proclaiming the advantages that would accrue, if all the turnpike roads in the kingdom were kept in repair by the state; another would saddle the nation with a medical establishment, and preserve the popular health by legislation; and a third party maintains that government should make railways for Ireland, at the public expense. The possibility of there being any impropriety in meddling with these things never suggests itself. Government always has exercised the liberty of universal interference, and nobody ever questioned its right to do so. Our ancestors, good people, thought it quite reasonable that the executive should have unlimited power (or probably they never troubled themselves to think about it at all); and as they made no objection, we, in our wise veneration for the "good old times," suppose that all is as it should be. Some few, however, imbued with the more healthy spirit of investigation, are not content with this simple mode of settling such questions, and would rather ground their convictions upon reason, than upon custom. To such are addressed the following considerations. . . .

Government needed for Protection, but Not for More than That

Let us, then, imagine a number of men living together without any recognized laws—without any checks upon their actions, save those imposed by their own fears of consequences—obeying nothing but the impulses of their own passions—what is the result? The weak—those who have the least strength, or the least influence—are oppressed by the more powerful: these, in their turn, experience the tyranny of men still higher in the scale; and even the most influential, are subject to the combined vengeance of those whom they have injured. Every man, therefore, soon comes to the conclusion, that his individual interest as well as that of the community at large, will best be served by entering into some common bond of protection: all agree to become amenable to the decisions of their fellows, and to obey certain general arrangements. Gradually the population increases, their disputes become more numerous, and they find that it will be more convenient to depute this arbitrative power, to one or more individuals, who shall be maintained by the rest, in consideration of their time being devoted to the business of the public. Here we have a government springing naturally out of the requirements of the community. But what are those requirements? Is the government instituted for the purpose of regulating trade—of dictating to each man where he shall buy and where he shall sell? Do the people wish to be told what religion they must believe, what forms and ceremonies they must practice, or how many times they must attend church on a Sunday? Is education the object contemplated? Do they ask instruction in the administration of their charity—to be told to whom they shall give, and how much, and in what manner they shall give it? Do they require their means of communication—their roads and railways—designed and constructed for them? Do they create a supreme power to direct their conduct in domestic affairs—to tell them at what part of the year they shall kill their oxen, and how many servings of meat they shall have at a meal? In short, do they want a government because they see that the Almighty has been so negligent in designing social mechanisms, that everything will go wrong unless they are continually interfering? No; they know, or they ought to know, that the laws of society are of such a character, that natural evils will rectify themselves; that there is in society, as in every other part of creation, that beautiful self-adjusting principle, which will keep all its elements in equilibrium; and, moreover, that as the interference of man in external nature often destroys the just balance, and produces greater evils than those to be remedied, so the attempt to regulate all the actions of a community by legislation, will entail little else but misery and confusion.

What, then, do they want a government for? Not to regulate commerce; not to educate the people; not to teach religion; not to administer charity; not to make roads and railways; but simply to defend the natural rights of man—to protect person and property—to prevent the aggressions of the powerful upon the weak—in a word, to administer justice. This is the natural, the original, office of a government. It was not intended to do less: it ought not to be allowed to do more.

Definition of Government

Philosophical politicians usually define government, as a body whose province it is, to provide for the "general good." But this practically amounts to no definition at all, if by a definition is meant a description, in which the limits of the thing described are pointed out. It is necessary to the very nature of a definition, that the words in which it is expressed should have some determinate meaning; but the expression "general good," is of such uncertain character, a thing so entirely a matter of opinion, that there is not an action that a government could perform, which might not be contended to be a fulfilment of its duties. Have not all our laws, whether really enacted for the public benefit or for party aggrandisement, been passed under the plea of promoting the "general good?" And is it probable that any government, however selfish, however tyrannical, would be so barefaced as to pass laws avowedly for any other purpose? If, then, the very term "definition," implies a something intended to mark out the boundaries of the thing defined, that cannot be a definition of the duty of a government, which will allow it to do anything and everything.

It was contended in the preceding letter, that "the administration of justice" was the sole duty of the state. Probably it will be immediately objected, that this definition is no more stringent than the other—that the word "justice" is nearly as uncertain in its signification as the expression "general good"—that one man thinks it but "justice" towards the landowner, that he should be protected from the competition of the foreign corn grower; another maintains that "justice" demands that the labourer's wages should be fixed by legislation, and that since such varied interpretations may be given to the term, the definition falls to the ground. The reply is very simple. The word is not used in its legitimate sense. "Justice" comprehends only the preservation of man's natural rights. Injustice implies a violation of those rights. No man ever thinks of demanding "justice" unless he is prepared to prove that violation; and no body of men can pretend that "justice" requires the enactment of any law, unless they can show that their natural rights would otherwise be infringed. If it be conceded that this is the proper meaning of the word, the objection is invalid, seeing that in the cases above cited, and in all similar ones, it is not applicable in this sense.

