Social Control in a Free Society [Reprint 2016 ed.] 9781512807424

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The Benjamin Franklin Lectures

of the University of Pennsylvania SIXTH SERIES

SOCIAL CONTROL IN A FREE SOCIETY b

Loren C. Eiseley, Carl G. Hempel, Gilbert Seldes, George J. Stigler, and Willard Hurst

Edited,

with a Preface,

by

Robert E. Spiller

PHILADELPHIA UNIVERSITY OF PENNSYLVANIA PRESS

© 1960 BY T H E TRUSTEES OF T H E UNIVERSITY OF PENNSYLVANIA PUBLISHED IN GREAT BRITAIN, INDIA, AND PAKISTAN BY T H E OXFORD UNIVERSITY PRESS LONDON, BOMBAY, A N D KARACHI LIBRARY OF CONGRESS CATALOG CARD NUMBER: 60-9279

PRINTED IN T H E UNITED STATES OF AMERICA

Contents PREFACE by Robert E. Spiller T H E ETHIC OF T H E GROUP by Loren C. Eiseley SCIENCE AND HUMAN VALUES by Carl G. Hempel MASS VERSUS COTERIE CULTURE by Gilbert Seldes PROMETHEUS INCORPORATED: COERCION? by George J. Stigler

CONFORMITY OR

LAW AND T H E LIMITS OF INDIVIDUALITY by Willard Hurst The 1958 Benjamin Franklin Lecturers

University Lecture Committee

Donald Κ. Angell Thomas C. Cochran Lee C. Eagleton John M. Fogg, Jr. Gary Goldschneider Sarah Guertler James Kilcoyne Clarence Morris G. Holmes Perkins John J. Sayen Donald T . Sheehan Robert E. Spiller Elizabeth K. Spilman Mervin Verbit S. Reid Warren, Jr. Lee H . Weinstein Charles Lee—Secretary Roy F. Nichols—Chairman

SOCIAL CONTROL IN A FREE SOCIETY

Preface

T H E R E IS NO NOVELTY IN THE OBSERVATION THAT THE ADVANCES OF

technology and the complexities of modern society have m a d e it increasingly difficult in recent years for the individual to retain his individuality. Between the alienated artist and the lonely crowd there is now a confusion of ideals and values that have been substituted for the single concept of the free man in a free society. W h e n Jefferson and his friends were formulating those "unalienable rights" which were later to be added to the Constitution of the United States and thus to become the cornerstone of the new state, it took a month to travel between N e w York and Liverpool if the winds were favorable, and ideas could be conveyed only by the spoken, written, or printed word. Today months of travel have been reduced to minutes and communication is virtually instantaneous throughout the civilized world. W e have made progress, but what have we lost? There are implications in Ernest Hemingway's quotation from John Donne, "No man is an Iland," which the Reverend Mr. Donne could not have foreseen. A shrinking world with an explosive population calls for a 11

PREFACE reassessment of those values which grant to an individual the integrity of his own self. Are we perforce approaching the longcherished ideal of the brotherhood of man as traveler Khrushchev awakens memories of the Kellogg Pact, or are we being reduced to the status of assembly-line robots? Have the near-end of illiteracy and the near-approach of universal suffrage made it possible for people to be individuals, or is the exceptional person now merely hammered down more viciously into the mold of the average? "Human nature," wrote John Stuart Mill, "is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing." To this simple statement, a modern writer on the limits of liberty, David Riesman, proposes three alternatives: Human nature may be "adjusted" (i.e., an accurate reflection of its society), "anomic" (i.e., an ungoverned deviant), or "autonomous" (i.e., capable of adjustment but still free to choose whether it will be or not). Whatever the choice among the three, somewhere in the intervening century the symbol of the tree and the sense of life would seem to have been lost. The problem itself now is phrased in objective and mechanistic rather than organic and evaluative terms. The authors of The Lonely Crowd are, of course, not alone responsible for this change. Theirs is but one of a library of recent books which have been addressed to this problem in similar terms. Most of them deal with the sociological and psychological evidences of a developing mass culture; even values have been objectified and treated as facts capable of definition and measurement but not of reassessment or denial. It is unfashionable today to raise as living issues the moral questions of whether or not individuality is in itself a "good" or an "evil," whether society is advancing or regressing in ethical integrity, whether a lie is still a lie or is policy, entertainment, or personal eccentricity. The total 12

PREFACE confusion of values in the public response to recent revelations of T V quiz-show "rigging" reveals as much moral bankruptcy in the public as in the producers and performers. This book poses to an anthropologist, a philosopher of science, a publicist, an economist, and a lawyer what is essentially a moral question. It takes for granted the inescapable movement toward a mass culture in modern society and it calls for a re-examination and a re-evaluation of the ideals of individuality and conformity which are so much a part of the assumed American tradition that they can apparently be violated at will without responsible consequences. It asks vital but none-the-less embarrassing questions. T h e central problem of the symposium was phrased for the participants thus: "Evidence seems to be mounting that the complexities of modern life require so great a conformity to authority and to social pressures as to threaten the principle of freedom of the individual, so basic a factor in the American tradition. These lectures examine several aspects of contemporary American life to discover what kinds and degrees of conformity are desirable and what are dangerous to our liberties." Each lecturer, a recognized authority in his special field of learning, was then asked to relate this central problem to the specific questions which his own speciality raised. T h e anthropologist addressed himself to the basic ethical disturbances which have resulted from the cultural change, the philosopher of science to the precise areas in which the objective method of science could be expected to operate and to those in which it could not, the publicist to the effect of the mass media on communication, the economist to the correct and incorrect kinds of response to economic and social pressures, and the lawyer to an analysis of the role of law in shaping and directing of individual thought and action. Admittedly, the device of a series of lectures on aspects of a central problem is clumsy and ineffective if the aim of the series 13

PREFACE is to arrive at a common solution. The result may be that each lecturer addresses himself not only to his own aspect of the problem but in his own idiom of discourse as well. There may be disagreement not only on the answers arrived at but on the questions—even the kinds of questions—to be asked. A unity of conclusion, or even of method, can hardly be hoped for. But is there not a virtue in this diversity of minds and feelings itself as long as the intelligences involved are first class and the central concern of all is the same? Surely a community of thinking and feeling about a common problem produces a result which no one man could produce alone. It is as though the Cassandra-like challenge of Loren Eiseley were filtered through the calmer if less comprehensive statements of the intervening lectures to come at last to one man's clear and careful summingup of the ethical-legal limits of both freedom and conformity in the final essay of Willard Hurst. There is a cumulative effect in sharing with so diverse and authoritative a group of specialists their fresh thinking on a problem of such pressing and universal concern as this. The Benjamin Franklin Lectures were inaugurated in 1949 with the series on Changing Patterns in American Civilization and have been something less than annual since that time. This is the sixth volume in the series and more are planned. It is the function of a university not only to push back the frontiers of knowledge by specialized researches, but to integrate the findings of those researches into new understanding of the role of man in a universe not of his own making but now more and more of his own shaping. ROBERT E . SPILLER

14

The Ethic of the Group* Loren C. Eiseley O V E R A HUNDRED YEARS AGO A SCANDINAVIAN

PHILOSOPHER,

SÖREN

Kierkegaard, made a profound observation about the future. Kierkegaard's remark is of such great though hidden importance to our subject that I shall begin by quoting his words. " H e who fights the future," remarked the philosopher, "has a dangerous enemy. T h e future is not, it borrows its strength from the man himself, and when it has tricked him out of this, then it appears outside of him as the enemy he must meet." W e in the Western world have rushed eagerly to embrace the future—and in so doing we have provided that future with a strength it has derived from us and our endeavors. Now, stunned, puzzled, and dismayed, we try to withdraw from the embrace, not of a necessary tomorrow, but of that future which we have invited and of which, at last, we have grown perceptibly afraid. In a sudden horror we discover that the years now rushing upon us have drained our moral resources and have taken shape out of our own impotence. A t this moment, if we possess even a modicum of reflective insight we will give heed to Kierkegaard's concluding wisdom: " T h r o u g h the eternal," he enjoins us, "we can conquer the future." * This paper was also delivered as part of a lecture series given at the University of Cincinnati in the fall of 1958. The entire series, The Firmament of Time, will be published by the Atheneum Press in July of 1960. 15

SOCIAL CONTROL IN A FREE SOCIETY T h e advice is cryptic; the hour late. Moreover, we ask, what have we to do with the eternal? O u r age, we know, is littered with the wrecks of war, of outworn philosophies, of broken faiths. W e profess little but the new, and study only change. T h r e e hundred years have passed since Galileo, with the telescope, opened the enormous vista of the night. In those three centuries the phenomenal world previously explored with the unaided senses has undergone tremendous alteration

in

our

minds. A misty light so remote as to be scarcely sensed by the unaided eye has become a galaxy. Under the microscope the previously unseen has become a cosmos of both beautiful and repugnant life, while the tissues of the body have been resolved into a cellular hierarchy whose constituents mysteriously produce the human personality. Similarly, the time dimension, by our use of other sensory extensions and the close calculations made possible by our improved knowledge of the elements, has been plumbed as never before, and even its dead, forgotten life has been made to yield remarkable secrets. T h e great stage—in other words, the world stage where the Elizabethans saw us strutting and mouthing our parts—has the skeletons of dead actors under the floor and the dusty scenery of forgotten dramas abandoned in the wings. T h e idea necessarily comes home to us then with a sudden chill: W h a t if we are not playing at stage center? W h a t if the Great Spectacle has no terminus and no meaning?

What

if

there is no audience beyond the footlights, and the play, in spite of bold villains and posturing heroes, is a shabby, repeat performance in an echoing vacuity? Man is a perceptive animal. H e hates above all else to appear ridiculous. H i s explorations of reality in the course of just three hundred years have so enlarged his vision and reduced his ego that his tongue sometimes fumbles for the proper lines to speak, and he plays his part uncertainly with one dubious eye cast upon the dark beyond 16

THE ETHIC OF THE GROUP the stage lights. H e is beginning to feel alone and to hear nothing but echoes reverberating back. It will do no harm then if, in this m o m e n t of hesitation, we survey the history of our dilemma, which is also the history o f W e s t e r n scientific thought. W e need not trouble ourselves with extraneous detail, nor too much with individual names. M a n ' s efforts to understand his predicament can be encompassed

by

the simple mechanics of the theatre. W e have examined the time allowed the play, the nature of the stage, and what appears to be the nature of the plot. All else is purely incidental to this d r a m a . It may well be that, mentally structured to look within as well as without and to be influenced within by what we consider the nature of the " w i t h o u t " to be, we can see our history in no other terms than these. It is for this reason that the " w i t h o u t , " a n d our modes of apprehending it, assume so pressing an importance. N o r is it fully possible to understand the human drama, the d r a m a of the great stage, without a historical knowledge of h o w the characters have interpreted their parts in the play, and in doing so perhaps have affected the nature of the plot itself. T h i s , in a nutshell, epitomizes the role of the h u m a n m i n d in history. T h e m i n d has looked through many spectacles in the last several centuries and each time the world has appeared real, and the plot been played accordingly. Strange colorings

have

been given to reality but the colors have come mostly

from

w i t h i n . A s science extends itself, the colors, and through t h e m the nature of reality, continue to change. T h e " w i t h i n "

and

" w i t h o u t " are in some strange fashion intermingled. Perhaps, in a sense, the G r e a t Play in reality is a great m a g i c and we, the players, are a part of the illusion, m a k i n g and transforming the plot as w e g o . If the play has its magical aspect, however, there is an increasing malignancy about it. A great Russian novelist ventures to r e m a r k mildly that the human heart, rather than the state, is 17

SOCIAL CONTROL IN A FREE SOCIETY

the final abode of goodness. He is immediately denounced by his colleagues as a heretic. In the West, psychological studies are made of human "rigidity" and although there is a dispassionate scientific air about them the suggestion lingers that the "normal" man should conform, that the deviant is pathological. The television networks seek the lowest denominator which will entrance their mass audiences. There is a muted intimation that we can do without the kind of intellectual individualists who used to declaim along the edges of the American wilderness and who have left the world some highly explosive literature in the shape of Waiden and Moby Dic\. It is obvious that the American ethic—in fact, the whole of Western ethic, whether Russian or American—is undergoing change and that the change is increasingly toward conformity in exterior observance and, at the same time, toward confusion and uncertainty in deep personal relations. In our examination of this phenomenon there will emerge for us the meaning of Kierkegaard's faith in the eternal as the only way of achieving victory against the corrosive power of the human future.

