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When we are talking about this matter of replacing a competition with a cooperative principle, let us leave the advocate of physical force out. For police and army affairs he has a place, but for the purposes I have in mind, let us leave him out. We are talking not of putting down strikes by force, but of coming to some kind of understanding, so as to make human existence in the great centers possible and tolerable and livable for all. I do not happen to be a conscientious objector, but if anything could make me one it would be some of the reasonings of the militarists, especially when they teach that we can achieve any positive social result by force. I was brought up in this country when physical punishment in the schools was looked upon as an intellectual stimulus. Out here in a little suburb of Cleveland a school teacher once shook me till everything I looked at had a fuzzy edge, and then said the shaking was to sharpen my wits. Well, there has never been a time when my wits didn't need sharpening, but for the rest of that day at least I wondered how it sharpened my wits to put fuzzy edges on things. After every strike settled by force there is a fuzzy edge on things; and after every war there is a fuzzy edge on things; so after every appeal to force. I once learned something about the best way of fighting by watching a street scene in China. I saw two men eying each other in a rather menacing way standing with faces a few inches apart and shouting at each other. I watched them for five minutes and nothing happened, and then I asked an officer standing by what it meant. He told me that it was a Chinese fight. I said, "Why is there no striking at one another?" He replied, "The secret of a Chinese fight is that the man who strikes first indicates thereby that his ideas have given out." If you want to know why China has existed four thousand years continuously as a nation, that is partly the reason. If we are going to have a like continuous existence as a democracy in this country we have to learn to adjust ourselves one to another on a basis of discussed ideas, not necessarily to make compromise where our moral principles are involved, but to make rational adjustments. In the old frontier days men were pretty much alike. If men didn't like their neighbors, they could move on. There was land enough to the west. Now they cannot do that. If men do not like their neighbors they should try to make them better neighbors by enlisting them in a common effort at community welfare.
The next thing to consider is that the soldiers who went forth to fight in the Civil War fought for liberty, for great human ideals. One of the remarkable things about the crisis then was the driving power of an ideal itself, without regard to economic considerations. I am not particularly impressed with the people who say that physically speaking the Negro was better off under slavery than he is now. I do not believe it; but if it were true, it would not impress me, because I believe with Abraham Lincoln that, without regard to an economic condition, no man on this earth is good enough to own another man. And the ideal of human life, the value of it, is not enhanced by putting human beings up for sale. The man who buys a human being and puts himself under bonds to
treat that human being kindly, even if he should go on through life and do no unkind thing, is a sinner against human ideals and human values. The suggestion of moral enormity in the sale of the human being-that was a part of the abolitionist's force in the days before the Civil War. Now we have passed away from that particular problem. But the obligation to value the human ideals is still with us. We have to judge any kind of an institution by the kind of man it turns out and by what happens to the man connected with it.
Going back to my own boyhood days, it seemed to me that youngsters were sent to school for the sake of the school, that there was a curriculum to which to conform and rules which regulated school life, but that what happened to the youth that went to the school did not seem to enter the minds of adults. The essential question about a school is, What happens to the youth who goes to school? At the present time one of the hopeful signs is that we are making the schools suit the needs of the pupils, and the pupils themselves have something to say about what suits them. The same thing must be true in other phases of life-in industry, particularly. Human beings have certain inalienable rights, and they must not be trampled upon. We have made some progress in the past few years. I remember the time when the defenders of privilege said that property was especially sacred. Sometimes a society is to be judged by the distance the old guard has moved up. Take the conservatives of twenty-five years ago. I know a college president who is not generally looked upon as radical; he is a conservative man, trained in the old school; a very worthy man, a leader of a type of American opinion. Three or four years ago he said that in America the laboring groups have to learn that manual labor is not the only contribution made to the value of a product, and that the possessing classes may as well learn first as last that property is socially created: its value is given by society. That is a long distance from the old idea of the sanctity of property. I thank God for the fact that institutions have to be judged by their human output. Mr. Bertrand Russell would be considered as far away from the orthodox theological standpoint as anyone could well imagine, and yet he is a foremost exponent of the idea that society must be organized around the thought that human beings are ends in themselves. Take the churches of all shades of belief, upheld by centuries of tradition: Roman Catholic, Protestant, and organizations of the Jewish faith. They use different accents to pronounce the same human truths; they stand for different methods that lead to the same human ideals; and when it comes to the organization of society, they can all come together in stating their problems in human terms. I hail you as those who are contributing immensely to this country by keeping in mind these human values.
