The Nature of Laws

(Written in 1914.)

Among comments on the foregoing letter there occurred again and again criticisms conveniently summed up in a sentence from an American journal: “It is not the part of Government to make men moral.”

One who is generally blamed for offering no practical remedies for the hard cases he provides is not quite so foolish as to think men are to be made into angels by law. Cut-and-dried formulÆ are hardly his little gods; and he knows well that far more important than change and reform of laws and systems is improvement in the spirit of the men who administer them. For all that, it is fatal to think that public feeling can be divorced from law in the social organism. In effect these critics say:

“It is impossible to diminish cruelty and injustice by law; any attempt to do so will only divert the cruelty or injustice banned to another form of expression.” Very well! It is therefore demonstrably needless and even ridiculous to prohibit, by law, murder, rape, and the deliberate torture of children. The murderer, the ravisher, and the torturer should be allowed to vent their cruelty in these forms, for fear that if they are not so allowed they will vent it in other forms! That is the reductio ad absurdum implicit in all such anarchistic doctrine; and how far it is really held by those who talk of the futility of passing laws against inhumanity one must leave to their own consciences. In any case, the doctrine takes no account of the real nature of laws. In a democratic society, such as ours, only public opinion, or, I would rather say, the true secret consensus of general thought, makes laws possible—I am speaking of laws against inhumanity. And laws so made are but constant reminders to every one that public opinion is against such and such a thing. Laws were made against murder and rape because public feeling against such acts became so strong that, until the laws were made, normal individuals did not rest till they had torn to pieces persons who acted in such abnormal ways. It was therefore considered more convenient that certain recognized professional persons should undertake the work of punishment. And so on through all the gamut of laws down to those against quite minor cruelties, which would not perhaps provoke individual retaliation, but which nevertheless would evoke pity and anger from a majority of those who with their own eyes saw them inflicted. Admitting that the state of public feeling toward a particular form of cruelty must always be more or less a matter of discretionary judgment for legislators, it is yet quite wrong to suppose that laws must wait until the majority of individuals in a community have openly declared a feeling of which perhaps, never having been tested personally, they are not conscious. When one urges the passing of laws to prohibit certain cruelties, one is only urging that the Legislature should give concrete expression to what it believes would be the general opinion of the country, if every man and woman therein could be taken apart—isolated, as juries are—and then actually put face to face with instances of these cruelties, so that they might judge them with the fresh and genuine feelings of unfettered men and women. One is, in fact, only urging the recording of a judgment which he believes to have been secretly delivered; asking that this secret judgment should be published in the form of law as a daily and forcible reminder that some things are “not done.”

“Still!” would say these critics who want to see no more laws made because men cannot be made humane by law, and who certainly should logically wish all our present laws removed by law (for this criticism is radical and not one of degree!). “Still!” they would say, “all you have done is to make A. and B. mechanically avoid, for example, caging wild song-birds, or docking horses’ tails; but the devil of natural man is so strong in A. and B. that they will instantly set to work to invent some other form of torture.” This is too cynical. Many of the cruelties that can be prohibited by law—that is to say, those for whose prohibition the true and secret public feeling is ripe—are cruelties that come rather from lack of thought than from a natural savagery. And it is a very large order to say that, because you stop A. and B. from “not thinking” in a certain direction, their lack of thought must result in other cruelties. True, the reason for their “lack of thought” is often that they profit by it; but, even so, it does not follow that if one channel of thoughtless and pain-provoking profit be cut off, they must necessarily seek another. As a fact, many social cruelties (such as the sweating of women, foul housing, and the harmful kind of child labour) are but dubious sources of profit in the long run; and some cruelties practised on animals (such as the wearing of certain feathers, or the docking of horses’ tails) are but the outcome of “fashion.”

To put it another way. We feel there are certain things our neighbours must not do—we even feel that we ourselves must not do them; and we pass laws to put it out of our own reach to yield to the temptation of profit or temper!

Take a person who is guiltless of thought or temptation in the matter, and show him first a number of wild song-birds in freedom, and then a bird fancier’s shop, with the same kinds of birds in their tiny cages, and ask him whether or no he thinks they ought to be kept like that. In nine cases out of ten he will say: “Poor little beggars! No.”

If then, the Legislature passes a law to penalize such caging, this law will be effective and will in time stop wild birds from being caged, because the secret feeling of the majority is really against such a practice.

But pass a law to penalize the moderate smacking of small naughty children, it will simply be disregarded, because nine out of ten people do not see any harm in either their neighbours or themselves moderately smacking their imps.

Spirit and body (that is, public feeling and the law) in the social organism are as inextricably conjoint as the spirit and body of a man—public feeling needing its proper clothing of laws, as our souls need due clothing by our bodies. And if men cannot be made kind by law, they can and are by law reminded that they must not, under temptation, do what, in cool and disinterested blood, they disapprove of their neighbours doing.

But there is another and perhaps more convincing answer to these critics. “You say it’s no good passing laws. If men are prevented from ill-treating one object, they’ll only ill-treat another.” So be it! Is that any reason for not trying to save the victims of such cruelty as we can actually see. Are we in fact to disregard the sufferer because his torturer may break out in a fresh direction. That would be as much as to say that a man watching another making his beasts go faster to market by jabbing them with a pitch-fork must pass by on the other side and do nothing to help the creatures, because if the prodder be prevented he may to-morrow cut off the tail of his horse to improve the poor brute’s value. No! Where you see cruelty, stop it! On that principle the individual and the State know where they are; the opposite is but that: “What’s the good of anyfink—why! noffink!” philosophy which, purged from all need for effort, in a world of facts, is so truly ethereal and pleasant to hold!

Some of these critics, no doubt, would carry the matter further. “We don’t think of the object,” they would say, “because the weak must go to the wall, cruelty being inherent in the struggle for existence.” Well! The sort of cruelties we have any chance of legislating against are certainly not necessary to the preservation of our existence; they are luxuries, excrescences, or that kind of short-cut which often takes one round the longer way. The struggle for sheer existence we cannot, of course, annul; it goes on, and always will. But in this age the human being is surely bound to say: “I am not only thankful that I am alive, but that all these other creatures are alive; I am not only thankful that I am without pain, but that none of these others are in pain either. I wish the world to be a decent place for them as well as for myself!”

And if these critics, returning to their mutton, say: “Quite so, sir, we desire that as much as you, perhaps more; we only tell you that you can’t make men feel like that by law!” the answer once more is: “Freely admitted! But if you do not concrete and record in laws such humane feelings as you secretly and truly have, if you do not keep the body of the social organism in time and tune with its soul, you are handicapping the growth of your humane feeling for want of signboards against temptation to profit at the expense of others; and you are passing by on the other side instead of going to the help of those you see being ill-treated.”