Agricultural Regulations and Protectionism

Having thus examined the exact meaning of the new definition, and having observed its harmony with the original wants of society, we may at once proceed to consider its practical applications; and, in the first few cases, it may be well, for the sake of showing the different effects of the two principles, to note, at the same time, the results of the doctrine of "general good." First, the great question of the day—the corn laws [i.e., taxes on imported grain]. Our legislators tell us that we have an enormous national debt; that we have to pay the interest of it; and that a free trade would so change the value of money, that we should not be able to raise the taxes; moreover, that were we to allow a competition, between foreign and home-grown produce, the land must be thrown out of cultivation—our agricultural population would be deprived of employment—and that great distress must be the result. These and sundry other plausible reasons, they bring forward, to show that restrictions upon the importation of corn, are necessary to the "general good." On the other hand, suppose we had free trade. Could our farmer complain that it was an infringement of his natural rights, to allow the consumers to purchase their food from any other parties whose prices were lower? Could he urge that the state was not acting justly towards him, unless it forced the manufacturer to give him a high price for that, which he could get on more advantageous terms elsewhere? No. "Justice" would demand no such interference. It is clear, therefore, that if the "administration of justice" had been recognised as the only duty of government, we should never have had any corn laws; and, as the test may be applied to all other cases of restrictions upon commerce with a similar result, it is equally evident, that upon the same assumption, we should always have had free trade.

National Religion

Again, our clergy and aristocracy maintain, that it is eminently necessary for the "general good" that we should have an established church. They would have us believe that the Christian religion is of itself powerless—that it will never spread unless nurtured by the pure and virtuous hand of the state—that the truth is too weak to make its way without the assistance of acts of parliament—and that mankind are still so universally selfish and worldly, that there is no chance of the gospel being taught, unless comfortable salaries are provided for its teachers—practically admitting, that were it not for the emoluments their own ministry would cease, and thus inadvertently confessing, that their interest, in the spiritual welfare of their fellow-creatures, is co-extensive with their pecuniary expectations. But, what says the other definition? Can it be contended, that it is unjust to the community to allow each individual to put what construction he sees best upon the scriptures? Can the man who disputes the authority of learned divines, and dares to think for himself, be charged with oppression? Can it even be maintained, that he who goes so far as to disbelieve the Christian religion altogether, is infringing the privileges of his fellow-man? No. Then it follows, that an established church is not only unnecessary to the preservation of the natural rights of man, but that inasmuch as it denies the subject the "rights of conscience," and compels him to contribute towards the spread of doctrines of which he does not approve, it is absolutely inimical to them. So that a state, in setting up a national religion, stands in the anomalous position of a transgressor of those very rights, that it was instituted to defend. It is evident, therefore, that the restrictive principle, would never have permitted the establishment of a state church.

Poor Laws

And now, let us apply the test to that much-disputed question—the poor law [i.e., welfare]. Can any individual, whose wickedness or improvidence has brought him to want, claim relief of his fellow-men as an act of justice? Can even the industrious labourer, whose distresses have not resulted from his own misconduct, complain that his natural rights are infringed, unless the legislature compels his neighbours to subscribe for his relief? Certainly not. Injustice implies a positive act of oppression, and no man or men can be charged with it, when merely maintaining a negative position. To get a clearer view of this, let us again refer to a primitive condition of society, where all start with equal advantages. One part of the community is industrious and prudent, and accumulates property; the other, idle and improvident, or in some cases, perhaps, unfortunate. Can any of the one class fairly demand relief from the other? Can even those, whose poverty is solely the result of misfortune, claim part of the produce of the industry of the others as a right? No. They may seek their commiseration; they may hope for their assistance; but they cannot take their stand upon the ground of justice. What is true of these parties, is true of their descendants; the children of the one class stand in the same relation to those of the other that existed between their parents, and there is no more claim in the fiftieth or sixtieth generation than in the first. . . .

War

It will probably be objected to the proposed theory of government, that if the administration of justice were the only duty of the state, it would evidently be out of its power to regulate our relations with other countries, to make treaties with foreign powers, to enter into any kind of international arrangement whatever, or to levy wars that might be absolutely necessary.

So much of the objection as relates to the absence of power to make treaties, may be disregarded. Commerce, or war, are nearly always, directly or indirectly, the subjects of negotiation between governments, and as free trade is presupposed by the definition, it is clear that commercial treaties would never be called for. The whole of the objection is therefore comprised in its last clause—viz., the want of power to make war. Instead of viewing such a result as an evil, we should rather hail it as one of the greatest benefits that could arise from the recognition of this principle. War has been the source of the greatest of England's burdens. . . .