We need a type of patriotism that recognizes the virtues of those who are opposed to us. We must get away from the idea that America is to be the leader of the world in everything. She can lead in some things. The old "manifest destiny" idea ought to be modified so that each nation has the manifest destiny to do the best it can-and that without cant, without the assumption of self
righteousness, and with a desire to learn to the uttermost from other nations. After the Civil War the soldiers came home with a respect for the persons against whom they had fought which they had not had before. One of the best signs of wholesome patriotism at the present time would be recognition of the human worth of the powers defeated in the last war and an attempt to help them in every way possible.
One further illustration: I was standing on the deck of a steamer as I came across the Atlantic from service in France during the war. Submarines were about, and I was anxiously looking for them when I glanced down to a deck below and saw a man, a Belgian soldier, with a strange pallor on his face. Presently he fell over. I noticed people who tried to arouse him and who finally sent for the ship's doctor. The doctor was-well, he was not an American. He came, listened to the man's heart, tried to find his pulse, shook his head, and walked off. Then a doctor in the American army, standing by me, saw what had happened and went down. After awhile he came back and said that the man was a Belgian soldier who had fought all through the war without taking any days of leave because his family was in America and he had saved up all his time so as to go to see them. And now he was nearly dead from sheer exhaustion. The purser had said it would take $40 to move the Belgian to a room where he could have the quiet and service which alone could save him, otherwise he would not live forty-eight hours. "And your share is five dollars," the doctor added. In a few minutes the doctor had all the money; he picked the man up, carried him to a good room, took care of him, and when the ship docked the man walked off at New York as much alive as anybody and rejoicing in the prospect of soon being with his family. The ship's doctor, when the American army doctor stepped in, had begun to protest. "These Americans, they butt in. That was my patient. This American doctor! he has violated all the proprieties of the profession." I will not repeat to you just what the American doctor said to that. He is an elder of the Presbyterian church, so of course he did not take the name of the Lord in vain, but he told the ship's doctor the ultimate destination at which he might report. To a degree that is typical of the spirit of America: rough, perhaps, and not likely to pay much attention to red tape and the proprieties, but this was the fine thing about it all, there was no element of condescension, no patronizing. As soon as the sick man began to come back the doctor treated him as a friend and brother and, best of all, helped him to help himself. That is the true American spirit.
I end with the simple statement that we look to you social workers because you stand on the actual battle line, fighting against the forces of ignorance and superstition; fighting for a more closely unified society in which everyone understands every other; fighting for a better kingdom of mankind, for a world in which, no matter what the differences in creed, everyone has a chance to express himself; fighting for a world in which a man is a man always, "for a' that and a' that."
LAW AND SOCIAL PROGRESS
Hon. M. B. Rosenberry, Supreme Court of Wisconsin, Madison
Some years before his death Lord Moulton delivered an impromptu address' to the Authors' Club in London, under the title "Law and Manners." He divided human action into three great domains: first, the domain of positive law, in which our actions are prescribed by laws binding upon us, which must be obeyed and may be enforced; second, the domain of free choice, which includes all those actions as to which we claim and enjoy complete personal freedom. The third is the domain of obedience to the unenforceable, of which he said:
In that domain there is no law which inexorably determines our course of action, and yet we feel that we are not free to choose as we would. The degree of this sense of a lack of complete freedom in this domain varies in every case. It grades from a consciousness of a Duty nearly as strong as Positive Law, to a feeling that the matter is all but a question of personal choice. Some might wish to parcel out this domain into separate countries, calling one, for instance, the domain of Duty, another the domain of Public Spirit, another the domain of Good Form; but [says he] I prefer to look at it as all one domain, for it has one and the same characteristic throughoutit is the domain of Obedience to the Unenforceable.