2 If we examine the living universe around us, which was before man and may be after him, we find two ways in which that universe and its inhabitants differ from the world of man: first, it is an essentially stable universe; second, its inhabitants are intensely concentrated upon their environment. They respond to it totally, and without it—or rather when they relax from it—they merely sleep. They reflect their environment but they do not alter it. In Browning's words "It has them, not they it." Life, as manifested through its instincts, demands a securityguarantee from nature that is largely forthcoming. All the re18

THE ETHIC OF THE GROUP leaser mechanisms, the instinctive shorthand methods by which nature provides for organisms too simple to comprehend their environment, are based upon this guarantee. T h e inorganic world could, and does, exist in a kind of chaos, but before life can peep forth, even as a flower or a stick insect or a beetle, it has to have some kind of unofficial assurance of nature's stability, just as we have read that stability of forces in the ripples impressed in stone or in the rain marks on a long vanished beach or in the unchanging laws of light in the eye of a 400-million year old trilobite. T h e nineteenth century was amazed when it discovered these things, but wasps and migratory birds were not. They had an old contract, an old promise never broken till man began to interfere with things, that nature, in degree, is steadfast and continuous. H e r laws do not change, nor do the seasons come and go too violently. T h e ages alter but life has changed throughout the past with the slow pace of geological epochs. Calcium, iron, phosphorus could exist in the jumbled world of the inorganic without the certainties that life demands. T a k e n up into a living system, however, being

that system, they must, in a

sense, have knowledge of the future. Tomorrow's rain may be important, or tomorrow's wind or sun. Life, in contrast to the inorganic, is historic in a new way. It reflects the past but must also expect something of the future. It has nature's promise—a guarantee that has not been broken in three billion years—that the universe has this queer rationality and "expectedness" about it. "Whatever interrupts the even flow and luxurious monotony of organic life," wrote Santayana, "is odious to the primeval animal." T h i s is a true observation because, on the more simple levels of life, monotony is a necessity for survival. T h e life in pond and thicket is not equipped for the storms that shake the human world. Its small domain is frequently confined to a splinter of sunlight, or the hole under a root. W h a t life does 19

SOCIAL CONTROL IN A FREE SOCIETY

under such circumstances, how it meets the precarious future (for even here the future can be precarious), is written into its substance by the obscure mechanisms of nature. The snail recoils into his house, the dissembling caterpillar w h o does not k n o w he dissembles thrusts stiffly, like a budding twig, from his branch. T h e enemy is known, the contingency prepared for. But still the dreaming comes from below, from somewhere in the molecular substance. It is as if nature in a thousand forms played games against herself, but the games are each one known, the rules ancient and observed. It is with the coming of man that a vast hole seems to open in nature, a vast black whirlpool spinning faster and faster, consuming flesh, stones, soil, minerals, sucking down the lightning, wrenching power from the atom—until the ancient sounds of nature are drowned in the cacophony of something which is no longer nature, something instead which is loose and knocking at the world's heart, something demonic and no longer planned—escaped it may be, spewed out of nature—contending in a final giant's game against its master. Yet the coming of man was quiet enough. Even after he arrived, even after his strange retarded youth had given him the brain which opened up to him the dimensions of time and space, he had walked softly. If, as was true, he had sloughed instinct away for a new interior world of consciousness he had done something which at the same time revealed his continued need for the stability which had preserved his ancestors. Scarcely had he stepped across the border of the old instinctive world than he began to create the world of custom. H e was using reason, his new attribute, to remake in another fashion a substitute for the lost instinctive world of nature. H e was, in fact, creating another nature, a new source of stability for his conflicting erratic reason. Custom became fixed; order, the new order imposed by cultural discipline, became the "nature" of human society. Custom di20

THE ETHIC OF THE GROUP rected the vagaries of the will. A m o n g the fixed institutional bonds of society man found once more the security of the animal. H e moved in a patient renewed orbit with the seasons. H i s life was directed; the gods had ordained it so. In some parts of the world this long twilight, half in and half out of nature, has persisted into the present. Viewed over a wide domain of history this cultural edifice—though somewhat less stable than the natural world—has yet appeared a fair substitute, a structure, like nature, reasonably secure. But the security in the end was to prove an illusion. It was in the West that the whirlpool began to spin. Ironically enough, it began in the search for the earthly Paradise. T h e medieval world was limited in time. It was a stage upon which the great drama of the human Fall and Redemption was being played out. Since the position in time of the medieval culture fell late in this drama, men's thoughts were not occupied with the events of an earth destined soon to vanish. T h e ranks of society, even objects themselves were Platonic reflections from eternity. These reflections were as unalterable as the divine empyrean world behind them. L i f e was directed and fixed from above. So far as the Christian world of the West was concerned, m a n was locked in an unchanging social structure well-nigh as firm as nature. T h e earth was the center of Divine Attention. T h e ingenuity of intellectual men was turned almost exclusively upon theological problems. A s the medieval culture began to wane toward its close, men turned their curiosity upon the world around them. T h e era of the great voyages, of the breaking through barriers, had begun. Indeed there is evidence that among the motivations of those same voyagers, dreams of the recovery of the earthly Paradise were legion. T h e legendary Garden of Eden was thought to be still in existence. There were stories that in this or that far land, behind cloud banks or over mountains, the abandoned 21

SOCIAL CONTROL IN A FREE SOCIETY

Garden still survived. There were speculations that through one of those four great rivers which were supposed to flow from the Garden the way back might still be found. Perhaps the angel with the sword might still be waiting at the weed-grown gateway, warning men away; nevertheless, the idea of that haven lingered wistfully in the minds of captains in whom the beliefs of the Middle Ages had not quite perished. There was, however, another, a more symbolic road into the Garden. It was first glimpsed, and the way to its discovery charted by Francis Bacon. With that act, though he did not intend it to be so, the discoverer opened the doorway of the modern world. The paradise he sought, the dreams he dreamed, are now inextricably intermingled with the countdown on the latest model of the ICBM, or the radioactive cloud drifting down wind from a megaton explosion. Three centuries earlier, however, science had been Lord Bacon's road to the earthly Paradise. "Surely," he wrote in the Novum Organum, "it would be disgraceful if, while the regions of the material globe, that is, of the earth, of the sea, and of the stars—have been in our times laid widely open and revealed, the intellectual globe should remain shut up within the narrow limits of the old discoveries." Instead, Bacon chafed for another world than that of the restless voyagers. "I am now therefore to speak touching Hope," he rallied his audience, who believed, many of them, in a declining and decaying world. Much, if not all, that man had lost in his ejection from the earthly Paradise might, Bacon thought, be regained by application, so long as the human intellect remained unimpaired. "Trial should be made," he contended in one famous passage, "whether the commerce between the mind of men and the nature of things . . . might by any means be restored to its perfect and original condition, or, if that may not be, yet reduced to a better condition than that in which it now is." To that task of raising up the New Science, 22

T H E ETHIC OF T H E GROUP

he devoted himself as the bell ringer who "called the wits together." Bacon, however, was not blind to the dangers in his new philosophy. "Through the premature hurry of the understanding," he cautioned, "great dangers may be apprehended . . . against which evil we ought even now to prepare." Out of the same fountain, he saw clearly, could pour the instruments of beneficence or of death. Bacon's warning went unheeded. T h e struggle between those forces he envisaged continues into the modern world. W e have now reached the point where we must look deep into the whirlpool of the modern age. Whirlpool or flight, as Picard has called it, it is all one. T h e stability of nature on the planet— that old and simple promise to the living which is written in every sedimentary rock—is threatened by nature's own product, man. Not long ago, after a lecture, a young man—I hope not a forerunner of the coming race on the planet—asked me with the colossal insensitivity of the new asphalt animal, "Why can't we just eventually kill off everything and live here by ourselves with more room?" It was his solution to the problem of overpopulation. I had no response to make, for I saw suddenly that this man was in the world of the flight. For him there was no eternal, nature did not exist save as something to be crushed, and that second order of stability, the cultural world, was for him, also, ceasing to exist. If he meant what he said, pity had vanished, life was not sacred, and custom was a purely useless impediment from the past. There floated into my mind the penetrating statement of a modern critic and novelist, Wright Morris. "It is not fear of the bomb that paralyzes us," he writes, "not fear that man has no future. Rather, it is the nature of the future, not its extinction that produces such foreboding in the artist. It is a 23

SOCIAL CONTROL IN A FREE SOCIETY

numbing apprehension that such future as m a n has m a y dispense with art, with man as we now know him, and such as art has made him. T h e survival of men who are strangers to the nature of this conception is a more appalling thought than the extinction of the species." T h e r e before me stood the new race in embryo. It was I who fled. There was no means of communication sufficient to call across that roaring cataract that lay between us, and down which this youth was already figuratively passing toward some doom I did not wish to see. Man's second rock of certitude, his cultural world, that had got h i m out of bed in the morning through unnumbered millennia, that had taught him manners, how to love, and to see beauty, and how, when the time came, to die —this cultural world was now dissolving even as it grew. T h e roar of jet aircraft, the ugly ostentation of badly designed automobiles, the clatter of the supermarkets can not lend stability nor reality to the world we face. Before us is Bacon's road to Paradise after three hundred years. In the medieval world man had felt God as both exterior lord above the stars, and as immanent in the human heart. He was both outside and within, the true Hound of Heaven. All this alters as we enter modern times. Bacon's world to explore opens to infinity, but it is the world of the outside. Man's whole attention is shifted outward. Even if he looks within, it is largely with the eye of science, to examine what can be learned of the personality, or what excuses for its behavior can be found in the darker, ill-lit caverns of the brain. T h e Western scientific achievement, great though it is, has not concerned itself enough with the creation of better human beings, nor with self-discipline. It has concentrated instead, upon things, and assumed that the good life would follow. Therefore it must perpetually hunger for infinity. Outward in that infinity lies the Garden the sixteenth-century voyagers did not find. W e no 24

THE ETHIC OF THE GROUP longer call it the Garden. W e are sophisticated men. W e call it, vaguely, "progress," because that word in itself implies the endless movement of pursuit. W e have abandoned the past not [realizing that without the past the pursued future has no meaning, that it leads, as Morris has anticipated, to the world of artless, dehumanized men.

3

Some time ago there was encountered in the litter of a vacant lot, in a small American town, a fallen sign. This sign was intended to commemorate the names of local heroes who had fallen in the Second World W a r . But that war was over, and another had come in Korea. Probably the population of the entire town had turned over in the meantime. T o m and Joe and Isaac were events of the past, and the past of the modern world is short. T h e names of yesterday's heroes lay with yesterday's torn newspaper. They had served their purpose and were now forgotten. T h i s incident may serve to pinpoint the nature of what has happened or seems to be happening to our culture, to that world which science was to beautify and embellish. I do not say that science is responsible except in the sense that men are responsible, but men increasingly are the victims of what they themselves have created. T o the student of human culture, the rise of science and its dominating role in our society presents a unique phenomenon. Nothing like it occurred in antiquity, for in antiquity, nature represented the divine. It was an object of worship. It contained mysteries. It was the mother. Today the term has disappeared. It is nature we shape, nature without that softening application of the word mother

which under our control and guidance hurls

the missile on its path. There has been no age in history like 25

SOCIAL CONTROL IN A FREE SOCIETY this one, and men are increasingly brushed aside who speak o£ the possibility of another road into the future. Some time ago, in a magazine of considerable circulation, I spoke about the role of love in human society, and about some pressing human problems which I felt, rightly or wrongly, would not be solved by the penetration of space. T h e response amazed me, in some instances, by its virulence. I was denounced for interfering with the colonization of other planets, and for corrupting the young. Most pathetically of all, several people wrote me letters in which they tried to prove, largely for their own satisfaction, that love did not exist, that parents abused and murdered their children and children their parents. T h e y concentrated upon sparse incidents of pathological violence, and averted their eyes from the normal. It was all too plain that these individuals were seeking rationalizations behind which they might hide from their own responsibilities. They were in the whirlpool; that much was evident. But so are we all. In 1914 the London Times

editorialized con-

fidently that no civilized nation would bomb open cities from the air. Today there is not a civilized nation on the face of the globe that does not take this aspect of warfare for granted. Technology demands it. T h e whirlpool is never challenged. It is Kierkegaard's deadly future in which man strives, or rather ceases to strive, against himself. But crime, moral deficiencies, inadequate ethical standards— these we are prone to accept as part of the life of man. Why, in this respect, should we be regarded as unique? True, we have had Buchenwald and the Arctic slave camps, but the Romans had their circuses. It is just here, however, that the uniqueness enters in. After the passage of three hundred years from Bacon and his followers—three hundred years on the road to the earthly Paradise—there is a rising poison in the air. It crosses frontiers 26

THE ETHIC OF THE GROUP and follows the winds across the planet. It is man-made;

no

treaty of the powers has yet halted it. Y e t it is only a symbol, a token of that vast whirlpool which has caught up states and stone age peoples equally with the modern world. It is the technological revolution, and it has brought three things to man which have been impossible for h i m to do himself previously. 1. It has brought a social environment altering so rapidly with technological change that personal adjustments to it are frequently not viable. T h e individual becomes either anxious and confused, or what is worse, develops a superficial philosophy intended to carry him over the surface of life with the least possible expenditure of himself. Never before in history has it been literally possible to have been born in one age and die in another. Many of us are now living in an age quite different from the one into which we were born. T h e experience is not confined to a ride in a buggy followed, in later years, by a ride in a Cadillac. O f far greater significance are the social patterns and ethical adjustments which have followed fast upon the alterations in living habits introduced by machines. 2. Much of man's attention is directed exteriorly upon the machines which now occupy most of his waking hours. H e has less time alone than any men before him. In dictator-controlled countries he is harangued and stirred by propaganda projected upon him by machines to which he is forced to listen. In America he sits quiescent before the flickering screen in the living room while horsemen

gallop across

an American

wilderness

long

vanished in the past. In the presence of so compelling an instrument, there is little opportunity in the evenings to explore one's own thoughts or to participate in family living in the way that the man from the early part of the century remembers. F o r too many men, the exterior world 27

with

its mass-produced

day-

SOCIAL CONTROL IN A FREE SOCIETY dreams has become the conqueror. Where are the eager listeners who used to throng the lecture halls? Where are the workingmen's intellectual clubs?