"But," I am asked, "is there no such thing as a necessary war?" In theory perhaps there may be; but it is very rarely to be seen in practice. Is our war with China necessary? Is our war with Afghanistan necessary? Was our war with Syria necessary? Was our war with France necessary? Was our war with America necessary? No. In defending ourselves against an invasion, we might perhaps be said to be engaged in a necessary war, but in no other case; and England has but little to fear on that score. Improbable, however, as such an event may be, let us, for the sake of argument, imagine that we involve ourselves in a quarrel with some foreign state, which ends in their attacking us, one of two things must happen. Either we repel the attack, or we do not. Many there are, who, under such circumstances, would look for an intervention of providence; others who would trust to the principle of passive resistance. But, without sheltering under either of these, let us suppose that active defence is necessary. That defence may be conducted in two ways. Either the nation at large must provide for it independently of the state, must call together a council of war, volunteer supplies, and make all other necessary arrangements; or the government must itself, as heretofore, take the affair into its own hands. The first of these alternatives may appear impracticable; but it is questionable whether such impression does not arise from its disagreement with our preconceived notions, rather than from any reasonable conviction. The wars of savage nations have very frequently been carried on without the guidance of any fixed executive power. We have instances, too, in civilised countries, of rebellions in which successful war has been maintained in opposition to the government. How much more, then, might we expect an efficient resistance in such a highly organised social condition as our own? But admitting the impracticability of this principle—assuming that the interference of the state would be necessary in such cases, what follows? The insufficiency of the original definition, and the consequent sacrifice of the doctrines propounded? No such thing. Strange as it may seem, the admission of such a necessity is no derogation to the theory before us. The question has hitherto been considered in its application to England only, because the cases brought forward have had exclusive reference to internal policy; but, in the present instance, in which international affairs are involved, we must no longer suppose such a limited sphere of action. Some moral laws cannot receive their perfect development unless universally acknowledged; they do not agree with the present state of things, and they cannot be measured by an arbitrary standard, with which they are professedly inconsistent. To imagine one part of mankind acting upon a certain principle—to perceive that they will be obliged to infringe that principle, in their intercourse with the rest who are acting under other guidance, and thence to infer that the principle is at fault, is anything but logical. We must give the system fair play, allow it a general application; and test it in accordance with its own conditions. Suppose, then, that all nations confined the attention of their governments, to the administration of justice, aggressive war would cease; but when aggressive war ceases, defensive war becomes unnecessary. We see, therefore, that the concession that it might be requisite for the state to interfere in cases of invasion, implies no error in the definition. The exception would result, not from any inherent imperfection in the principle, but from its confined application.

Colonization

Colonisation may possibly appear to some, to be a stumbling-block in their way to the desirable conclusion, that the administration of justice is the only duty of the state. We may anticipate the question—What would the colonies do without our governance and protection? I think facts will bear me out in replying—Far better than they do with them.

The subject naturally ranges itself under three heads—the interests of the mother country, of the emigrants, and of the aborigines. First, then, the interests of the mother country.

The records of ancient nations have ever, shown that the riches of a community, do not depend upon the acquirement of new territory; our own history bears ample testimony of the same character, and our present experience in every instance confirms that testimony. The well known case of the United States may be cited as an example. Whilst that country was a colony, it was a burden to us; the expenses attending its government were far greater than the profits derived from its trade; but since it has become an independent kingdom, it has been a source of great gain. Canada stands to us in the same position that the United States once did; its distance from us is the same, its commercial advantages are greater, it has the benefit of increased civilisation, and yet, like its prototype, it does not repay the cost of its management. Hindostan may be pointed out as another illustration. The statement of the East India company's profit and loss shows that, in this case also, the balance is against us; and that our enormous oriental possessions have been an injury instead of a benefit. Yet, in spite of these and many similar instances, it is still tacitly assumed that extensive territorial property is synonymous with wealth. . . .

Secondly, the welfare of the emigrants. In considering this part of the subject, the question may arise—Has not every colonist a claim to protection from the mother country? Custom answers, "Yes." Reason says, "No." Viewed philosophically, a community is a body of men associated together for mutual defence. The members of that community are supposed to occupy a certain territory; and it may be fairly assumed that the privileges conferred are only enjoyed by those residing within that territory. The nation cannot be expected to extend protection to its members wherever they may chance to wander. It cannot be called upon to defend the rights of a citizen in whatever corner of the earth he may choose to locate himself. The natural inference is, that when a man leaves such a community he loses his membership, he forfeits his privileges, and he foregoes all claim to civil assistance. It is presumed that he duly considers, on the one hand, the benefits to be derived by his contemplated emigration, and, on the other, the evils attendant on the loss of citizenship; and that the prospective advantages of a change have the preponderence. . . .

Thirdly—the interests of the aborigines. A first glance at the bearings of the question, is sufficient to show, that the natives of colonised countries, will meet with much better treatment, at the hands of those settlers, whose emigration has been gradual and unprotected, than from those who are aided by a powerful government, and backed by a military force. In the one case, being the weaker party, the colonists are obliged to stand on their good behaviour, and are induced, through fear, to deal justly with the owners of the soil; in the other, acting upon the barbarous maxim that they have a lawful right to whatever territories they can conquer, forcible possession of the new country, is taken—a continued scene of oppression and bloodshed ensues, and the extermination of the injured race, is, in many cases, the consequence. This is no imaginary picture. Our colonial history, to our shame be it spoken, is full of the injustice and cruelty, to which the original possessors of the soil have been subjected. The extinct tribes of the North American Indians, bear witness of the fact; the gradual retreat of the natives of Australia, may be quoted in support of it; and the miserable condition of the inhabitants of the East Indies, speaks volumes, on the inhumanity attendant upon state colonisation. . . .

National Education

The question of state interference has been hitherto examined, only in those departments of its application, in which its existing effects are visible—viz., in commerce, religion, charity, war, and colonisation. In all of them that interference has been deprecated. It now remains to consider those social institutions which, though at present prospering in their original unfettered simplicity, are threatened by schemes for legislative supervision. Of these the first in importance stands—education.