A discussion in detail of the boundaries separating these three great domains of human action is not necessary, nor is an extended discussion of the characteristics and dominating features of these three domains. They will suggest themselves to you, and a brief reference to them will suffice.
With the domain of Positive Law we are all familiar. It includes all of the statutes, orders and rules of conduct laid down by legislatures, administrative bodies, and courts for the breach or infraction of which one may be called to account in a court. The legal rights of citizens find their basis in the positive law of the country, and it is for the protection of these rights and the redress of wrongs growing out of their violation that courts are instituted in civilized society.
The domain of free choice is not of such great extent as one might at first blush suppose. While it is not of great extent, yet it is of great importance, because, as Lord Moulton said: "It is in this domain where spontaneity, originality, and energy are born." The boundaries of this domain were greatly enlarged by the mass movement of the seventeenth and eighteenth centuries, of which the French Revolution was a dramatic as well as tragic feature. In the philosophy of that time the freedom of the individual was greatly emphasized. It was thought that if individual freedom could be attained the ills of society would be cured and the pursuit of happiness would be unimpeded. Then, as now, popular misconceptions were embodied in slogans. For instance, the compact theory of society, which is, to my mind, a totally untenable assumption, served never
• Atlantic Monthly, July, 1924.
theless to cultivate in individuals a sense of that personal freedom which they presently asserted to be their natural and inalienable right. Accompanying this sense of personal freedom was a feeling of accountability for the welfare of themselves and of the state in which they lived. Out of expanding individual freedom grew the laissez faire doctrine, which found expression in this country in the phrase, "That government governs best which governs least." The bill of rights and other constitutional guaranties were intended to conserve this domain. Its preservation and extension were the chief concern of the men who framed our constitutions.
It is no accident that the period of invention synchronized with the period of greatest individual freedom. The individual could give free rein to his imagination, especially in this country, where free land guaranteed new opportunities and a certain measure of economic freedom. The boundaries of the domain of free choice expanded to an extent not before known in human history. Here, since the middle of the nineteenth century, this domain has been constantly contracting, and with the closing of the frontier, conditions began to approximate those of the Old World. While the domain of free choice defies exact delimitation, its preservation is of the utmost importance.
Between the domain of positive law and that of free choice lies the other great domain, of obedience to the unenforceable. Here the individual is not free to do as he will. On the other hand, there are no policemen to bring him to account, nor can he be brought to account for his actions before any other court than that of public opinion. The boundaries of this domain indicate with exactitude the extent to which a nation may trust its citizens and to what extent its citizens are worthy of that trust. In this domain resides the real genius of a people. Here is developed its capacity for self-government and self-direction. Here lie also the restraints imposed by custom, tradition, and habit. In former times out of the domain of obedience to the unenforceable, by a long process of development, certain things were lifted and placed in the domain of positive law. Before that was done, however, the thing had been thoroughly tested and experience had demonstrated the wisdom of imposing legal restraint. If a people has no sense of responsibility for the public welfare then restraint must be imposed from without. Where peoples are weak and timorous, lack courage and a sense of responsibility, there we find autocratic government in all its various forms. In a society in which autocracy prevails, the domain of obedience to the unenforceable is comparatively small; everything is subordinated to the will of the ruler.
The sanctions which obtain in the domain of obedience to the unenforceable are quite as effective as those which obtain in the domain of positive law. In ordinary thought and speech we think of them as conformity to good form, good manners, and the restraints imposed by habit, custom, and tradition. In this country and with our race these sanctions and restraints are often more imperative than are the mandates of a statute. We like to think