T h i s world has vanished into the

whirlpool. 3. This outward projection of attention—along with the rise of a science whose powers and creations seem awe-inspiringly remote, as if above both man and nature—has come dangerously close to bringing into existence a type of man who is not human. H e no longer thinks in the old terms; he has ceased to have a conscience. H e is an instrument of power. Because his mind is directed outward upon this power torn from nature, he does not realize that the moment such power is brought into the human domain it partakes of human freedom. It is no longer safely within

nature; it has become demonic, sharing in

human ambivalence and violence. At the same time that this has occurred, the scientific worker has frequently denied personal responsibility for the way his discoveries are used. T h e scientist points to the evils of the statesmen's use of power. T h e statesmen shrug and

remind

the scientist that they are encumbered with monstrous forces that science has unleashed upon a totally unprepared public. But there are few men who are willing or able to see that no one, least of all the individual—on

either side of the iron

curtain—wishes to believe himself personally in any sense responsible for this situation. Individual conscience lies too close to home, and is archaic. It is better, we subconsciously tell ourselves, to speak of inevitable forces beyond human control. W h e n we reason thus, however, we lend powers to the whirlpool; we bring nearer the future which Kierkegaard saw, not as the necessary

future, but one just as inevitable as man has

made it so.

28

THE ETHIC OF THE GROUP

4 W e have now glimpsed, however briefly and inadequately, the fact that modern man is being swept along in a stream of things, giving rise to other things, at such a pace that no substantial ethic, no inward stability has been achieved. Such stability as survives, such human courtesies as remain, are the remnants of our past, of an older Christian order. Daily they are attenuated. In the name of the mass man, in the name of unionism, for example, we have seen violence done and rudeness justified. I will not argue the justice or injustice of particular strikes. I can only remark that the violence to which I refer has been the stupid, meaningless violence of men in the whirlpool, the rootless, nonhuman members of the age that is close to us. It is the asphalt m a n who defiantly votes the convicted labor boss back into office and who says: " H e gets me a bigger pay check. What do I care what he d o e s ? " This is a growing aspect of modern society that runs from teenage gangs to the corporation boards of amusement industries which deliberately plan the further debauchment of public taste. It is, unfortunately, the "ethic" of groups, not of society. It cannot replace personal ethic or a sense of personal responsibility for society at large. It is, in reality, group selfishness, not ethics. In the words of Max Picard, "spirit has been divided, fragmented; there is a spirit belonging to this and to that sociological group, each group having its own peculiar little spirit, exactly what one needs in the Flight, where, in order to flee more easily, one breaks the whole up into parts; and, as always happens when one separates the part from the whole . . . one magnifies the tiny part, making it ridiculously important, so that no one may notice that the tiny part is not the whole." 29

SOCIAL CONTROL IN A FREE SOCIETY All over the world this fragmentation is taking place. Impossible small nationalisms, as in Cyprus, or Algiers murder in the name of freedom. In America child gangs battle in the streets. T h e group ethic as distinct from personal ethic is faceless and obscure. It is whatever its leaders choose it to mean; it destroys the innocent and justifies the act in terms of the future. In Russia this has been done on a colossal scale. T h e future is no more than the running of the whirlpool. It is not divinely ordained. It has been wrought by man in ignorance and folly. T h a t folly has two faces and both are the product of the whirlpool. One is our secularized conception of progress; the other is the mass loss of personal ethic as distinguished from group ethic. It would be idle to deny that progress has its root in the Christian ethic, or that history viewed as progression toward a goal, as unique rather than cyclical, is also a product of Christian thinking. There is a sense in which one can say that man entered into history through Christianity, for as Berdayev somewhere observes, it is this religion par excellence,

which took God out of

nature and elevated man, with his immortal soul, above nature. T h e struggle for the realization of the human soul, the attempt to lift it beyond its base origins became, in the earlier Christian centuries, the major preoccupation of the Church. When science developed, in the hands of Bacon and his followers, the struggle for progress ceased to be an interior struggle directed toward the good life in the soul of the individual. Instead, the enormous success of the experimental method focussed attention upon the power which man could exert over nature. Now he found, through Bacon's road back to the Garden, that he could share once more in that fruit of the legendary tree. W i t h the rise of industrial science "progress" became the watchword of the age, but it was a secularized progress. It was the increasing whirlpool of goods, cannon, bodies, and yielded-up souls that an 30

THE ETHIC OF THE GROUP outward concentration upon the mastery of material nature was sure to bring. Let us admit at once that the interpretation of secular progress is two-sided. If this were not so, men would more easily recognize their dilemma. Science has brought remedies for physical pain and disease; it has opened out the far fields of the universe. Gross superstition and petty dogmatism have withered under its glance. It has supplied us with fruits unseen in nature, and, given an opportunity, has told us dramatically of the Paradise that might be ours if we could struggle free of ancient prejudices that still beset us. N o man can afford to ignore this aspect of science, no man can evade those haunting visions. It is the roar of the whirlpool, nonetheless, that breaks now most constantly upon our listening ears, increasingly instructing us upon the most important aspect of progress—that which, in secularizing the concept, we have forgotten. T h e sound of the whirlpool marks the dissolution

of man's second nature, of

custom. Ideas and heresies run like wildfire and death over the crackling static of the air. T h e y no longer pick their way slowly through the experience of generations. T a x burdens multiply and reach upward year by year as man pays for his engines of death and underwrites ever more wearily the cost of the "progress" to which this road has led him. T h e r e is no retreat. T h e great green forest that once surrounded us Americans and behind which we could seek refuge has been consumed. A n d thus, though more symbolically, has it been everywhere for man. W e have re-entered nature, not like a Greek shepherd on a hillside hearing joyfully the returning pipes of Pan, but rather as an evil and precocious animal who slinks home in the night with a few stolen powers. T h e serenity of the gods is not disturbed. T h e y know well on whose head the final lightning will fall. 31

SOCIAL CONTROL IN A FREE SOCIETY Progress secularized, progress which pursues only the next invention, progress which pulls thought out of the mind and replaces it with idle slogans is not progress at all. It is a beckoning mirage in a desert over which stagger the generations of men. Because man, each individual man among us, possesses his own soul and by that light must live or perish, there is no way by which Utopias—or the lost Garden itself—can be brought out of the future and presented to man. Neither can he go forward to such a destiny. Since in the world of time every man lives but one life, it is in himself that he must search for the secret of the Garden. With the fading of religious emphasis and the growth of the torrent, modern man is confused. T h e tumult without has obscured those voices that sometimes still cry desperately to man from somewhere within his consciousness.

5 Just one hundred years ago this autumn, Charles Darwin published the Origin of Species.

Epic of science though it is, this book

was a great blow to man. Earlier, man had seen his world displaced from the center of space; he had seen the empyrean heaven vanish to be replaced by a void filled only with the wandering dust of worlds; he had seen earthly time lengthen out until man's duration within it was only a small whisper on the sidereal clock. Finally, now, he was to be taught that his trail ran backward until in some lost era it faded into the night-world of a beast. Because it is easier to look backward than to look forward, since the past is written in the rocks, this observation, too, was added to the whirlpool. " I am an animal," man considered. It was a fair judgment, an outside judgment. So man went into the torrent, along with the steel of the first ironclads and a new slogan, "the survival of the 32

THE ETHIC OF THE GROUP fittest." There would be one more human retreat when, in the twentieth century, human values themselves would fall under scrutiny and be judged relative, shifting, and uncertain. It is the way of the torrent—everything touched by it begins to circle without direction. All is relative, there is nothing fixed, and of guilt there can, of course, remain but little. Moral responsibility has difficulty in existing consistently beside the new scientific determinism. I remarked at the beginning of this discussion that the "within," man's subjective nature, and the things that come to him from without often bear a striking relationship. Man cannot be long studied as an object without his cleverly altering his inner defenses. H e thus becomes a very difficult creature with which to deal. Let me illustrate this concretely. Not long ago, needing relief from the duties of my office, I sought refuge with my books on a campus bench. In a little while there sidled up to me a red-faced derelict whose parboiled features spoke eloquently of his particular weakness. I was resolved to resist all blandishments for a handout. "Mack," he said, " I ' m out of a job. I need help." I remained stonily indifferent. "Sir," he repeated. " U h huh," I said, unwillingly looking up from my book. " I ' m an alcoholic." " O h , " I said. There didn't seem to be anything else to say. You can't berate a man for what he's already confessed to you. " I ' m an alcoholic," he repeated. " Y o u know what that means? I'm a sick man. Not giving me alcohol is ill-treating a sick man. I'm a sick man. I'm an alcoholic. I have to have a drink. I'm telling you honest. It's a disease. I'm an alcoholic. I can't help myself." " O . K . , " I said, "you're an alcoholic." Grudgingly I contributed a quarter to his disease and his increasing degradation. But the 33

SOCIAL CONTROL IN A FREE SOCIETY words stayed in my head. " I can't help myself." L e t us face it. I n one disastrous sense, he was probably right. A t least at this point. But where had the point been reached, and w h e n had he developed this clever, neo-modern, post-Freudian

pan-handling

lingo? F r o m what judicious purloining of psychiatric or social literature had come these useful phrases? A n d he had chosen his subject well. A t a glance he had seen from m y book and spectacles that I was susceptible to this approach. I was immersed in the m o d e r n dilemma. I could have listened, gazing into his mottled face, without an emotion if he had spoken of h o m e and m o t h e r . B u t he was an alcoholic. H e k n e w it and he guessed that I m i g h t be a scientist. H e had to be helped from the outside. It was not a moral problem. H e was ill. I settled uncomfortably i n t o m y book once more, but

the

phrase stayed with m e . " I can't help myself." T h e clever reversal. T h e outside j u d g m e n t turned b a c k and put to dubious, unethical use by the m a n inside. " I can't help myself." It is the final exteriorization of man's moral predicament, of his loss of authority over himself. It is the phrase that, above all others, tortures the social scientist. In it is truth, but in it also is a dreadful, contrived folly. It is society, a genuinely sick society saying to its social scientists as it says to its engineeers and doctors: " H e l p m e . I ' m rotten with hate and ignorance that I won't give up. B u t you are the doctor; fix m e . " This, says society, is our duty. W e are social scientists. Individuals, poor blighted specimens, c a n n o t assume

such

responsibilities,

" T r u e , true," we mutter as w e read the case histories. " L i f e is dreadful, and y e t — " M a n on the inside is q u i c k to accept scientific judgments and m a k e use of them. H e is conditioned to do this. T h i s new judgment is an easy o n e ; it deadens man's concern for himself. Il makes the way into the whirlpool easier. I n spite of our boasted vigor we wait for the next age to be brought to us by Madison 34

THE ETHIC OF THE GROUP Avenue and General Motors. W e do not prepare to go there by means of the good inner life. W e wait, and in the meantime it slowly becomes easier to mistake longer cars or brighter lights for progress. And yet— Forty thousand years ago in the bleak uplands of Southwestern Asia, a man, Neanderthal man, once labelled by the Darwinian proponents of struggle as a ferocious, ancestral beast—a man whose face might cause you some slight uneasiness if he sat beside you —a man of this sort existed with a fearful body handicap in that Ice Age world. H e had lost an arm. But still he lived and was cared for. Somebody, some group of human things, in a hard, violent, and stony world, loved this maimed creature enough to cherish him. And looking so, across the centuries and the millennia, toward the animal men of the past, one can see a faint light like a patch of sunlight moving over the dark shadows on a forest

floor.

It shifts and widens, it winks out, it comes again, but it persists. It is the human spirit, the human soul, however transient, however faulty, men may claim it to be. In its coming man had no part. It merely came, that curious light, and man, the animal, sought to be something that no animal had been before. Cruel he might be, vengeful he might be, but there had also entered into his nature a curious, wistful gentleness and courage. It seemed to have little to do with survival, for such men died over and over. T h e y did not value life compared to what they saw in themselves—that strange, inner light which has come from no man knows where, and which was not made by us. It has followed us all the way from the age of ice, from the dark borders of the ancient forest into which our footprints vanish. It is in this that Kierkegaard glimpsed the eternal, the way of the heart, the way of love which is not of today, but is of the whole journey and may lead us at last to the end. T h r o u g h this, he thought, the future may be conquered. Certainly it is true. F o r man may grow 35

SOCIAL CONTROL IN A FREE SOCIETY until his creations tower to the skies, but without this light he is nothing, and his place is nothing. Even as we try to deny the light, we know that it has made us, and what we are without it seems meaningless. W e have come a long road up from the darkness, and it well may be—so brief even so is the human story—that viewed in the light of history we are still uncouth barbarians. W e are potential love animals wrenching and floundering in our larval envelopes, trying to fling off the bestial past. L i k e children or savages, we have delighted ourselves with technics. W e have thought they alone might free us. As I remarked before, once launched on this road there is no retreat. T h e whirlpool can be conquered, but this can be done only by placing it in proper perspective. A s the whirlpool grows, we must learn to cultivate that which must never be permitted to enter the whirlpool—ourselves. W e must never accept utility as the sole reason for education. If all knowledge is of the outside, if none is turned inward, if self-awareness fades into the blind acquiescence of .the mass man, then the personal responsibility by which democracy lives will fade also. Schoolrooms are not, and should not be, the place where man learns scientific techniques alone. T h e y are the place where selfhood, what has been called "the supreme instrument of knowledge" is created. Only such deep inner knowledge truly expands horizons and makes use of technology, not for power, but for human happiness. As the capacity for self-awareness is intensified, so will return that sense of personal responsibility which has been well-nigh lost in the eager yearning for aggrandizement of the asphalt man. T h e group may abstractly desire an ethic, theologians may preach an ethic, but no group ethic ever could, or should, replace the personal ethic of individual responsible men. Y e t it is just this which the Marxist countries are seeking to destroy, and which we, in a vague, good-natured indifference, are furthering by our concentration upon material enjoyment and 36

