The Sphere and Duties of Government, by Wilhelm von Humboldt

Chapter 10.

on the solicitude of the state for security with respect to actions which directly relate to the agent only. (police laws.)

We now come to accompany man throughout all the complex and manifold relations which his life in society presents, and shall begin with considering the simplest of these, or that in which (although in union with others) man remains strictly within the limits of what pertains to himself, and engages in nothing that refers immediately to the rights of others. It is to this aspect of the civil relations that the greater number of our so-called police, or preventive, laws are directed; since, however indefinite this expression may be, it still conveys to us the general and important idea, that such laws relate to the means of averting violations of the rights of others, while they have nothing to do with the violations of such right which are actually committed. Now they either operate to restrict actions whose immediate consequences are calculated to endanger the rights of others; or they impose limitations on those which usually end in transgressions of law; or, lastly, they may design to determine what is necessary for the preservation or efficient exercise of the political power itself. I must here overlook the fact that those regulations which do not relate to security, but are directed to the positive welfare of the citizen, are most commonly classed under this head; since it does not fall in with the system of division I have adopted. Now, according to the principles we have already determined, the State ought not to interfere with this, the simplest of human relations, except where there are just grounds for apprehending some violation of its own rights, or those of its citizens. And as to the rights of the State, it should here be borne in mind that such rights are granted only for the sake of protecting security. In no case, then, should prohibitive laws be enacted, when the advantage or disadvantage refers solely to the proprietor. Again, it is not enough to justify such restrictions, that an action should imply damage to another person; it must, at the same time, encroach upon his rights. But this second position requires explanation. Right, then, is never infringed on but when some one is deprived of a portion of what properly belongs to him, or of his personal freedom, without, or against, his will. But when, on the contrary, there occurs no such deprivation — when one individual does not overstep the boundary of another’s right, then, whatever disadvantage may accrue to the latter, there is no diminution of privilege. Neither is there any such diminution when the injury itself does not follow until he who sustains it also becomes active on his side, and, as it were, takes up the action, or, at least, does not oppose it as far as he can.

The application of these definitions is sufficiently evident, and I will only pause to mention one or two remarkable examples. According to these principles then it will be seen, that we cannot conceive the injustice of any actions which only create offence, and especially as regards religion and morals. He who utters or performs anything calculated to wound the conscience and moral sense of others, may indeed act immorally; but, so long as he is not chargeable with obtrusiveness in these respects, he violates no right. The others are free to cut off all intercourse with such a person, and, should circumstances render this impossible, they must submit to the unavoidable inconvenience of associating with men of uncongenial character; not forgetting, moreover, that the obnoxious party may likewise be annoyed by the display of peculiar traits in them. Even a possible exposure to more positively hurtful influences — as where the beholding this or that action, or the listening to a particular argument, was calculated to impair the virtue, or mislead the reason and sound sense of others — would not be sufficient to justify restrictions on freedom. Whoever spoke or acted thus did not therein infringe directly on the right of any other; and it was free to those who were exposed to the influence of such words and actions to counteract the evil impression on themselves with the strength of will and the principles of reason. Hence, then, however great the evils that may follow from overt immorality and seductive errors of reasoning, there still remains this excellent consequence, that in the former case the strength and resistive force of character, in the latter the spirit of toleration and diversity of view, are brought to the test, and reap benefit in the process. It is scarcely necessary to mention that in the instance I have just taken, I have confined my view to its influence on the security of the citizens. For I have already endeavoured to exhibit the relation of such actions to national morality, and to show what may or may not be allowed to the State with regard to them, on that ground.