It is clear that a system of national instruction is excluded by our definition. It cannot be comprehended under the administration of justice. A man can no more call upon the community to educate his children, than he can demand that it shall feed and clothe them. And he may just as fairly claim a continual supply of material food, for the satisfaction of their bodily wants, as of intellectual food, for the satisfaction of their mental ones. It will be the aim of the succeeding arguments to show the advantages of this exclusion.

. . . Another objection, stronger perhaps than any of the foregoing, still remains. The advocates of national education, if they be men who uphold freedom of conscience—if they do not desire one man to pay towards the support of privileges enjoyed only by others—in a word, if they are friends to civil and religious liberty, must necessarily assume that all members of the community, whether churchmen or dissenters, catholics or jews, tories, whigs, radicals, or republicans, will agree, one and all, to support whatever system may be finally adopted. For, if their education is to be truly a national one, it must be managed by the government, and sustained by state funds; those funds must form part of the revenue; that revenue is raised by taxation; that taxation falls upon every individual—upon him that has no children as well as upon him that has; and the result must be, that all would pay towards the maintenance of such an institution, whether they had need of it or not—whether they approved of it or otherwise. Many would, on principle, dissent from a state education, as they would from a state church. Some men would disapprove of the species of instruction—others of the mode of teaching. This man would dislike the moral training—that the intellectual. Here they would disagree upon details—and there protest against the entire system. Would it then be just, would it be reasonable, to let these men bear the burden of an institution from which they derived no benefit? Surely not. Every argument used by religious nonconformists to show the unfairness of calling upon them to uphold doctrines that they cannot countenance, or subscribe towards a ministration which they do not attend, is equally effective in proving the injustice of compelling men to assist in the maintenance of a plan of instruction inconsistent with their principles; and forcing them to pay for teaching, from which neither they nor their children derive any benefit. In the one case, the spread of religious knowledge is the object aimed at—in the other the spread of secular knowledge; and how this difference could affect the right of dissent it would be difficult to discover.

Before dismissing the subject, it may be as well to remark that, rather than see the people educated by means over which they have no control, our government would, no doubt, be very happy to take the task of instruction into their own hands; and we may pretty accurately anticipate what the tendencies of that instruction would be. Bold and independent reasoning, originality of thought, firmness in defence of principles, and all characteristics of that class, we need little expect to be encouraged. Great veneration for authority, a high respect for superiors, and implicit faith in the opinions of the great and learned, would no doubt be studiously inculcated. As for their religious education, we may predict that such virtues as meekness and humility would occupy so much attention as to leave no time for the rest; and we may be sure that the teachers would take especial care to instil into the minds of their pupils all those important and fundamental principles of our religion, such as—"Let every soul be subject to the higher powers"—"Servants be obedient to your masters"—"Learn to be content in that station of life to which it has pleased God to call you"; and other such appropriate selections. An apt illustration of the species of mental training our rulers would patronise, is afforded by the late parliamentary grant for teaching singing. Truly, it would be a lucky thing for the aristocracy, if the people could be persuaded to cultivate their voices instead of their understandings. The nation asks for cheap bread. Their rulers reply—No, we cannot give you cheap bread, because we should lose part of our rents; but, never mind, we will put aside part of your own money to give you lessons in music! We will not give you back your food, but we will teach you to sing! O generous legislators!

Public Health

"That it is the duty of the state to adopt measures for protecting the health, as well as the property, of its subjects," is the fundamental principle espoused by the Eastern Medical Association of Scotland. The majority of the medical profession hold the same opinion; a respectable portion of the public at large apparently agree with them; and, judging by the enactments that have from time to time been made, the state itself admits the truth of the doctrine. The position is a very plausible one. Some of the arguments urged on its behalf appear, at first sight, decisive. And great seem the evils that might result from the exclusion of legislative control, over matters affecting the sanitary state of the nation. The question, therefore, demands a careful consideration. . . .

A large class of officiously humane people, can never see any social evil, but they propose to pass some law for its future prevention. It never strikes them that the misfortunes of one are lessons for thousands—that the world generally learns more by its mistakes than by its successes—and that it is by the continual endeavour to avoid errors, difficulties, and dangers, that society is to become wiser. It is not for a moment denied that many individuals have been injured by druggists' prescriptions, and quack medicines—some temporarily weakened—others permanently debilitated—and a few perhaps killed outright. But, admitting this, it does not follow that it is not the wisest in the end, to let things take their own course. Such conduct may at first sight appear unkind, but when its effects upon future generations are considered, it will be found to be the reverse. . . .