THE ETHIC OF THE GROUP our expressed contempt for the m a n who thinks, to our mind, unnecessarily. Let it be admitted that the world's problems are many and wearing, and that the whirlpool runs fast. If we are to build a stable cultural structure above that whirlpool which threatens to engulf us by changing our lives more rapidly than we can adjust our habits, it will only be by flinging over the torrent a structure taut and flexible as a spider's web, a human society deeply selfconscious and undeceived by the waters that race beneath it, a society more literate, and more appreciative of human worth than any society that has previously existed. T h a t is the sole prescription, not for survival—which is meaningless—but for a society worthy to survive. It should be, in the end, a society more interested in the cultivation of noble minds than in change. There is a story about one of our great atomic physicists—a story for whose authenticity I cannot vouch, and therefore I will not mention his name. I hope, however, with all my heart, that it is true. If it is not, then it ought to be, for it illustrates well what I mean by a growing self-awareness, a sense of responsibility about the universe. This man, one of the chief architects of the atomic bomb, so the story runs, was out wandering in the woods one day with a friend when he came upon a small tortoise. Overcome with pleasurable excitement, he took up the tortoise and started home, thinking to surprise his children with it. After a few steps he paused and surveyed the tortoise doubtfully. "What's the m a t t e r ? " asked his friend. Without responding, the great physicist slowly retraced his steps as precisely as possible, and gently set the turtle down upon the exact spot from which he had taken him up. Then he turned solemnly to his friend. "It just struck me," he said, "that perhaps, for one man, I have tampered enough with the universe." H e turned, and left the turtle to wander on its way. 37

SOCIAL CONTROL IN A FREE SOCIETY

The man who made that remark was one of the best of the modern men, and what he had devised had gone down into the whirlpool. "I have tampered enough," he said. It was not a denial of science. It was a final recognition that science is not enough for man. It is not the road back to the Garden, for that road lies through the heart of man. Only when man has recognized this fact will science become what it was for Bacon, something to speak of as "touching upon Hope." Only then will man be truly human. Bibliography Wright Morris, The Territory Ahead (New York: Harcourt, Brace and Co., 1958). Howard Rollin Patch, The Other World (Cambridge: Harvard University Press, 1950). Max Picard, The Flight from God (Chicago: Henry Regnery Co., 1951). George Santayana, Scepticism and Animal Faith (New York: Charles Scribner's Sons, 1923).

38

Science and Human Values Carl G. Hempel O U R AGE IS OFTEN CALLED AN AGE OF SCIENCE AND OF SCIENTIFIC

technology, and with good reason: the advances made during the past few centuries by the natural sciences, and more recently by the psychological and sociological disciplines, have enormously broadened our knowledge and deepened our understanding of the world we live in and of our fellow men; and the practical application of scientific insights is giving us an ever increasing measure of control over the forces of nature and the minds of men. As a result, we have grown quite accustomed, not only to the idea of a physico-chemical and biological technology based on the results of the natural sciences, but also to the concept, and indeed the practice, of a psychological and sociological technology that utilizes the theories and methods developed by behavioral research. This growth of scientific knowledge and its applications has vastly reduced the threat of some of man's oldest and most formidable scourges, among them famine and pestilence; it has raised man's material level of living, and it has put within his reach the realization of visions which even a few decades ago would have appeared utterly fantastic, such as the active exploration of interplanetary space. But in achieving these results, scientific technology has given 39

SOCIAL CONTROL IN A FREE SOCIETY rise to a host of new and profoundly disturbing problems: T h e control of nuclear fission has brought us not only the comforting prospect of a vast new reservoir of energy, but the constant threats of the atomic bomb and of serious damage, to the present and to future generations, f r o m the radioactive by-products of the fission process, even in its peaceful uses. A n d the very progress in biological and medical knowledge and technology which has so strikingly reduced infant mortality and increased man's life expectancy in large areas of our globe has significantly contributed to the threat of the "population bomb," the explosive growth of the earth's population which we are facing today, and which, again, is a matter of grave concern to all those who have the welfare of future generations at heart. Clearly, the advances of scientific technology on which we pride ourselves, and which have left their characteristic imprint on every aspect of this " a g e of science," have brought in their train many new and grave problems which urgently demand a solution. It is only natural that, in his desire to cope with these new issues, m a n should turn to science and scientific technology for further help. But a moment's reflection shows that the problems that need to be dealt with are not straightforward technological questions but intricate complexes of technological and moral issues. T a k e the case of the population bomb, for example. T o be sure, it does pose specific technological problems. One of these is the task of satisfying at least the basic material needs of a rapidly growing population by means of limited resources; another is the question of means by which population growth itself may be kept under control. Yet these technical questions do not exhaust the problem. F o r after all, even now we have at our disposal various ways of counteracting population growth; but some of these, notably contraceptive methods, have been and continue to be the subject of intense controversy on moral and religious grounds, which shows that an adequate solution of the problem 40

SCIENCE AND HUMAN VALUES at hand requires, not only knowledge of technical means of control, but also standards for an evaluation of the alternative means at our disposal; and this second requirement clearly raises moral issues. There is no need to extend the list of illustrations: any means of technical control that science makes available to us may be employed in many different ways, and a decision as to what use to make of it involves us in questions of moral valuation. And here arises a fundamental problem to which I would now like to turn: Can such valuational questions be answered by means of the objective methods of empirical science, which have been so successful in giving us reliable, and often practically applicable, knowledge of our world? Can those methods serve to establish objective criteria of right and wrong and thus to provide valid moral norms for the proper conduct of our individual and social affairs ?

2 Let us approach this question by considering first, if only in brief and sketchy outline, the way in which objective scientific knowledge is arrived at. W e may leave aside here the question of ways of discovery; i.e., the problem of how a new scientific idea arises, how a novel hypothesis or theory is first conceived; for our purposes it will suffice to consider the scientific ways of validation; i.e., the manner in which empirical science goes about examining a proposed new hypothesis and determines whether it is to be accepted or rejected. Let us use the word 'hypothesis' here to refer quite broadly to any statement or set of statements in empirical science, no matter whether it deals with some particular event or purports to set forth a general law or perhaps a more or less complex theory. 41

SOCIAL CONTROL IN A FREE SOCIETY A s is well k n o w n , empirical science decides upon the acceptability of a proposed hypothesis by means of suitable tests. Sometimes such a test m a y involve nothing more than what m i g h t be called direct observation of pertinent facts. T h i s procedure may be used, for example, in testing such statements as "It is raining outside," " A l l the marbles in this urn are blue," " T h e needle of this ammeter will stop at the scale point m a r k e d 6," and so forth. H e r e a f e w direct observations will usually suffice to decide whether the hypothesis at h a n d is to be accepted as true or to be rejected as false. B u t most of the important hypotheses in empirical science cannot be tested in this simple m a n n e r : direct observation does not suffice to decide, for example, whether to accept or to reject the hypotheses that the earth is a sphere, that hereditary characteristics are transmitted by genes, that all Indo-European languages developed f r o m one c o m m o n ancestral language, that light is an electro-magnetic w a v e process, and so forth. With hypotheses such as these, science resorts to indirect methods of test and validation. W h i l e these methods vary greatly in procedural detail, they all have the same basic structure a n d rationale: First, f r o m the hypothesis under test suitable other statements are inferred which specify certain directly observable phenomena that should

be

f o u n d to occur under specifiable circumstances if the hypothesis were true; then those inferred statements are tested directly; i.e., by checking whether the specified phenomena do in fact occur; finally, the proposed hypothesis is accepted or rejected in the light of the outcome of these tests. F o r example, the hypothesis that the earth is spherical in shape is not directly testable by observation, but it permits us to infer that a ship m o v i n g away f r o m the observer should appear to be gradually dropping below

the

horizon; that circumnavigation of the earth should be possible by following a straight course; that high-altitude photographs should show the curving of the earth's surface; that certain geo42

SCIENCE AND HUMAN VALUES detic and astronomical measurements should yield such and such specifiable results; and so forth. Inferred statements such as these can be tested m o r e or less directly; a n d as an increasing n u m b e r and variety of them are actually borne out by the results of careful observation under specified conditions, the hypothesis

be-

comes increasingly confirmed. Eventually, a hypothesis m a y be so well confirmed by the available observational evidence that it is accepted as having been established beyond reasonable doubt. Y e t no scientific hypothesis is ever proved completely a n d definitively; there is always at least the theoretical possibility that n e w evidence will be discovered w h i c h conflicts with some o f the observational statements inferred f r o m the hypothesis, a n d thus lead to its rejection. Indeed, the history o f science records m a n y instances in which a previously accepted hypothesis was subsequently abandoned in the light o f adverse evidence.

3 W e now t u r n to the question whether this m e t h o d of test and validation may be used to establish m o r a l j u d g m e n t s of value, a n d particularly j u d g m e n t s to the effect that a specified course of action is good or right or proper, or that it is better t h a n certain alternative courses of action, or that we ought to—or o u g h t not to —act in certain specified ways. B y way o f illustration, consider the view that it is good to raise children permissively a n d bad to b r i n g t h e m up in a restrictive manner. It m i g h t seem that, at least in principle, this view could be certified scientifically by appropriate empirical investigations. Suppose, for example, that careful research had established ( 1 ) that restrictive upbringing tends to generate resentment and aggression against parents a n d other persons exercising educational authority, which will then lead to guilt and anxiety and 43

SOCIAL CONTROL IN A FREE SOCIETY an eventual stunting of the initiative and the creative potentialities of the child; whereas (2) permissive upbringing avoids these consequences, makes for happier interpersonal relations, encourages resourcefulness and self-reliance, and enables the child to develop and enjoy his potentialities. These statements, especially when suitably amplified, come within the purview of scientific investigation; and though our knowledge in the matter is in fact quite limited, let us assume, for the sake of the argument, that they had actually been strongly confirmed by careful and extensive indirect tests. Would not scientific research then have objectively shown that it is indeed better to raise children in a permissive rather than in a restrictive manner? A moment's reflection shows that this is not so. What would have been established by those tests is rather a conditional statement; namely, If our children are to become happy, emotionally secure, creative individuals rather than guilt-ridden and troubled souls then it is better to raise them in a permissive than in a restrictive fashion. A statement like this represents a conditional, or instrumental, judgment of value. Generally, a conditional judgment of value states that a certain kind of action, M, is good (or that it is better than a given alternative M1) if a specified goal G is to be attained. But to say: "If goal G is to be attained, then course of action M is good" is tantamount to asserting either that, in the circumstances at hand, course of action M will definitely (or probably) lead to the attainment of G, or that failure to embark on course of action M will definitely (or probably) lead to the non-attainment of G. In other words, the conditional value judgment in question asserts either that M is a (definitely or probably) sufficient means for attaining the end or goal G, or that it is a (definitely or probably) necessary condition for attaining it. Thus, a conditional judgment of value can be reformulated as a statement which expresses a strict or a probabilistic kind of causal relationship, and which no longer 44

SCIENCE AND HUMAN VALUES contains any value terms—such as "good," "better," "ought t o " — at all. And a statement of this kind surely is an empirical assertion capable of scientific test.

4 Unfortunately, this does not completely solve our problem; for after a conditional judgment of value referring to a certain goal G has been tested and, let us assume, well confirmed, we are still left with the question of whether the goal G ought to be pursued, or whether it would be better to seek to attain some alternative goal instead. Empirical science can establish the conditional statement, for example, that if we wish to deliver a person from intolerable suffering caused by an incurable illness, then euthanasia affords a means for doing so; but it might tell us also of means for prolonging the patient's life, if also his suffering. T h i s leaves us with the question whether it is right to give the goal of avoiding hopeless human suffering precedence over that of preserving human life. And this question calls, not for a conditional but for an unconditional,

or categorical,

judgment

of

value

to the effect that a certain state of affairs (which may have been proposed as a goal or end) is good, or that it is better than some specified alternative. Are such categorical value judgments capable of empirical test and confirmation? Consider, for example, the sentence "Killing is evil." It expresses an unconditional judgment of value which, by implication, would also unconditionally qualify euthanasia as evil. Evidently, the sentence does not express an assertion that can be directly tested by observation; it does not purport to describe a directly observable fact. Can it be indirectly tested, then, by inferring from it statements to the effect that under specified test conditions such and such observable phenomena will occur? 45

SOCIAL CONTROL IN A FREE SOCIETY

Again, the answer is clearly in the negative. Indeed, the sentence "Killing is evil" does not have the function of expressing an assertion that can be qualified as true or false; rather, it serves to express a norm, a standard of behavior, for situations in which a choice has to be made between several courses of action such as euthanasia and its alternatives. An unconditional judgment of value may have other functions as well; for example, it may serve to convey the speaker's approval or disapproval of a certain kind of action, or his commitment to the standards of conduct expressed by the value judgment. Descriptive empirical import, however, is absent; in this respect a sentence such as "Killing is evil" differs strongly from, say, "Killing is condemned as evil by many religions," which expresses a factual assertion capable of empirical test. The norm-setting function of "Killing is evil" can be thrown into relief by expressing the norm in question by means of an imperative, as it is done in the Fifth Commandment: "Thou shalt not kill." Here it is clearly beside the point to ask: Is this true or false, and what is the empirical evidence for it? Categorical judgments of value, then, are not amenable to scientific test and confirmation or disconfirmation; and this simply because they do not express assertions but rather standards or norms for conduct. It was Max Weber, I believe, who expressed essentially the same idea by remarking that science is like a map: It can tell us how to get to a given place, but it cannot tell us where to go. Gunnar Myrdal, in his book An American Dilemma (p. 1052), stresses in a similar vein that "factual or theoretical studies alone cannot logically lead to a practical recommendation. A practical or valuational conclusion can be derived only when there is at least one valuation among the premises." Nevertheless, there have been many attempts to base systems of moral standards on the findings of empirical science; and it would be of interest to examine in some detail the reasoning 46

SCIENCE AND HUMAN VALUES which underlies this procedure. In the present context, however, there is room only for a few brief remarks on this subject. It might seem promising, for example, to derive judgments of value from the results of an objective study of human needs. But no cogent derivation of this sort is possible. For this procedure would presuppose that it is right, or good, to satisfy human needs—and this presupposition is itself an unconditional judgment of value: it would play the role of a valuational premise in the sense of Myrdal's statement. Furthermore, since there are a great many different, and partly conflicting, needs of individuals and of groups, we would require not just the general maxim that human needs ought to be satisfied, but a detailed set of directives as to the preferential order and degree in which different needs are to be met, and how conflicting claims are to be settled; thus, the valuational premise required for this undertaking would actually have to be a complex system of norms; hence, a derivation of valuational standards simply from a factual study of needs is out of the question. Several systems of ethics have claimed the theory of evolution as their basis; but they are in serious conflict with each other even in regard to their most fundamental tenets. Some of the major variants are illuminatingly surveyed in one of the chapters of G. G. Simpson's book, The

Meaning

of Evolution.