Since, however, there are many things of which the correct decision requires a wholly special knowledge, and since, in regard to these, security might be disturbed if any one should unthinkingly or designedly turn the ignorance of others to his own advantage, the citizen should have the option, in such cases, of applying to the State for counsel. The most striking instances of what I mean — whether we consider the frequent necessity for such special knowledge, the difficulty attending just discrimination, or, lastly, the magnitude of the injury to be apprehended — are furnished by those cases in which the professional services of physicians and advocates are put in requisition. Now, in order to meet the wants and wishes of the nation in these respects, it is not only advisable but necessary that the State should examine into the qualifications of those who destine themselves for such pursuits, provided they agree to submit themselves to its tests; and, furnishing them with testimonials of fitness in case of a favourable issue of the inquiry, to acquaint the citizens that they can only confide with certainty in those who have thus been proved. Beyond this, however, the State may not proceed, or withhold from those who have declined or failed in examination the exercise of their avocation, and from the public the use of their services. Neither should it be allowed to extend such supervision to any other occupations than those which are not designed to act on the internal, but only on the external life of man, and in which he is not himself required to co-operate, but only to remain passive and obedient, and where the truth or falsity of results is the only thing of importance; or, secondly, such regulations are proper in those cases where due discrimination requires the knowledge of some wholly special department, and is not attainable by the mere exercise of reason and the practical ability of judging, and further where the rarity of their occurrence renders the very seeking of advice difficult. Should the State proceed further than is prescribed by this last limitation, it falls into the danger of rendering the nation indolent, inactive, and too much inclined to repose on the knowledge and judgment of others; while, on the other hand, the very want of positive assistance invites men rather to enrich their own knowledge and experience, and knits the citizens together by a thousand intimate relations, inasmuch as they are left more exclusively dependent on each other. Should the State fail to observe the first limitation we have pointed out, that it is not to withhold a man from the free exercise of his chosen pursuit because he has not submitted himself to its tests of capability, then, besides the evils just alluded to, all those hurtful consequences will naturally follow which we exposed in detail in the beginning of this essay. It is evident then — to choose another remarkable example illustrative of our present subject — that in the case of religious teachers State regulations cannot at all be applied. For as to what points of fitness should the State examine them? In the belief of some particular dogmas? We have already fully shown that religion is in no way dependent on these. Should it ground its estimate on the degree of intellectual power in general? In the teacher of religion, whose task it is to present things to his audience in an intimate connection with their individual life, almost the sole point of importance is the relation between his reason and theirs — a consideration which already argues such an à priori decision to be impossible. Should it judge then of moral character and integrity? For these there is no other test than that which is least adapted to the political function, viz. inquiry into the previous conduct and circumstances of the candidates, etc. Lastly, regulations of this nature — even in the cases we have ourselves approved — should, in general, only be adopted when the will of the nation demands them. For, of themselves, they are not even necessary among free men, who are developed through the very circumstance of their freedom; and further, they might be constantly liable to serious abuse. As, in general, it is not my design to examine into single objects in detail, but rather to define the fundamental principles which embrace all these in their application, I shall once more briefly indicate the only point of view from which I contemplate such regulations. The State, then, is not to concern itself in any way with the positive welfare of its citizens, and hence, no more with their life or health, except where these are imperilled by the actions of others; but it is to keep a vigilant eye on their security, though only in so far as this might suffer from the attempts of the designing to turn the ignorance of others to their own advantage. Still, in such cases of deception as that to which we refer, the victim of the imposture must necessarily have been persuaded into conviction; and as in such relations the flux and reflux of different modifying influences from one party to the other precludes the application of any general rule, and as the very liability to imposition which freedom opens out tends to discipline men’s prudence and foresight, I esteem it more accordant with fundamental principles (in a theory which is necessarily removed from practical application) to confine prohibitive laws to those cases only in which actions are done without the will of another, or still more, in direct opposition to it. The general tenour of my arguments will serve to indicate the consistent treatment of other cases, should these present themselves1 .

While we have hitherto confined our attention only to the nature of those consequences, flowing from an action, which bring it under the operation of State supervision, we have yet to inquire whether the mere prospective possibility of such consequences is sufficient to justify the restriction of given actions, or whether this is only requisite where those consequences follow in the necessary course. Freedom may suffer if we adopt the former supposition; if the latter, security may be endangered. It is therefore sufficiently clear that a middle path should be pursued; but to give any general definition of this seems to me impossible. It is certain that the deliberation in such cases must be guided at once by considerations of the extent of the injury, and of the restrictions on freedom implied in the given law. But the proper estimation of these does not admit, properly speaking, of any general rule; and all calculations of probability are eminently fallacious. Theory therefore can only point out these moments of deliberation. In the reference to practice, I am of opinion that special circumstances should be chiefly regarded, and not so much the general cases; and that only when observation of the past and considerations of the present combine to represent a restriction as indispensable, should it ever be resolved on. The right of nature, when applied to the social life of a number of men, defines the boundary lines unmistakably. It condemns all actions in which, with his own fault, one man encroaches on the due province of another, and hence, includes all those cases in which the injury strictly arises from a blamable oversight, or where it is always associated with the action, or with such a degree of probability in the consequence, that the agent either perceives it or at least becomes accountable by overlooking it. In all other cases the injury proceeds from chance, and of course the agent is not bound to repair its effects. Any wider application than this, could only be gained from the tacit agreement of those living together; and this is again something positive. But that the State should rest here seems justly questionable; especially when we consider the importance of the injury to be apprehended, and the possibility of rendering the restriction imposed on freedom, only moderately hurtful to the citizens. In such a case it is clear that the right is undeniable on the part of the State, since it is to provide for security, not only in so far as the enforcement of reparation is concerned where right has really been violated, but also in adopting means for preventing such wrongs. A third person, moreover, can only decide according to external characteristics. It is therefore impossible for the State to wait to see whether the citizens will fail in taking due precautions against dangerous actions, neither can it rely on the probability of their foreseeing the injury: where circumstances seem to represent the apprehension as urgent, it must rather restrict actions in themselves harmless.