There is yet another position from which this question may be considered, and one, perhaps, whence the clearest and most extended view of it can be obtained. . . . Nature provides nothing in vain. Instincts and organs are only preserved so long as they are required. Place a tribe of animals in a situation where one of their attributes is unnecessary—take away its natural exercise—diminish its activity, and you will gradually destroy its power. Successive generations will see the faculty, or instinct, or whatever it may be, become gradually weaker, and an ultimate degeneracy of the race will inevitably ensue. All this is true of man. He, in like manner, has wants, many and varied—he is provided with moral and intellectual faculties, commensurate with the complexity of his relation to the external world—his happiness essentially depends upon the activity of those faculties; and with him, as with all the rest of the creation, that activity is chiefly influenced by the requirements of his condition. The demands made upon his mental powers by his every day want—by the endeavour to overcome difficulties or avoid dangers, and by the desire to secure a comfortable provision for the decline of life, are so many natural and salutary incentives to the exercise of those powers. Imperious necessity is the grand stimulus to man's physical and mental endowments, and without it he would sink into a state of hopeless torpidity. Establish a poor law to render his forethought and self-denial unnecessary—enact a system of national education to take the care of his children off his hands—set up a national church to look after his religious wants—make laws for the preservation of his health, that he may have less occasion to look after it himself—do all this, and he may then, to a great extent, dispense with the faculties that the Almighty has given to him. Every powerful spring of action is destroyed—acuteness of intellect is not wanted—force of moral feeling is never called for—the higher powers of his mind are deprived of their natural exercise, and a gradual deterioration of character must ensue. Take away the demand for exertion, and you will ensure inactivity. Induce inactivity, and you will soon have degradation. . . .

Conclusion

In conclusion, it will be well to remind the reader, that whatever may be the result of his deliberations upon this momentous question—whether he agrees with the arguments that have been brought forward, or dissents from them—whether he acknowledges the legitimacy of the deductions, or decides against them—one thing is certain. A definition of the duty of the state there must be. It needs no argument to prove that there is a boundary beyond which no legislative control should pass—that there are individual and social requirements whose fulfilment will be better secured by moral stimulus and voluntary exertion, than by any artificial regulations—that between the two extremes of its possible power, the everything and the nothing with which a government might be entrusted, there must be some point which both principle and policy indicate as its proper limitation. This point, this boundary, it behooves every man to fix for himself; and if he disagrees with the definition, as above expressed, consistency demands that he should make one for himself. If he wishes to avoid the imputation of political empiricism, he must ascertain the nature and intent of that national organ called the legislature, ere he seeks to prescribe its actions. Before he ventures to entertain another opinion upon what a government should do, he must first settle for himself the question—What is a government for?

HUMAN RIGHTS (from Social Statics)

The Law of Equal Freedom (6.1)

Thus are we brought by several routes to the same conclusion. Whether we reason our way from those fixed conditions under which only the Divine Idea—greatest happiness, can be realized—whether we draw our inferences from man's constitution, considering him as a congeries of faculties—or whether we listen to the monitions of a certain mental agency [i.e., a moral sense], which seems to have the function of guiding us in this matter, we are alike taught as the law of right social relationships, that—Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man. Though further qualifications of the liberty of action thus asserted may be necessary, yet we have seen that in the just regulation of a community no further qualifications of it can be recognized. Such further qualifications must ever remain for private and individual application. We must therefore adopt this law of equal freedom in its entirety, as the law on which a correct system of equity is to be based.

The Rights of Life and Personal Liberty (8.1)

These are such self-evident corollaries from our first principle as scarcely to need a separate statement. If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, it is manifest that he has a claim to his life: for without it he can do nothing that he has willed; and to his personal liberty: for the withdrawal of it partially, if not wholly, restrains him from the fulfilment of his will. It is just as clear, too, that each man is forbidden to deprive his fellow of life or liberty: inasmuch as he cannot do this without breaking the law, which, in asserting his freedom, declares that he shall not infringe "the equal freedom of any other." For he who is killed or enslaved is obviously no longer equally free with his killer or enslaver.

The Right to Use the Earth (9.1, 9.10)

Given a race of beings having like claims to pursue the objects of their desires—given a world adapted to the gratification of those desires—a world into which such beings are similarly born, and it unavoidably follows that they have equal rights to the use of this world. For if each of them "has freedom to do all that he wills provided he infringes not the equal freedom of any other," then each of them is free to use the earth for the satisfaction of his wants, provided he allows all others the same liberty. And conversely, it is manifest that no one, or part of them, may use the earth in such a way as to prevent the rest from similarly using it; seeing that to do this is to assume greater freedom than the rest, and consequently to break the law. . . .

Briefly reviewing the argument, we see that the right of each man to the use of the earth, limited only by the like rights of his follow-men, is immediately deducible from the law of equal freedom. We see that the maintenance of this right necessarily forbids private property in land. On examination all existing titles to such property turn out to be invalid; those founded on reclamation inclusive. It appears that not even an equal apportionment of the earth amongst its inhabitants could generate a legitimate proprietorship. We find that if pushed to its ultimate consequences, a claim to exclusive possession of the soil involves a landowning despotism. We further find that such a claim is constantly denied by the enactments of our legislature. And we find lastly, that the theory of the co-heirship of all men to the soil, is consistent with the highest civilization; and that, however difficult it may be to embody that theory in fact, Equity sternly commands it to be done.