One type,

which Simpson calls a "tooth-and-claw ethics," glorifies a struggle for existence that should lead to a survival of the fittest. A second urges the harmonious adjustment of groups or individuals to one another so as to enhance the probability of their survival, while still other systems hold up as an ultimate standard the increased aggregation of organic units into higher levels of organization, sometimes with the implication that the welfare of the state is to be placed above that of the individuals belonging to it. It is obvious that these conflicting principles could not have been validly inferred from the theory of evolution—unless indeed that 47

SOCIAL CONTROL IN A FREE SOCIETY

theory were self-contradictory, which does not seem very likely. But if science cannot provide us with categorical judgments of value, what then can serve as a source of unconditional valuations? This question may either be understood in a pragmatic sense, as concerned with the sources from which human beings do in fact obtain their basic values. Or it may be understood as concerned with a systematic aspect of valuation; namely, the question where a proper system of basic values is to be found on which all other valuations may then be grounded. The pragmatic question comes within the purview of empirical science. Without entering into the details of scientific studies of the question, we may say here that a person's values—both those he professes to espouse and those he actually conforms to— are largely absorbed from the society in which he lives, and especially from certain influential subgroups to which he belongs such as his family, his school mates, his associates on the job, his church, clubs, unions, and other groups. Indeed his values may vary from case to case depending on which of these groups dominates the situation in which he happens to find himself. In general, then, a person's basic valuations are no more the result of careful scrutiny and critical appraisal of possible alternatives than is his religious affiliation. Conformity to the standards of certain groups plays a very important role here, and it is a relatively rare occurrence when basic values are seriously questioned. Indeed, in many situations, we decide and act unreflectively in an even stronger sense; namely, without any attempt to base our decisions on some set of explicit, consciously adopted, basic moral standards. Now, it might be held that this answer to the pragmatic version of our question reflects a regrettable human inclination to intellectual and moral inertia; but the really important side of our question is the systematic one: If we do want to justify our decisions, we need moral standards of conduct of the uncondi48

SCIENCE AND H U M A N V A L U E S

tional type—but how can such standards be established? If science cannot validate categorical value judgments, are there any other sources from which they might be derived? Could we not, for example, validate a system of categorical judgments of value by pointing out that it represents the moral standards set up in the Bible, or in the Koran, or by some inspiring thinker or social leader? Clearly, this procedure must fail, for from the factual information here adduced, we would be able to infer, and thus to validate, the value judgments in question only if we were to use, in addition, a valuational presupposition to the effect that the moral directives stemming from the source we invoke ought to be complied with. Thus, if the process of justifying a given decision or a moral judgment is ever to be completed, certain judgments of value have to be accepted without any further justification, just as the proof of a theorem in geometry requires that some propositions be accepted as postulates, without proof. The quest for a justification of all our valuations overlooks this basic characteristic of the logic of validation and of justification. The value judgments accepted without further justification in a given context need not, however, be accepted once and for all, with a commitment never to question them henceforth in any context. This point will be elaborated further in the final section of this essay. As will hardly be necessary to stress, in concluding the present phase of our discussion, the ideas set forth in the preceding pages do not imply or advocate moral anarchy; in particular, they do not imply that any system of values is just as good, or just as valid, as any other, or that everyone should adopt the moral principles that best suit his convenience. For all such maxims have the status of unconditional value judgments and cannot, therefore, be implied by the preceding considerations, which are purely descriptive of certain logical, psychological, and social aspects of moral valuation. 49

SOCIAL CONTROL IN A FREE SOCIETY

5 T o shed further light on the relevance of scientific knowledge and scientific inquiry or unconditional valuation let us ask what help we might receive, in dealing with a moral problem, from science in an ideal state such as that represented by Laplace's conception of a superior scientific intelligence, now often referred to as Laplace's demon. T h i s fiction was used by Laplace, early in the nineteenth century, to give a vivid characterization of the idea of universal causal determinism. The demon is conceived as a perfect observer, capable of ascertaining with infinite speed and accuracy all that goes on in the universe at a given moment; he is also an ideal theoretician who knows all the laws of nature and has combined them into one universal formula; and finally, he is a perfect mathematician who, by means of that universal formula, is able to infer, from the observed state of the universe at the given moment, the total state of the universe at any other moment; thus past and future can be present before his eyes. Surely, it is difficult to imagine that science could ever achieve a higher degree of perfection! Let us assume, then, that, faced with a moral decision, we are able to call upon the Laplacean demon as a consultant. W h a t help might we get from him ? Suppose that we have to choose one of several alternative courses of action open to us, and that we want to know which of these we ought to follow. The demon would then be able to tell us, for any proposed choice, what its consequences are for the future course of the universe, down to the most minute detail, however remote in space and time. But, having done this for each of the alternative courses of action under consideration, the demon would have completed his task: he 50

SCIENCE AND HUMAN VALUES would have given us all the information that an ideal science might provide under the circumstances. A n d yet he would not have resolved our moral problem, for this requires a decision as to which is the best of the several alternative sets of consequences mapped out by the demon as attainable to us through different choices, which of them we ought to bring about. A n d the burden of this decision would still fall upon our shoulders: it is we w h o would have to commit ourselves to an unconditional j u d g m e n t of value by singling out one of the sets of consequences as superior to its alternatives. Even Laplace's demon, or the ideal science he stands for, cannot relieve us of this responsibility. In drawing this picture of the Laplacean demon as a consultant in decision-making, I have cheated a little; for if the world were as strictly deterministic as Laplace's fiction assumes, then the demon would k n o w in advance what choice we were going to make, and he m i g h t disabuse us of the idea that there were several courses of action open to us. However that may be, contemporary physical theory has cast considerable doubt on the classical conception of the universe as a strictly deterministic system: the fundamental laws of nature are now assumed to have a statistical or probabilistic rather than a strictly universal, deterministic, character. But whatever may be the f o r m and the scope of the laws that hold in our universe, we will obviously never attain a perfect state of knowledge concerning t h e m ; confronted with a choice, we never have more than a very incomplete knowledge of the laws of nature and of the state of the world at the time w h e n we must act. O u r decisions must therefore always be made on the basis of incomplete information, a state which enables us to anticipate the consequences of alternative choices at best with probability. Science can render here an indispensable service by providing us with increasingly extensive and reliable information 51

SOCIAL CONTROL IN A FREE SOCIETY relevant to our purposes; but again, it remains for us to evaluate the various probable sets of

consequences of

the

alternative

choices under consideration, a n d this requires the espousal of certain valuational standards which are not objectively determined by the facts at hand. T h i s basically simple point is clearly reflected in rigorous contemporary theories of decision-making. O n e of the objectives of such theories is the formulation of rational decision rules which will determine an optimal choice in situations where several courses of action are available, a n d where each of these may eventuate in a variety of different outcomes, each with a specific probability of occurrence. T h e theories m a k e it quite explicit that decision rules providing rational policies for action in situations of this type cannot be formulated unless at least two conditions are m e t : ( 1 ) Factual information m u s t be available concerning the probabilities of various possible outcomes, and ( 2 ) there m u s t be an antecedent specification of the values—often prosaically referred to as utilities—that are to be attached to the different possible outcomes; indeed, it is only with respect to such antecedent evaluation of all possible outcomes that we can

ask

whether a proposed decision rule is rational; i.e., broadly speaking, whether the values w e may expect to realize by adopting this rule are m a x i m a l in the sense of not being exceeded by the value expectations associated with alternative decision rules. O n c e the requisite probabilities and utilities have been specified, it becomes possible to formulate general rules of rational choice, such as the principle of m a x i m i z i n g the probabilistic expectation value of the utility of the outcome; or the so-called m i n i m a x principle; or rules of a similar kind. In the mathematical models of rational choice which are thus arrived at, the assignment of utilities to the various possible outcomes corresponds to the formulation of unconditional j u d g m e n t s of value, whereas the decision rules proposed by the theory reflect conditional judgments of 52

SCIENCE AND HUMAN VALUES

value which take into account the given categorical value judgments and the means-ends relations indicated by the available factual information on the probabilities of different outcomes.

6 The preceding three sections have been concerned mainly with the question whether, or to what extent, valuation and decision presuppose scientific investigation and scientific knowledge. This problem has a counterpart which deserves some attention in a discussion of science and valuation; namely, the question whether scientific knowledge and method presuppose valuation. The word "presuppose" may be understood in a number of different senses which require separate consideration here. First of all, when a person decides to devote himself to scientific work rather than to some other career, and again, when a scientist chooses some particular topic of investigation, these choices will presumably be determined to a large extent by the preferences of the person in question; i.e., by how highly he values scientific research in comparison with the alternatives open to him, and by the importance he attaches to the problems he proposes to investigate. In this explanatory, quasi-causal sense the scientific activities of human beings may certainly be said to presuppose valuations. Much more intriguing problems arise, however, when we ask whether judgments of value are presupposed by the body of scientific knowledge, which might be represented by a system of statements accepted in accordance with the rules of scientific inquiry. Here, presupposing will have to be understood not in a causal-psychological but in a systematic-logical sense. One such sense is invoked when we say, for example, that the statement "Henry's brother-in-law is an engineer" presupposes that Henry has a sister: in the sense here intended, a statement presupposes 53

SOCIAL CONTROL IN A FREE SOCIETY whatever can be logically inferred f r o m it. But, as was noted earlier, no set of scientific statements logically implies an unconditional j u d g m e n t of value; hence, scientific knowledge does not, in this sense, presuppose valuation. T h e r e is another logical sense o f presupposing, however. W e m i g h t say, for example, that in Euclidean geometry the angles u m theorem for triangles presupposes the postulate of the parallels in the sense that that postulate is an essential part of the basic assumptions f r o m w h i c h the theorem is deduced.

Now

statements representing scientific hypotheses and theories are not normally

validated

by

deduction

from

supporting

evidence

( t h o u g h it m a y happen that a scientific statement, such as a prediction, is established by deduction f r o m a previously ascertained, m o r e inclusive set of statements) ; the procedure used is normally an inductive one. B u t no matter w h i c h kind of procedure is employed in a given case, we m i g h t ask whether the statements representing scientific k n o w l e d g e presuppose valuation in the sense that the grounds on w h i c h

they are accepted

include,

sometimes or always, certain unconditional j u d g m e n t s of value. A g a i n the answer is in the negative. T h e grounds on

which

scientific hypotheses are accepted or rejected are provided by empirical evidence, which m a y include observational findings as well as previously established laws and theories, but surely no value j u d g m e n t s . Suppose for example that, in support of the hypothesis that a radiation belt of a specified kind surrounds the earth, a scientist were to adduce, first, certain observational data, obtained perhaps by rockets; secondly, previously accepted geophysical and other theories; and

finally,

certain j u d g m e n t s of

value, such as " i t is good to ascertain the truth." Clearly, the judgments of value would then be dismissed as lacking all logical relevance to the proposed hypothesis since they can contribute neither to its support nor to its disconfirmation. B u t the question whether science presupposes valuation in a 54

SCIENCE AND HUMAN VALUES logical sense can be raised, and recently has been raised, in yet a different manner, in which it refers more specifically to valuational presuppositions of scientific method. In the preceding considerations, scientific knowledge was thought of as represented by a system of statements which are sufficiently supported by available evidence to be accepted in accordance with the principles of scientific test and validation. W e noted that as a rule the observational evidence on which a scientific hypothesis is accepted is far from sufficient to establish that hypothesis conclusively. For example, Galileo's law refers not only to past instances of free fall near the earth, but also to all future ones; and the latter surely are not covered by our present evidence. Hence, Galileo's law, and similarly any other law in empirical science, is accepted on the basis of incomplete evidence. Such acceptance carries with it the "inductive risk" that the presumptive law may not hold in full generality, and that future evidence may lead scientists to modify or abandon it. A precise statement of this conception of scientific knowledge would require, among other things, the formulation of two kinds of rules: First, rules of confirmation: these would specify what kind of evidence is confirmatory, what kind disconfirmatory for a given hypothesis. Perhaps they would also determine a numerical degree of evidential support (or confirmation, or inductive probability) which a given body of evidence could be said to confer upon a proposed hypothesis. Secondly, there would have to be rules of acceptance: these would specify how strong the evidential support for a given hypothesis has to be before the hypothesis can be accepted into the system of scientific knowledge; or, more generally, under what conditions a proposed hypothesis is to be accepted, under what conditions it is to be rejected by science on the basis of a given body of evidence. Recent studies of inductive inference and statistical testing have devoted a good deal of effort to the formulation of adequate rules 55