In view of these considerations, therefore, we may be justified in laying down the following principle: in order to provide for the security of its citizens, the State must prohibit or restrict such actions, referring immediately to the agents alone, as imply the infringement on others’ rights in their consequences, or encroach in these on their freedom or property without or against their will; and further, it must forbid or restrict these actions when the probability of such consequences is fairly to be apprehended — a probability in which it must necessarily consider the extent of the injury feared, and on the other hand the consequences of the restriction on freedom implied in the law contemplated. Beyond this, every limitation of personal freedom is to be condemned, as wholly foreign to the sphere of the State’s activity.

Since, according to the ideas I have unfolded, the protection of the rights of others affords the only just ground for these restrictions, the necessity for them must naturally disappear when this ground no longer exists; and hence when — for instance, in most police-regulations — the danger extends only to the circuit of the community, the village, the town, as soon as such a community expressly and unanimously demands that these restrictions should be abolished. The State must then relax its efforts, and content itself with punishing such injuries only as have occurred with an intentional or culpable violation of right. For to put an end to strifes and dissensions among the citizens is the only true interest of the State; and to the promotion of this, the will of single citizens, even though they are themselves the parties injured, should never be allowed to oppose obstacles. If we suppose a community of enlightened men — fully instructed in their truest interests, and therefore mutually well-disposed and closely united together — we can easily imagine how voluntary contracts with a view to their security, would be entered into among them; contracts, for example, that this or that dangerous occupation or manufacture should be carried on only in certain places and at certain times, or even should be wholly prohibited. Agreements of this kind are infinitely to be preferred to any State arrangements. For as it is the very persons who enter into such contracts who are most conscious of their necessity, and feel directly the advantage or disadvantage accruing from them, it is clear that they will not be easily formed without an evident want of such agreements; that they will be far more rigidly observed, being voluntarily made; that however considerable the restrictions they entail, they will have a less hurtful influence on the character, being the results of spontaneous activity; and that, lastly, springing as they would from a certain spirit of benevolence and enlightenment, would still further contribute in their turn to increase and diffuse both. The best efforts of the State should therefore aim at bringing men into such a condition by means of freedom, that associations would arise with greater facility, and so supply the place of political regulations in these and manifold similar instances.

I have not made any mention here of such laws as impose positive duties on the citizens, or the sacrifice or performance of anything either for the State or for each other, though there are such laws everywhere among us. But, apart from that application of his powers which every citizen, where it is necessary, owes to the State (concerning which I shall have to speak hereafter), I do not esteem it good that the State should compel any one to do anything to gratify the wish or further the interests of another, even though he should receive the amplest compensation. For as everything and every pursuit, from the infinite diversity of human dispositions and desires, confers on each such various and inestimable benefits, and as these benefits may likewise vary infinitely in interest, importance, and necessity, the decision as to which good of the one, and which of the other, should be chosen as equivalent (though its difficulty should not deter us from it), is always attended with something harsh, and seems like passing sentence on the feelings and individuality of another. For this reason, moreover, that we cannot make any exact substitution except where the things in question are exactly of the same kind, real compensation is often utterly impossible, and can scarcely even be determined by a general rule.

In addition to these injurious consequences of the best of laws of this kind, there is always, moreover, an implied facility of possible abuse.

Further, the consideration of security (which alone rightly prescribes the sphere of State agency) does not render such regulations generally necessary, since every case in which this necessity occurs must be strictly exceptional: men, moreover, become more kindly disposed towards each other, and more prompt to render mutual assistance, the less they feel their self-love and sense of freedom to be wounded by an actual right of coercion on the part of others; and even though the mere humour and wholly groundless obstinacy of a man may happen to thwart an excellent undertaking, such an event is not sufficient to require that the power of the State should be thrown into the contest. In the physical world, it does not shatter every rock to pieces that juts out on the path of the wanderer. Obstacles serve to stimulate energy, and discipline forethought; none uselessly obstruct, save those which arise from human injustice; but that obstinacy is not such an impediment which may indeed be bent by the force of laws in single cases, but can only be removed by the blessed influences of freedom. These reasons, of which a brief summary is all that can be given here, seem yet sufficient to make us yield to iron necessity alone; and the State should content itself with securing to men their natural right to sacrifice the freedom and property of another in order to avert their own ruin.

Lastly, there are many police laws framed to meet actions which are performed, it is true, within the limits of the agent’s right, but that not his exclusively, it being shared in conjunction with others. In such cases, restrictions on freedom are evidently far less questionable; as in property that is common, every joint proprietor has the right of gainsay. Such common property we have, for instance, in roads, in rivers flowing through different properties, in squares and streets of towns.

1 It might appear that the cases here mentioned do not so much belong to the present chapter as to the next, since they concern actions which refer immediately to others. But I have not here considered the case in which a physician actually treats a patient, or a lawyer really undertakes a suit; but only of the choice of a means of gaining a livelihood in these respects. I only propose the question whether the State should restrict such a choice; and this choice alone does not relate directly to any one.

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