The Right of Property (10.2)

But, under the system of land tenure pointed out in the last chapter, as the only one that is consistent with the equal claims of all men to the use of the earth, these difficulties disappear; and the right of property obtains a legitimate foundation. We have seen that, without any infraction of the law of equal freedom, an individual may lease from society a given surface of soil, by agreeing to pay in return a stated amount of the produce he obtains from that soil. . . . He has now, to use Locke's expression,—mixed his labor with—certain products of the earth; and his claim to them is in this case valid, because he obtained the consent of society before so expending his labor; and having fulfilled the condition which society, imposed in giving that consent—the payment of rent,—society, to fulfil its part of the agreement, must acknowledge his title to that surplus which remains after the rent has been paid.—Provided you deliver to us a stated share of the produce which by cultivation you can obtain from this piece of land, we give you the exclusive use of the remainder of that produce:—these are the words of the contract; and in virtue of this contract, the tenant may equitably claim the supplementary share as his private property: may so claim it without any disobedience to the law of equal freedom; and has therefore a right so to claim it. . . .

Against Socialism and Communism (10.4)

The doctrine that all men have equal rights to the use of the earth, does indeed at first sight, seem to countenance a species of social organization, at variance with that from which the right of property has just been deduced; an organization, namely, in which the public, instead of letting out the land to individual members of their body, shall retain it in their own hands; cultivate it by joint-stock agency; and share the produce: in fact, what is usually termed Socialism or Communism.

Plausible though it may be, such a scheme is not capable of realization in strict conformity with the moral law. Of the two forms under which it may be presented, the one is ethically imperfect [i.e., joint-stock agency]; and the other, although correct in theory, is impracticable [i.e., socialism and communism]. . .

An argument fatal to the communist theory, is suggested by the fact, that a desire for property is one of the elements of our nature. Repeated allusion has been made to the admitted truth, that acquisitiveness is an unreasoning impulse quite distinct from the desires whose gratifications property secures—an impulse that is often obeyed at the expense of those desires. And if a propensity to personal acquisition be really a component of man's constitution, then that cannot be a right form of society which affords it no scope. Socialists do indeed allege that private appropriation is an abuse of this propensity, whose normal function, they say, is to impel us to accumulate for the benefit of the public at large. But in thus attempting to escape from one difficulty, they do but entangle themselves in another. Such an explanation overlooks the fact that the use and abuse of a faculty (whatever the etymology of the words may imply) differ only in degree; whereas their assumption is, that they differ in kind. Gluttony is an abuse of the desire for food . . . . So also with the instinct of accumulation. It may be quite true that its dictates have been, and still are, followed to an absurd excess; but it is also true that no change in the state of society will alter its nature and its office. To whatever extent moderated, it must still be a desire for personal acquisition. Whence it follows that a system affording opportunity for its exercise must ever be retained; which means, that the system of private property must be retained; and this presupposes a right of private property, for by right we mean that which harmonizes with the human constitution as divinely ordained.

The Right of Free Speech (14.1)

The utterance of thought being one species of action, there arises from the proposition that every man is free within specified bounds to do what he wills, the self-evident corollary, that, with the like qualification, he is free to say what he wills; or, in other words, as the rights of his fellow-men form the only legitimate restraint upon his deeds, so likewise do they form the only legitimate restraint upon his words.

There are two modes in which speech may exceed the ordained limits. It may be used for the propagation of slander, which, as we have seen in a foregoing chapter, involves a disregard of moral obligation; or it may be used in inciting and directing another to injure a third party. . . .

Liberty of speech, then, like liberty of action, may be claimed by each, to the fullest extent compatible with the equal rights of all. Exceeding the limits thus arising, it becomes immoral. Within them, no restraint of it is permissible.

The Rights of Women (16.1)

Equity knows no difference of sex. In its vocabulary the word man must be understood in a generic, and not in a specific sense. The law of equal freedom manifestly applies to the whole race—female as well as male. The same a priori reasoning which establishes that law for men (Chaps. III. and IV.), may be used with equal cogency on behalf of women. The Moral Sense, by virtue of which the masculine mind responds to that law, exists in the feminine mind as well. Hence the several rights deducible from that law must appertain equally to both sexes.

This might have been thought a self-evident truth, needing only to be stated to meet with universal acceptation. There are many, however, who either tacitly, or in so many words, express their dissent from it. . . .

Three positions only are open to us. It may be said that women have no rights at all—that their rights are not so great as those of men—or that they are equal to those of men.

Whoever maintains the first of these dogmas, that women have no rights at all, must show that the Creator intended women to be wholly at the mercy of men—their happiness, their liberties, their lives, at men's disposal; or, in other words, that they were meant to be treated as creatures of an inferior order. Few will have the hardihood to assert this.

From the second proposition, that the rights of women are not so great as those of men, there immediately arise such queries as—If they are not so great, by how much are they less? What is the exact ratio between the legitimate claims of the two sexes? How shall we tell which rights are common to both, and where those of the male exceed those of the female? Who can show us a scale that will serve for the apportionment? Or, putting the question practically, it is required to determine by some logical method, whether the Turk is justified in plunging an offending Circassian [i.e., concubine] into the Bosphorus? . . . Some principle rooted in the nature of things has to be found, by which they may be scientifically decided—decided, not on grounds of expediency, but in some definite, philosophical way. Does any one holding the doctrine that women's rights are not so great as men's, think he can find such a principle?

If not, there remains no alternative but to take up the third position—that the rights of women are equal with those of men.