SOCIAL CONTROL IN A FREE SOCIETY of either kind. In particular, rules of acceptance have been treated in many of these investigations as special instances of decision rules of the sort mentioned in the preceding section. T h e decisions in question are here either to accept or to reject a proposed hypothesis on the basis of given evidence. A s was noted earlier, the formulation of " a d e q u a t e " decision rules requires, in any case, the antecedent specification of valuations that can then serve as standards of adequacy. T h e requisite valuations, as will be recalled, concern the different possible outcomes of the choices which the decision rules are to govern. N o w , when a scientific rule of acceptance is applied to a specified hypothesis on the basis of a given body of evidence, the possible "outcomes" of the resulting decision may be divided into four major types: (1) the hypothesis is accepted (as presumably true) in accordance with the rule and is in fact true; (2) the hypothesis is rejected (as presumably false) in accordance with the rule and is in fact false; (3) the hypothesis is accepted in accordance with the rule, but is in fact false (4) the hypothesis is rejected in accordance with the rule, but is in fact true. T h e former two cases are what science aims to achieve; the possibility of the latter two represents the inductive risk that any acceptance rule must involve. A n d the problem of formulating adequate rules of acceptance and rejection has no clear meaning unless standards of adequacy have been provided by assigning definite values or disvalues to those different possible "outcomes" of acceptance or rejection. It is in this sense that the method of establishing scientific hypotheses "presupposes" valuation: the justification of the rules of acceptance and rejection requires reference to value judgments. In cases where the hypothesis under test, if accepted, is to be made the basis of a specific course of action, the possible outcomes may lead to success or failure of the intended practical application; in these cases, the values and dis values at stake may well be expressible in terms of monetary gains or losses; and for 56

SCIENCE AND HUMAN VALUES situations of this sort, the theory of decision functions has developed various decision rules that can be used, for example, in the context of industrial quality control. W h e n it comes to decision rules for the acceptance of hypotheses in pure scientific research, where no practical applications are contemplated,

the

question of how to assign values to the four types of outcomes mentioned earlier becomes considerably m o r e problematic. But in a general way, it is quite clear also for this context that the standards governing the inductive procedures of pure science reflect the objective of obtaining a certain goal, and that in justifying them, one has to refer to that goal, which may be described somewhat vaguely as the attainment of an increasingly reliable, extensive, and theoretically

systematized body of

information

about the world. Indeed, if we were concerned, instead, to form a system o f beliefs or a world view that is emotionally reassuring or esthetically satisfying to us, then it would not be reasonable at all to insist, as does science, on a close accord between the beliefs we accept and the evidence of our senses; and the standards of objective testability and confirmation by publicly ascertainable evidence would have to be replaced by acceptance standards of an entirely different k i n d . T h e standards of procedure must be formed in consideration o f the goals to be attained, and their justification must m a k e reference to a c o m m i t m e n t to those goals.

7 If, as has been argued in section 4, science cannot provide a validation of categorical value j u d g m e n t s , can scientific method and knowledge play any role at all in clarifying and resolving problems

of

moral

valuation

and

decision?

The

answer

is

emphatically in the affirmative. I will try to show this in a brief 57

SOCIAL CONTROL IN A FREE SOCIETY

survey of the principal contributions science has to offer in this context. First of all, science can provide the factual information required for the resolution of moral issues. Such information will always be needed, for no matter what system of moral values we may espouse—whether it be egoistic or altruistic, hedonistic or utilitarian, or of any other kind—surely the specific course of action it enjoins us to follow in a given situation will depend upon the facts about that situation; and it is scientific knowledge and investigation that must provide the factual information which is needed for the application of our moral standards. More specifically, factual information is needed, for example, to ascertain ( a ) whether a contemplated objective can be attained in a given situation; (b) if it can be attained, by what alternative means and with what probabilities we may be able to achieve our end; (c) what side effects and ulterior consequences the choice of a given means may have apart from probably yielding the desired end; ( d ) whether several proposed ends are jointly realizable, or whether they are incompatible in the sense that the realization of some of them will probably prevent the realization of others. And by thus giving us information which is indispensable as a factual basis for rational and responsible decision, scientific research may well motivate us to change some of our valuations. If we were to discover, for example, that a certain kind of goal which we had so far valued very highly could be attained only at the price of seriously undesirable side effects and ulterior consequences, we might well come to place a less high value upon that goal. Thus, more extensive scientific information may lead to a change in our basic valuations—not by "disconfirming" them, of course, but rather by motivating a change in our total appraisal of the issues in question. Secondly, and in a quite different manner, science can illumi58

SCIENCE AND HUMAN VALUES nate certain problems of valuation by an objective study of the psychology and sociology of valuation. S u c h a study is concerned with the psychological, cultural, and other factors that affect the values espoused by an individual or a g r o u p ; with the ways in which such valuational c o m m i t m e n t s c h a n g e ; and perhaps with the m a n n e r in which the espousal o f a given value system may contribute to the emotional security of an individual or to the functional stability of a group. Psychological, anthropological, and sociological studies of valuational behavior cannot, of course, serve to validate any system of moral

standards.

But

their

results

can

psychologically

effect

changes in our outlook on moral issues by broadening our horizons, by m a k i n g us aware of alternatives not envisaged, or not embraced, by our own group, and by thus providing some safeguard against moral dogmatism or parochialism. T h e r e is yet another way in which science can contribute to the molding and critical clarification of our moral standards; namely, by the lessons to be learned f r o m the history of science and f r o m the fundamental tenets of its methodology. T o

illustrate

this

point, let m e consider briefly some aspects of the problem of conformity in its relation to the objectives of science. In the history of science, there has often existed a fruitful interrelation between scientific research and technological problems and developments; yet, the deepest and most revolutionary scientific insights have

not

resulted

from

research

aimed

at

practical technological application. O n the contrary, it is usually pure, " b a s i c " scientific inquiry, undertaken without any practical objective, that has led to the most important advances in our knowledge of the world, and eventually also in our control over it. Scientific concepts and theories have their o w n way of posing new problems that call for investigation; they have their o w n inner logic that determines the direction of further research. T a k e the case of geometry, f o r example. N o problem 59

could

SOCIAL CONTROL IN A FREE SOCIETY seem more sterile and unimportant to the practically-minded outsider than the question whether the postulate of the parallels was independent of the other postulates of Euclid's system; yet, the pursuit of this question led to the discovery of non-Euclidean geometries in the nineteenth century; and while the practicalist w o u l d still consider these as typical ivory-tower g a m e s , there came, in our century, the application of a certain f o r m of nonEuclidean geometry in the general theory of relativity, which m a d e the abstract theoretical system a key to the understanding of the structure of the universe. It is a familiar story that in many instances pure scientific research has led to theoretical results that eventually also yielded enormous returns in technical applications; hence there is no need further to belabor the point that conformance with the popular d e m a n d for immediate practical results of scientific research w o u l d be detrimental, first of all, to the scientific objective of advancing our k n o w l e d g e and understanding of the world, and, in the long run, also to the technological objective of extending the reach and the effectiveness of our control over our environment. Another lesson concerning conformity can be learned f r o m the methodology of science, which is essentially anti-authoritarian in spirit. Science m u s t reject, of course, any d e m a n d that its procedures or results c o n f o r m to the tenets of any authority extrinsic to it such as political ideologies or religious d o g m a s ; nor can it recognize as definitive and unquestionable the authority of any scientist however eminent, or of any scientific theory however firmly

established. T h i s is a matter, basically, of a conditional

j u d g m e n t of value: If science is to achieve its objective of securing a m a x i m u m body of reliable knowledge about the world, then it has to check its hypotheses against the relevant facts of the world and to construct its theories so as to account for those facts rather than to c o n f o r m to the dicta of any authority. T h e pro60

SCIENCE AND HUMAN VALUES luncements of scientific "authority" m u s t certainly be taken into nsideration in so far as they reflect careful observation or interetation of empirical phenomena; but the body of the available t a that are relevant to a given theory changes in the course time, and science must therefore stand ready to question and issibly to revise or abandon even its best-established concepts id principles if new and adverse evidence should be f o u n d . In e barely six decades of this century, which has witnessed the rth of relativity theory and of q u a n t u m mechanics, to mention st two striking examples, science has repeatedly demonstrated adherence to this nonconformist standard of inductive openindedness. B u t precisely if we grant that scientific hypotheses and theories e always open to revision in the light of new empirical evidence, e we not obliged to assume that there is another class of scienic statements which cannot be open to doubt and reconsidera>n; namely, the observational statements describing experiential idings that serve to test scientific theories?

Those

simple,

aightforward reports of what has been directly observed in e laboratory or in scientific field work, for example—must they >t be regarded as i m m u n e f r o m any conceivable revision, as •evocable once they have been established by direct observation ? ;ports on directly observed phenomena have indeed often been nsidered as an unshakable bedrock foundation for all scientific 'potheses and theories. Yet this conception is untenable; even :re, we find no definitive, unquestionable certainty. F o r , first of all, accounts of what has been directly observed are bject to error that may spring from various physiological a n d ychological sources. Indeed, it is often possible to check on e accuracy of a given observation report by c o m p a r i n g it with e reports m a d e by other observers, or with relevant data obined by some indirect procedure, such as a motion

picture

ken of the finish of a horse race; and such comparison m a y 61

SOCIAL CONTROL IN A FREE SOCIETY lead to the rejection of what had previously been considered as a correct description of a directly observed phenomenon. We even have theories that enable us to explain and anticipate some types of observational

error, and in such cases, there is no

hesitation

and

to

question

to

reject certain

statements

that

purport simply to record what has been directly observed. Sometimes relatively isolated experiential

findings

may con-

flict with a theory that is strongly supported by a large number and variety of other data; in this case, it may well happen that part of the conflicting data, rather than the theory, is refused admission

into the system of accepted scientific

statements-

even if no satisfactory explanation of the presumptive error of observation is available. In such cases it is not the isolated observational finding which decides whether the theory is to remain in good standing, but it is the previously

well-substantiated

theory which determines whether a purported observation report is to be regarded as describing an actual empirical occurrence F o r example, a report that during a spiritualistic seance, a piece of furniture had freely floated above the floor would normall be rejected because of its conflict with extremely well-confirmed physical principles, even in the absence of some specific explanation of the report, say, in terms of deliberate fraud by the medium, or of high suggestibility on the part of the observer Similarly, the experimental

findings

reported by the physicist

Ehrenhaft, which were claimed to refute the principle that all electric charges are integral multiples of the charge of the electron, did not lead to the overthrow, nor even to a slight modification, of that principle, which is an integral part of a theory with extremely strong and diversified experimental support. Need less to say, such rejection of alleged observation reports by reason of their conflict with well-established theories requires considerable caution;

otherwise, a theory, once accepted, might be

used to reject all adverse evidence that might subsequently be 62

SCIENCE AND HUMAN VALUES

found—a dogmatic procedure entirely incompatible with the spirit of scientific inquiry. Even reports on directly observed phenomena, then, are not irrevocable; they provide no bedrock foundation for the entire system of scientific knowledge. But this by no means precludes the possibility of testing scientific theories by reference to data obtained through direct observation. As was noted earlier, such test involves the derivation, from the hypothesis or theory in question, of consequences concerning directly observable phenomena; these consequences are then checked by suitable observations. As has just been argued, the results obtained by such direct checking cannot be considered as absolutely unquestionable and irrevocable; they are themselves amenable to further tests which we may carry out if there is reason for doubt. But obviously if we are ever to form any beliefs about the world, if we are ever to accept or to reject, even provisionally, some hypothesis or theory, then we must stop the testing process somewhere; we must accept some evidential statements as sufficiently trustworthy not to require further investigation for the time being. And on the basis of such evidence, we can then decide what credence to give to the hypothesis under test, and whether to accept or to reject it. This aspect of the scientific method of certifying hypotheses or theories seems to me to have a parallel in the procedure of sound valuation and rational decision. For in order to make a rational choice between several courses of action, we have to consider, first of all, what consequences each of the different alternative choices is likely to have. This affords a basis for certain conditional judgments of value that are relevant to our problem. If this set of results is to be attained, this course of action ought to be chosen; if that other set of results is to be realized, we should choose such and such another course; and so forth. But to arrive at a decision, we still have to decide upon the 63

