§4. There is, however, one mode of systematising these Rights and bringing them under one principle, which has been maintained by influential thinkers; and which, though now perhaps somewhat antiquated, is still sufficiently current to deserve careful examination. It has been held that Freedom from interference is really the whole of what human beings, originally and apart from contracts, can be strictly said to owe to each other: at any rate, that the protection of this Freedom (including the enforcement of Free Contract) is the sole proper aim of Law, i.e. of those rules of mutual behaviour which are maintained by penalties inflicted under the authority of Government. All natural Rights, on this view, may be summed up in the Right to Freedom; so that the complete and universal establishment of this Right would be the complete realisation of Justice,---the Equality at which Justice is thought to aim being interpreted as Equality of Freedom.
Now when I contemplate this as an abstract formula, though I cannot say that it is self-evident to me as the true fundamental principle of Ideal Law, I admit that it commends itself much to my mind; and I might perhaps persuade myself that it is owing to the defect of my faculty of moral (or jural) intuition that I fail to see its self-evidence. But when I endeavour to bring it into closer relation to the actual circumstances of human society, it soon comes to wear a different aspect.
In the first place, it seems obviously needful to limit the extent of its application. For it involves the negative principle that no one should be coerced for his own good alone; but no one would gravely argue that this ought to be applied to the case of children, or of idiots, or insane persons. But if so, can we know a priori that it ought to be applied to all sane adults? since the above-mentioned exceptions are commonly justified on the ground that children, etc., will manifestly be better off if they are forced to do and abstain as others think best for them; and it is, at least, not intuitively certain that the same argument does not apply to the majority of mankind in the present state of their intellectual progress. Indeed, it is often conceded by the advocates of this principle that it does not bold even in respect of adults in a low state of civilisation. But if so, what criterion can be given for its application, except that it must be applied wherever human beings are sufficiently intelligent to provide for themselves better than others would provide for them? and thus the principle would present itself not as absolute, but merely a subordinate application of the wider principle of aiming at the general happiness or well-being of mankind.
But, again, the term Freedom is ambiguous. If we interpret it strictly, as meaning Freedom of Action alone, the principle seems to allow any amount of mutual annoyance except constraint. But obviously no one would be satisfied with such Freedom as this. If, however, we include in the idea absence of pain and annoyance inflicted by others, it becomes at once evident that we cannot prohibit all such annoyances without restraining freedom of action to a degree that would be intolerable; since there is scarcely any gratification of a man's natural impulses which may not cause some annoyance to others. Hence in distinguishing the mutual annoyances that ought to be allowed from those that must be prohibited we seem forced to balance the evils of constraint against pain and loss of a different kind: while if we admit the Utilitarian criterion so far, it is difficult to maintain that annoyance to individuals is never to be permitted in order to attain any positive good result, but only to prevent more serious annoyance.
Thirdly, in order to render a social construction possible on this basis, we must assume that the light to Freedom includes the right to limit one's freedom by contract; and that such contracts, if they are really voluntary and not obtained by fraud or force, and if they do not violate the freedom of others, are to be enforced by legal penalties. But I cannot see that enforcement of Contracts is strictly included in the notion of realising Freedom; for a man seems to be most completely free when no one of his volitions is allowed to have any effect in causing the external coercion of any other. If, again, this right of limiting Freedom is itself unlimited, a man might thus freely contract himself out of freedom into slavery, so that the principle of freedom would turn out suicidal; and yet to deduce from this principle a limited right of limiting freedom by contract seems clearly impossible.
But if it be difficult to define freedom as an ideal to be realised in the merely personal relations of human beings, the difficulty is increased when we consider the relation of men to the material means of life and happiness.
For it is commonly thought that the individual's right to Freedom includes the right of appropriating material things. But, if Freedom be understood strictly, I do not see that it implies more than his right to non-interference while actually using such things as can only be used by one person at once the right to prevent others from using at any future time anything that an individual has once seized seems an interference with the free action of others beyond what is needed to secure the freedom, strictly speaking, of the appropriator. It may perhaps be said that a man, in appropriating a particular thing, does not interfere with the freedom of others, because the rest of the world is still open to them, But others may want just what he has appropriated: and they may not be able to find anything so good at all, or at least without much labour and search; for many of the instruments and materials of comfortable living are limited in quantity. This argument applies especially to property in land: and it is to be observed that, in this case, there is a further difficulty in determining how much a man is to be allowed to appropriate by `first occupation'. If it be said that a man is to be understood to occupy what he is able to use, the answer is obvious that the use of land by any individual may vary almost indefinitely in extent, while diminishing proportionally in intensity. For instance, it would surely be a paradoxical deduction from the principle of Freedom to maintain that an individual had a right to exclude others from pasturing sheep on any part of the land over which his hunting expeditions could extend. But if so can it be clear that a shepherd has such a right against one who wishes to till the land, or that one who is using the surface has a right to exclude a would-be miner? I do not see how the deduction is to be made out. Again, it may be disputed whether the right of Property, as thus derived, is to include the right of controlling the disposal of one's possessions after death. For this to most persons seems naturally bound up with ownership: yet it is paradoxical to say that we interfere with a man's freedom of action by anything that we may do after his death to what he owned during his life: and jurists have often treated this right as purely conventional and not therefore included in `natural law'.
Other difficulties might be raised: but we need not pursue them, for if Freedom be taken simply to mean that one man's actions are to be as little as possible restrained by others, it is obviously more fully realised without appropriation. And if it be said that it includes, beside this, facility and security in the gratification of desires, and that it is Freedom in this sense that we think should be equally distributed, and that this cannot be realised without appropriation; then it may be replied, that in a society where nearly all material things are already appropriated, this kind of Freedom is not and cannot be equally distributed. A man born into such a society, without inheritance, is not only fair less free than those who possess property, but he is less free than if there had been no appropriation. It may be said that, having freedom of contract, he will give his services in exchange for tile means of satisfying his wants; and that this exchange must necessarily give him more than he could have got if he had been placed in the world by himself; that, in fact, any human society always renders the part of the earth that it inhabits more capable of affording gratification of desires to each and all of its later-born members than it would otherwise be. But however true this may be as a general rule, it is obviously not so in all cases: as men are sometimes unable to sell their services at all, and often can only obtain in exchange for them an insufficient subsistence. And, even granting it to be true, it does not prove that society, by appropriation, has not interfered with the natural freedom of its poorer. members: but only that it compensates them for such interference, and that the compensation is adequate: and it must be evident that if compensation in the form of material commodities can be justly given for an encroachment on Freedom, the realisation of Freedom cannot be the one ultimate end of distributive Justice.