The Right to Ignore the State (19.2)

As a corollary to the proposition that all institutions must be subordinated to the law of equal freedom, we cannot choose but admit the right of the citizen to adopt a condition of voluntary outlawry. If every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man, then he is free to drop connection with the State,—to relinquish its protection and to refuse paying towards its support. It is self-evident that in so behaving he in no way trenches upon the liberty of others; for his position is a passive one, and, whilst passive, he cannot become an aggressor. It is equally self-evident that he cannot be compelled to continue one of a political corporation without a breach of the moral law, seeing that citizenship involves payment of taxes; and the taking away of a man's property against his will is an infringement of his rights. Government being simply an agent employed in common by a number of individuals to secure to them certain advantages, the very nature of the connection implies that it is for each to say whether he will employ such an agent or not. If any one of them determines to ignore this mutual-safety confederation, nothing can be said, except that he loses all claim to its good offices, and exposes himself to the danger of maltreatment,—a thing he is quite at liberty to do if he likes. He cannot be coerced into political combination without a breach of the law of equal freedom; he can withdraw from it without committing any such breach; and he has therefore a right so to withdraw. . . .

Nay, indeed, have we not seen that government is essentially immoral? Is it not the offspring of evil, bearing about it all the marks of its parentage? Does it not exist because crime exists? Is it not strong, or, as we say, despotic, when crime is great? Is there not more liberty—that is, less government—as crime diminishes? And must not government cease when crime ceases, for very lack of objects on which to perform its function? Not only does magisterial power exist because of evil, but it exists by evil. Violence is employed to maintain it; and all violence involves criminality. Soldiers, policemen, and gaolers; swords, batons, and fetters,—are instruments for inflicting pain; and all infliction of pain is, in the abstract, wrong. The State employs evil weapons to subjugate evil, and is alike contaminated by the objects with which it deals and the means by which it works. Morality cannot recognise it; for morality, being simply a statement of the perfect law, can give no countenance to anything growing out of, and living by, breaches of that law. Wherefore legislative authority can never be ethical—must always be conventional merely. . . .

Source: Herbert Spencer, The Proper Sphere of Government (1843), Social Statics (1850).

STUDY QUESTIONS

Please answer all of the following questions.

[Wollstonecraft]

1. According to Wollstonecraft in the section "against Burke's conservativism", what are her main points?

2. According to Wollstonecraft, what are some of the harmful stereotypes of women?

3. According to Wollstonecraft, what is Rousseau's view of women and how does Wollstonecraft respond?

4. According to Wollstonecraft, what are some of the "coquettish arts" and what are her views of girls playing with dolls?

5. According to Wollstonecraft in the section "moral virtues and duties the same for men and women", what are her main points for this view?

6. According to Wollstonecraft in the section on "future possibilities for women" what are some of the obstacles to women and possible occupations for women?

7. In the section on women's duties and the family, what does Wollstonecraft say about women as mothers and wives?

[Austin]

8. According to Austin in the section on terminology, what are the three classes of law, two meanings of morality, three elements of law, and three kinds of authors of positive law?

9. According to Austin in the section on "the dogma of legal positivism", what are his main points?

10. What is Austin's criticism of Blackstone's view that human laws are invalid when in conflict with divine law?

11. What is Austin's criticism of Paley's view of civil liberty as non-restraint from law and Grotius's view of international law?

12. What is Austin's criticism of the Roman jurist identification of jurisprudence with knowledge of justice?

13. What is Austin's criticism of Mansfield's view that moral obligation is sufficient for a binding promise, without any special motive?

[Spencer]

14. According to Spencer, what is the purpose of government and its true definition?

15. What are Spencer's reasons for rejecting national religion and the poor laws?

16. According to Spencer, what are the three areas in which colonization fails to show benefit, and why?

17. What are Spencer's reasons for rejecting national education?

18. What are Spencer's reasons for rejecting national health care?

19. In the section on "against Socialism and Communism", what are Spencer's main arguments for this view?

20. According to Spencer, why do individuals have a right to ignore the state?

21. Short essay: please select one of the following and answer it in a minimum of 100 words.

[Wollstonecraft]

a. Explain Wollstonecraft's position on doll playing, and discuss whether she is right.

b. Explain what a woman's domestic responsibilities should be according to Wollstonecraft, and discuss whether she is right.

c. Find an online digital copy of Wollstonecraft's Vindication (e.g., at gutenberg.org) and search for the words "chaste" and "chastity". Explain her position on male and female chastity and discuss whether she is right.

d. In 1792, William Enfield wrote the following in his review of Wollstonecraft's Vindication: "It does not appear to us to be necessary, in order to enlighten the understandings of women, that we should prohibit the employment of their fingers in those useful and elegant labours of the needle, for which, from the days of Penelope, they have obtained much deserved applause." (Monthly Review, 1792, series 2, v 8). How might Wollstonecraft respond to Enfield?

e. Enfield also wrote the following: "Certain associations, now too firmly established to be easily broken, forbid us to think that women are degraded by the trivial attention which the men are inclined to pay them; or that it would be of any increase of the pleasures of society, if except where love animates the behaviour, the distinction of sex were to be confounded.'" How might Wollstonecraft respond to Enfield?