SOCIAL CONTROL IN A FREE SOCIETY relative values of the alternative sets of consequences attainable to us; and this, as was noted earlier, calls for the acceptance of, or a commitment to, an unconditional judgment of value, which will then determine our choice. But such acceptance need not be regarded as definitive and irrevocable, as forever binding in reference to all our future decisions: an unconditional judgment of value, once accepted, still remains open to reconsideration and to change. Suppose, for example, that we have to choose, as voters or as members of a city administration, between several alternative social policies, some of which are designed to improve certain material conditions of living, whereas others aim at satisfying cultural needs of various kinds. If we are to arrive at a decision at all, we will have to commit ourselves to assigning a higher value to one or the other of those objectives. But while the judgment thus accepted serves as an unconditional and basic judgment of value for the decision at hand, we are not for that reason committed to it forever—we may well reconsider our standards and reverse our judgment later on; and though this cannot undo the earlier decision, it will lead to different decisions in the future. Thus, if we are to arrive at a decision concerning a moral issue, we have to accept some unconditional judgments of value; but these need not be regarded as ultimate in the absolute sense of being forever binding on all our decisions, any more than the evidence statements relied on in the test o£ a scientific hypothesis need to be regarded as forever irrevocable. All that is needed in either context is a relative ultimate, as it were: a set of judgments—moral or descriptive—that are accepted at the time as not in need of further reflection or scrutiny. These relative ultimates permit us to keep an open mind in regard to the possibility of making changes in our heretofore unquestioned commitments and beliefs; and surely the experience of the past suggests that if we are to meet the challenge of the present and the future, we need more than ever undogmatic, critical, and open minds. 64

Mass Versus Coterie Culture* Gilbert Seldes T H E CENERAL SUBJECT OF THESE ESSAYS DEALS W I T H THE FORCES IN

contemporary American life that are leading us to conformity and in that way threatening the principle of freedom of the individual. I am here to try to isolate the lines of force that lead to conformity, and also those that favor the independent thinking man. The independent thinking man is the essential unit in a democratic society, the one element we cannot possibly afford to lose. But I have been asked to discuss Mass as opposed to Coterie Culture, which means that I must deal primarily with the popular arts, rather than with classic literature. It is perfectly obvious that we're playing here with loaded dice. The word "coterie" is a favorite word of mine, although I did not choose it. A coterie is a clique, a set. In fact, it is our set, the right set. And it gives us the image of a superior few who are huddled together protecting their superiority against others. When I began to study French about three miles from here at Broad and Spring Garden Streets, I remember that we read Tartarin, and I recall that the second chapter was headed with * Editor's note: In contrast to the previous lectures, which were read and revised from prepared manuscripts, this essay is based on an informal and tape-recorded lecture, edited as little as practicable for print. 65

SOCIAL CONTROL IN A FREE SOCIETY

a word we called "oox" which was spelled "e-u-x," the French word for "them." Tartarin had imaginary enemies. They were all around him. And he was always defending himself, defending the good life, or "our way of life" (a phrase once acceptable, but through political use rather repulsive now). It is amusing to discover what the word coterie really comes from. I had always assumed that it meant "on the side" or "one side," but apparently, according to the New Oxford Dictionary, coterie originally meant a certain number of peasants united to hold land from a lord. That is the origin of what now is practically synonymous with the elite. On the other side we have the opposite concept: popular culture. Now I know we are all committed to democracy, but most of us have some misgivings about its place in art and culture. The people, yes; but let them keep their dirty hands off our superior arts. Popular, as we use the word, shades away immediately from "the elite," and moves toward "folk" as in the "folk arts," and presently comes to suggest "the mob." It suggests the vulgar arts, especially those arts which are created by mass-production for a faceless and, consequently, a tasteless mass. So the dice are indeed loaded, but we're not now so sure in whose favor they're loaded, and I think that the confusion would be complete if we should discover that the mass media are really composed of minority arts. We all have a hope, at least, that somewhere between these extremes something desirable lies. We have only to discover what that in-between status is.

2 Let's observe the extremes first. In different degrees both the coterie and the popular arts belittle the creative process. If we try 66

MASS VERSUS COTERIE CULTURE

to describe or to define the arts, we can do it best by defining the intention of their admirers. Certainly the arts that are cherished in small groups, in coteries, are cherished precisely because they are not popular. They do not have to be great arts. There was a time (and I may have been in part responsible) when it was chic to admire comic strips. The comic strip "Krazy Kat" was admired among other people by that fine poet Ε. E. Cummings, by Lyman Bryson who presided over "Invitation to Learning," by the eminent art critic Clive Bell, and so on. Perhaps I should note that this was the least popular of the popular comic strips. Again it certainly has been chic for a long time for intellectuals to admire certain aspects of jazz. I know that I myself can, without being a musicologist in any way, understand most program notes of a classic concert, but I'm lost completely with the pedantic program notes that accompany jazz concerts. But these are the exceptions; in general the arts that are admired by small, superior groups are those which are properly called "avant-garde"—that is, music in which there are no simple and easy melodies, painting that is not representational, art that in the end doesn't communicate anything at all. We all have a kind of vested interest in these arts. If we go to the trouble to learn about them, we think we want to protect them against people who haven't taken the trouble, who have not studied; and we resent the fact that they are getting pleasure out of simpler arts. In self-protection, we say, "These are ours. These are the great arts. And you mob people—really, you can't understand our delicate perceptions." Thus, the coterie arts are defined chiefly by the attitudes of the people who receive them; whereas the popular arts and crafts are defined by the intention of the people who produce them. Note that I do not say people who create them, because that's a different matter. The producer, whom you can sometimes define as the man who constructs or finances an operation, is the man who dictates 67

SOCIAL CONTROL IN A FREE SOCIETY what the nature of the popular arts shall be. His intention is to please, to please without demanding any special effort from the audience, to please constandy and to please universally. These are fairly new objectives for the arts. T h e fine arts did not attempt any of them except possibly by accident. T h e i r intention was, in general, to please the people who understood best what the artist was after. T h e fine arts were created rather than produced. T h e elite generally believe that they are preserving the

fine

arts—and I agree. T h e fine arts fundamentally differ from the popular arts in this: they appear to us to convey eternal truths, and we hope at least that they are universal. In any case, they cross national frontiers. N o w , folk arts are definitely national, sometimes local, and they deal with the more or less remote past. T h e fine arts take care of what is eternal; the folk arts take care of what is in the past, leaving for the popular arts the instant present. F o r many reasons, most of them mechanical, popular art is fairly cosmopolitan and to the extent that it is national it is hardly universal. T h e most important distinction for us, because we are looking for the independence of the human spirit, is that in the fine arts the individual artist does get his chance, and that is where a small, intellectual, refined group serves a great purpose. It serves the common good, because it fights to protect the rights of the artist. W h e n an artist's rights are protected he, as an independent man, is permitted to exist; and we can take courage from him. T h e coterie groups will fight for the artist, even fighting for his right to be intentionally obscure in his expression. T h e y have often derived some special pleasure from whatever mystifies the masses. But the result is still there, preserving the right of the individual to be himself and not to communicate with us if he doesn't want to, and to be free merely to express himself. T h e folk arts, on the other hand, are really not much con68

MASS VERSUS COTERIE CULTURE cerned with the artist. T h e folk-artist tends to be anonymous. W h o wrote " M o t h e r G o o s e " ? W h o wrote " F r a n k i e and J o h n n y " ? A n d finally in contemporary popular art, the creative person is neither a highly individualistic character nor is he an anonymous part of the folk. A s far as he is creative, the popular artist is part of the m a c h i n e . In the movies, in broadcasting, in c o m i c books, in m a n y other of the popular arts, three or four people may w o r k

simultaneously. T h e r e

may

even

be two

sets

of

writers w o r k i n g on the same m o v i e without the first set k n o w i n g about it, in addition to directors and producers w h o have to be consulted as to h o w the story is to run. E v e n with such a highly personal manifestation as the popular song, publishing houses have song writers under contract by the year and, in effect, assign the theme of a song—they tell the writers h o w m a n y bars the verse is to be and h o w m a n y bars the chorus. T h e y do not dictate the actual melody. B u t here again is a whole team, with the manufacturer playing almost as great a part as the inspired artist, insofar as he is inspired. S o popular art is not an expression o f a single personality, not one man's reconstruction o f life, imposing on its confusions and complexities

a created

order.

And

consequently,

if

you

looking for the non-conforming spirit, it isn't surprising

are that

you find it chiefly in the fine arts. W e on the outside, the appreciators of the arts, have a tendency to learn in circles or "styles." Actually, in the popular arts, w h a t it is right to admire is what stands out f r o m the repetitive cycles, as in the movies, where there is m o r e and m o r e conformity to what everybody is liking at the t i m e until the cycle is exhausted and something else takes its place. I am not trying to dissimulate, I a m not trying to hide the essential fact that the m a n u f a c t u r e o f the popular arts is, to a great extent, a big business in itself even w h e n it isn't actually associated with big business, as in the case o f 69

broadcasting.

SOCIAL CONTROL IN A FREE SOCIETY I have a hunch that even if it were not, the popular arts would tend to be repetitive, because there is a positive value in repetition. You do not disturb people if you know how to please them, and one way not to disturb them is to give them something with which they are familiar. That is the reason for the gangster cycle or the domestic cycle in the movies and for "same time, same station" with the overtones of "same plot, same jokes" in broadcasting. This principle of repetition has been known ever since the time of James Fenimore Cooper, to be sure, but we have it today in a more acute form. We like to know that Jack Benny is a miser, even when the surface appearances seem to be new. Perhaps for a moment Jack Benny is presented to us as a spendthrift, but in the end, when it turns out that this was just a nightmare, we have the warm glow of feeling that we've got the old Jack Benny after all, the one we're accustomed to, the one we love, and the one who puts no strain on our intellect. Speaking of intellect and of intellectuals, of whom I am frankly one, I would like to suggest the possibility that we overvalue the arts. It's a natural feeling. This is our pleasure, this is our joy. Ernest Hemingway once pointed out that when empires crumble and cities crumble, what remains are a few books, just the fine arts. This would imply that a man like James J. Hill, who put a railroad across the United States and opened up the Northwest, was less important than the man who created a couple of novels—or that the man who, singlehanded, stamped out pellagra, the sleeping sickness of the South, was not as important as Edgar Guest just because Guest is in print and in a book. I know that this is not what Hemingway meant, and I know that I have taken extreme cases, but I think that we ought to be aware of the way we tend sometimes to overestimate the value of the arts. T h e great point is that the fine arts do contribute to the 70

MASS VERSUS COTERIE CULTURE

security of the independent, thinking man. I say "independent, thinking man" to define in the briefest way the essential person in our society. We need not only to protect him as he now exists in the United States, but we must encourage him so that we will have more of him. And the fine arts work favorably for the security of this independent thinking man, because they influence us privately, individually. They require some thought from us, and they give us a certain maturity.

3 On the other hand—and this is extremely significant—the popular arts influence us publicly because they have a profound influence even on those who do not patronize them, on the indifferent and even on the contemptuous. For example, we say that we are not to be taken in by a demagogue on radio or television. But the demagogue succeeds: he can become our mayor, governor, senator, or president for us as well as for those who listen to him and are persuaded by him. Fortunately this has not occurred, at least in the higher political ranks. We have not yet been afflicted by demagogues who made their way simply because they were good on television. And again, many parents tell me that their children do not see sadistic television programs and do not read those ghastly things that are still called comic books, which are really manuals of murder. And I tell them that possibly it would be a good thing if their children did watch these shows, because the innocent child may go out on the street and be attacked by a delinquent who has been reading and seeing these things. At least, in the comic books the first four or five squares show you how to defend yourself, even if the events turn out badly in the end. W e all 71

SOCIAL CONTROL IN A FREE SOCIETY

make a great error when we say, " W e don't have to go to the movies," or, as the management of the broadcasting industry says, "They can turn it off, can't they?" It is not what a few people can turn off but what a great majority of people will look at that is going to create the climate in which the decisions will be made that can alter the world in which we live. In the past fifty years two things have happened in the air, which we need to observe very carefully. The atomic bomb has burst into the air, and broadcasting has come into the air. I am not sure which is the more dangerous, but I am sure that there is no place to hide from either one of them. And the danger from the fallout of the atomic bomb parallels the danger of the fallout from the television program. I suggested earlier that the public arts, the mass media, may really deal with the minority because of a peculiar mathematical situation. I do not say that the 30 or 40 million television sets tuned in to programs, sometimes tuned in mosdy to one program, indicate a minority of the whole of the population. Not at all. I do say, however, that every human being has a large number of interests. One individual can be a baseball enthusiast and a ship steward or, if it comes to that, the leader of an anti-union movement and a good father and husband as well. As a father, he may have a retarded child, and therefore will be interested in special education or in his church, and so on. Now if the popular arts satisfy only a small percentage of these interests, and, particularly if they overfeed these appetites and prevent the other interests and appetites from flourishing, I would say that you can, by a slight semantic trick, say that they are serving minority purposes inasmuch as they only satisfy a minority of the interests of a great many people. The real trouble is that they oversatisfy these interests and thus prevent the other interests which are latent in every man from developing. We don't appreciate this situation because we are hardly aware 72

MASS VERSUS COTERIE CULTURE of a great revolution which is t a k i n g place in our o w n t i m e . It is the shift from what you m i g h t call our print culture, the culture of books and magazines, to an electronic culture based on movies, broadcasting, etc. A omist,

the

late H a r o l d

Innis,

distinguished Canadian set

forth

a fruitful

econ-

theory

of

communications. H e said that whenever we have a profound change in the mechanism o f c o m m u n i c a t i o n s , we see it followed by a profound social revolution. T h e most conspicuous e x a m p l e of such a revolution followed the introduction of p r i n t — w h e n the whole medieval system o f society fell to pieces. N o w w e are in the middle of another such revolution. P r i n t is to a great extent losing its power to the electronic media. W e can't tell in w h a t direction this revolution is g o i n g to g o ; all w e can do is prepare ourselves at least to be a m o n g those w h o are aware that it is happening and take part in directing its forces. O n e way to do this is to consider that we have a pluralistic system o f education in the U n i t e d States—not merely the official educational system of school and college, but other systems as well. Advertising is also a system of education, and certainly broadcasting is. Perhaps political campaigns

might

also be considered

an

educational system, and the pulpit surely is. B u t these systems seem to be in opposition one to the other. T h e most conspicuous and flagrant case is the opposition between the school and the television set, even though the conflict between them has been happily compromised in certain W h e n faced with a choice between h o m e w o r k

and

places.

watching

television a great m a n y children have preferred to watch television—and this has caused dismay in a great m a n y

schools.