f. John Henry Colls published a poem in defense of Wollstonecraft's Vindication, which includes the following lines: "What then is Woman on the present plan? The splendid plaything of tyrannic man-- His equal, only in a wanton hour, When Lawless lust subdues the tyrant's pow'r; . . . Hence many a female, from her nuptial hour, Becomes the victim of oppressive pow'r; Bears unrepining through successive years, The painful burthen of domestic cares, Each stern injunction of her lord obeys, And all the slave's servility displays, Flies where he bids, and as he pleases lives, Nor tastes a bliss but the tyrant gives. Ask ye to whom this gloomy sketch applies? Tis modern wedlock, stript of all disguise . . . Thus Wollstonecraft, by fiery genius led, Entwines the laurel round the female's head; Contends with man for equal strength of mind, And claims the rights estrang'd from womankind; Dives to depths of science and of art, And leaves to fools the conquest of the heart" (A poetical epistle addressed to Miss Wollstonecraft, 1795). Explain Coll's view and discuss whether it accurately represents Wollstonecraft's position.

g. Mary Shelley, Wollstonecraft's daughter, wrote the following about rationality in women: "You speak of woman's intellect. We can scarcely do more than judge by ourselves. I know that, however clever I may be, there is in me a vacillation, a weakness, a want of eagle-winged resolution that appertains to my intellect as well as to my moral character, and renders me what I am, one of broken purposes, failing thoughts, and a heart all wounds. My mother had more energy of character, still she had not sufficient fire of imagination. In short, my belief is, whether there be sex in souls or not, that the sex of our material mechanism makes us quite different creatures--better, though weaker, but wanting in the higher grades of intellect" (Shelley to Gisborne, June 11, 1835). How might Wollstonecraft respond to her daughter?

[Austin]

h. Legal philosopher H.L.A. Hart makes the following famous criticism of Austin's view of positivism: "The situation [articulated by Austin] which the simple trilogy of command, sanction, and sovereign avails to describe, if you take these notions at all precisely, is like that of a gunman saying to his victim, 'give me your money or your life.' The only difference is that in the case of a legal system the gunman says it to a large number of people who are accustomed to the racket and habitually surrender to it. Law is surely not the gunman situation writ large, and legal order is surely not to be thus simply identified as compulsion." ("Positivism and the Separation of Law and Morals," 1958). How might Austin respond to Hart?

i. The essence of positive laws, for Austin, is that they are human made and are conceptually separate from their moral rightness. Can we separate law from morality as Austin suggests?

j. Austin argues that all laws are positive, including divine laws. Explain how divine laws are positive and (assuming that God exists) discuss whether divine laws are necessarily distinct from notions of moral rightness in the way that human positive laws are.

k. Examine Austin's critique of Blackstone's view that masters have no valid right to their slave's labor, and defend Blackstone against Austin's critique.

l. Examine Austin's critique of Roman jurists who identified the study of law with knowledge of justice. How might Cicero respond to this (from the perspective of Laelius or Scipio who defend natural justice in Cicero's On the Commonwealth)?

m. Legal Scholar Ronald Dworkin argues that legal positivism contains these four theses: (1) the Conventionality Thesis: valid laws arise from social conventions involving agreement among officials; (2) the Pedigree Thesis: there is a criteria that distinguishes law from non-law, independently of the law's content (such as the command of the sovereign or the decisions of a legislature); (3) the Discretion Thesis: the law consists solely of valid legal rules, not moral principles, and cases that cannot be decided by valid laws must be decided by a judge's discretion; and (4) the Obligation Thesis: a legal obligation consists solely of a person's situation falling under a valid law that requires him to do or not do something. Discuss how Austin holds to these four theses.

[Spencer]

n. Spencer rejects the idea that the government's role is to provide for society's general good. This stands in contrast to utilitarians like Bentham who maintain that the sole function of government is in fact to maximize the greatest good for the greatest number. Is Spencer right, or is Bentham? Explain.

o. Governments today commonly have economic programs to protect farmers, and the rationale is that food production is an especially unique commodity since the very survival of individuals and the country directly depends on it. This rationale appears to be grounded in the notion of general social good, which Spencer would reject. But is there any way of connecting this rationale to justice and natural rights, which Spencer might accept? Explain.

p. Arguing against national welfare programs (i.e., "poor laws") Spencer maintains that a poor person cannot claim to be treated unjustly if the government fails to provide him financial relief. Is he correct that welfare cannot reasonably be grounded in notions of justice and natural rights?

q. In his argument against public education, Spencer writes, "A man can no more call upon the community to educate his children, than he can demand that it shall feed and clothe them." Is anything in that quotation acceptable by today's standards? Explain.

r. Spencer gives an evolutionary argument for why there should be no national program of public health. What is that argument, and is it a good one? Explain.

s. In a revised edition of Social Statics, published 42 years after the first edition, Spencer removed the chapter on "The Right to Ignore the State," presumably because he changed his mind about it. What are some problems with the position that we have a right to ignore the state? For example, is something like "herd immunity" required before a community can effectively protect itself?

t. Rousseau argues that, in the social contract, individuals must accept the general will, even if they do not agree with it. Spencer argues that individuals can ignore the state when they don't agree with it. Who is right? Explain.