B u t some of them have solved it by abolishing h o m e w o r k . S o m e time ago I proposed the precise contrary way of solving

the

matter. I said: m a k e watching television obligatory and perhaps that would stop the little brats. B u t , m o r e seriously, it does seem that we could integrate the two 73

systems

and

use

the

SOCIAL CONTROL IN A FREE SOCIETY material of the mass media, movies, broadcasts, and so on, as part of the curriculum of our schools. T h i s can begin very early. Insofar as little children go to kindergarten or to school anywhere, they may talk about shows they have seen on television; and they should be encouraged to do so, because merely to express delight is already a reaction and a form of criticism. W h e n a child says that she prefers this program to another, and another child prefers the other one, you have the beginning of a discussion. A n d when these discussions get into the public schools they should be part of the regular curriculum. I ' m not speaking about those programs which in themselves are of an educational nature. I'm talking rather about the quiz shows, the westerns, and so on. Let them be discussed. Let the children have debates. Let one class debate with another one, or one room debate with another one. Instead of reverting to the classic subjects of debate they can dispute the merits of one kind of program, or the merits of a specific program as opposed to another. In this way we would be sharpening the wits of the students. A n d then, in the upper area, high school, and college, we would have the opportunity—particularly

where you, the

taxpayers, pay the bill in state-supported institutions—of creating a really powerful core of critical individuals. T h e r e should be courses in communications; there should be departments devoted to the study of how the mass media operate, why they work the way they do, and their defects and what we can do about them. T h i s is not a popular idea in certain academic circles. I remember talking to the president of one college and suggesting to him—his college is one of the great ones in the country, I might add—that we should have a chair at least in the arts of communication, and he answered that he didn't think that the colleges which had such chairs were doing very much good. I consider this a pusillanimous kind of reply. T h e fact that 74

MASS VERSUS C O T E R I E

CULTURE

small colleges are unable to do the work well is no excuse for a great college not to try the thing at all. W e need a new kind of audience, and for it we must turn to all those institutions which might be called the countervailing powers. All magazines above the scandal level really depend for their prosperity on a public that can and does read and think to a certain extent. Such magazines should have a critical attitude toward the mass media, and very few of them have. O f course, our regular educational institutions can prosper only if each succeeding generation can use and appreciate the cultural heritage of the past—and for that they must be protected against the blandishments of the popular arts—but the habit of thinking has to continue in the world, or we shall all be lost. T h e number of people required to change the atmosphere in which the mass media are received is relatively a small one. If we had had courses in the mass media in colleges since the G . I . Bill went into effect, we would now have some five million homes in which television, for instance, would be received with some kind of criticism, instead of the abject gratitude, which, of course, is what the managers of the business like to have. N o r can magazine articles, schools, and so on, accomplish what has to be accomplished. W e must learn to use the mass media themselves, and I can tell you of one place where a good beginning has been made. Last summer I made two suggestions to some people in Seattle. O n e was, as they have an educational station there, that the commercial stations should boost the educational station. An

educational

station

does not compete

for

sponsors, but it does compete for the time of individuals. W h e n the educational station was started in Seattle with two new courses, one in medieval romance and the other in

practical

German, a commercial station went on the air for a full hour giving a preview of these two programs, and urging people to tune in on them for the next semester. 75

SOCIAL CONTROL IN A FREE SOCIETY My other suggestion was even more revolutionary, and it may also be put into operation. It is this. I suggested to these people that a small number of them should go to the manager, owner, executive, whichever may be the case, of their local stations and say: " W e would like to discuss our problems with you—our mutual problems. W e would like to tell you how much we like certain programs and how much we admire you for having done this or that. We'd like to ask you whether it is essential that such and such a program, which we think is unsuitable, should be broadcast at hours when children are watching. W e would like to suggest programs to you and would like you to tell us why certain things happen so that we'll understand the broadcasting business better." It is clear that no executive of a broadcasting station could resist such a request for a conversation. After he has agreed to this conversation, then you say to him: " W e also would like this conversation to take place on the air on your channel." Now it seems a wild idea that a channel should open itself to a discussion of its own shortcomings and failures even if it may receive praise and kudos at the same time, but it could be done. It is at least a possible way for the public to express itself, to make its wants felt. People who criticize television and the other mass media should be urged seriously to do something about them, to find their own ways, if the ways I suggest are inadequate, to make their wants felt. Broadcasting especially is supposed to operate in the public interest, but how can we know the public interest unless the public defines it in part, at least, for itself? It is my feeling that you have no right to raise your voice in criticism of the mass media unless you are also willing to lift your hand to make them better.

76

Prometheus Incorporated: Conformity or Coercion? George J. Stigler ÍY TASK, AS I UNDERSTAND IT, IS TO DISCUSS WHETHER ECONOMIC

ndividualism is becoming obsolete. Has the growth of large conomic and political units, or the increasing degree of interependence of social actions, rendered it impossible for the ndividual to pursue, or even to preserve, his own tastes in natters economic? Is the best, or most, that we can now achieve, he self-expression of groups or organizations? I begin with the confession that I (and probably most econmists) have taken the nature of economic individualism for ;ranted without seriously inquiring into its nature. The phrase uggests to us the independent businessman or entrepreneur, be ie farmer or lawyer or manufacturer, making his own decisions nd reaping the rewards and penalties of his own abilities and fforts. Since this is what the public at large also means by conomic individualism, and since concepts are always changed iy being thought about, it is obvious that we have not done our iroper work. Let us do a little of it now. Individualism is a word only a little over a century old; it was 77

SOCIAL CONTROL IN A FREE SOCIETY introduced into our language by the translator of Tocque ville's Democracy

in

America:

Individualism is a novel expression, to which a novel idea has given birth. Our fathers were only acquainted with égoïsme (selfishness). Selfishness is a passionate and exaggerated love of self, which leads a man to connect everything with himself and to prefer himself to everything in the world. Individualism is a mature and calm feeling, which disposes each member of the community to sever himself from the mass of his fellows and to draw apart with his family and his friends, so that after he has thus formed a little circle of his own, he willingly leaves society at large to itself. 1 The word no longer connotes so much a withdrawal from society as self-reliance in social life, nor is the word used with so much dislike as Tocqueville proceeded to express for it. But the essence of individualism still resides in the absence of social restraints upon the individual, be they legal or extralegal, be they compulsions of force or ostracism or habit. Individualism thus means the freedom of the individual from the restraints of other men, dead or alive. Of course no man ca live in society and be wholly unrestrained b

it, so individualism

is a matter of degree, but not a matter of detail. Man is also shackled by his physical environment, which may also deny to him food or health or leisure or happiness. We should not wish to generalize the content of individualism to make it mean freedom from physical as well as social restraint on individual man's actions, for then we shall have made economic individualism a synonym for economic welfare. But the juxtaposition of the two kinds of limitations upon men raises 1

Democracy in America, II, ii, 2. 78

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? an immediate question: W h y distinguish social f r o m physical restraints? T h e distinction is certainly not an easy one to draw in many cases; for example, a man's biological inheritance is determined by social as well as physical factors. A t times the same limitation of action may be imposed upon a man by either social or physical restraints; one m a n may be prohibited f r o m practicing an occupation (say that of airline pilot) by legislation or a labor union, whereas another may be prohibited by poor vision. Moreover, social restraints upon individual action may be undermined by new conquests over nature, as the tight apprenticeship requirements of m a n y crafts were eroded by advances in technology. And

finally,

neither type of restraint is unchangeable. If the

society places an undesirable restriction upon a group's behavior, w e can seek to change society's policy. If nature places an undesirable restriction upon a g r o u p — f o r example, by introducing a new pest which consumes a crop—we can seek to eradicate it. T h e r e is only one distinction between social and physical restraints upon individual freedom, but that distinction is basic. T h e social restraints—at least the conscious social

restraints—

upon an individual invariably raise moral issues; the physical restraints never do. It is a matter of justice (to others as well as myself, of course) whether society should prevent me f r o m practicing medicine in Philadelphia or—what I naturally

find

peculiar—prevent me f r o m teaching in its public schools. But justice has no relevance to m y inability to raise orchids out of doors. E v e n if w e accept as basic this distinction between the social and the physical restraints upon individual action, we are left with another question: H o w does one add up the areas of social freedom and technological

choice to determine

whether

the

scope of activity of individual m a n is expanding or contracting? 79

SOCIAL CONTROL IN A FREE SOCIETY

If the state and the lesser social organizations deny me access to ten occupations which were open to my father in 1900, but economic progress has created twenty new occupations which I m a y enter, has the effective scope for individual development been increased or decreased? More extremely, does a prosperous, well-educated slave have more scope for individual development than a starving f r e e m a n ? I think I can answer this question, at least to m y own satisfaction, but there are infinitely varied combinations of social restraint and technological progress, and often they defy simple comparative appraisals. I emphasize the different aspects of individual choice or challenge because their joint action is crucial to the judgment of the trend of individual choice and challenge. It is one of m y main themes, in fact, that social restraints have been multiplying rapidly, but the restrictions imposed by nature have been receding rapidly. Let me touch upon one other aspect of individualism before I turn to my main task, the discussion of the scope of choices, social and physical, in recent times. So far I have spoken only of the two kinds of restriction upon individual choice which set the limits upon what a man can do. T h e other aspect of individual choice is what does the man will to do? Is he the supine bearer of century-old habits, or the putty on which current fashions are stamped ? Or is he an independent creature, m a k i n g his own decisions on the basis of deliberate and tolerably rational appraisals of the relevant information at his disposal? I find this kind of question much easier to ask—or, for that matter, to answer dogmatically—when it is couched in general terms than when one seeks to m a k e it specific. A l l men in society are largely creatures of their societies—even the rebel owes his ideas to the society in which he was reared. Even rational behavior is a product of one's society; for example, a generation ago it was permissible to decide an act of equal probability by 80

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? flipping

a coin; now one m u s t use a table of random numbers.

T h e most energetic and i n f o r m e d and intelligent and pendent m a n must accept uncritically

inde-

almost everything

his

society believes to be true, even if he devotes his life to the unattractive role of a promiscuous iconoclast. O n e aspect of this general question that seems to me to be more specific and manageable is this: D o e s it cost relatively more, or relatively less, to depart f r o m the typical patterns of consumption and production in our community

than it did in

former years? Is there a greater penalty, or a lesser one, placed upon the consumer who wishes a non-standard product, or a laborer who seeks a non-standard j o b ?

I shall m a k e a f e w

comments on this aspect later. A n d now that I have spent almost as m u c h time on preliminary matters as a G e r m a n professor, I turn to the question of w h a t is happening to the ranges of individual choice.

2 A vast growth of choice for individuals has followed f r o m the growth of real incomc. A v e r a g e incomc per head was about $650 in 1950, measured to 1957 prices, and it was about $2100 last year. W e want to m a k e some allowance for the fact that the share of income spent by political bodies has risen f r o m less than a tenth to at least a fourth; and however wise or useful these expenditures may be, they are closed to individual choice. But even with generous allowance for collective a n d hence

non-individual

action, the private disposable

resources

per head of population have almost tripled in this century. A s consumer, the individual's range of choice has increased immensely. H e can now travel more widely, read more, eat more, and sleep more. T h e level of income is now such that 81

SOCIAL CONTROL IN A FREE SOCIETY

the brute problems of survival have almost vanished from conscious thinking for most people, and spending has become a challenge—although not yet one which seems overwhelming. But it is as a producer that this increase in wealth has had its greatest impact upon the individual. A century ago the main occupational choice open to most young men was between farming and f a r m i n g . If a profession required long formal training —few did, of course—most people could not afford to enter it. In 1860, only one person in a hundred of college age went beyond high school, and today the fraction is one-third. W e are now sending all our children to school until they have passed onefourth of their lives and a third until they have passed one-third of their lives—an expenditure and investment of resources beyond the dreams of all other times and places in history. Along with the power of the average individual-consumer to buy more of everything, and the individual-producer to enlarge his range of occupational choice, there has been an increase in the varieties of both consumer goods and occupations among which he may choose. In the area of consumer goods this enlargement of variety is almost tautological, for the individual can buy anything he could buy in 1850 or 1900 plus all the things which have been invented since. There is no natural and non-arbitrary basis for classifying commodities, so by a sufficiently fine classification the number of commodities—anywhere, at any time—can be made infinitely large. Yet one feels that there has been a real and large expansion of varieties of consumer goods. For example, a comparison of the 1903 and the 1958 Sears, Roebuck and Company catalogues for categories such as furniture and women's and children's apparel indicates a doubling of varieties. T h e increase in the variety of occupations is equally striking. T h e progressive specialization of production and the introduction of new processes have led to a vast proliferation of crafts for 82

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION?

which diverse talents and training can be used. In fact, one major and yet neglected facet of the development of our economic system is the degree to which we have invented uses for special aptitudes which were useless or even deleterious in an agrarian economy. A fluency in languages, a skill in conciliation, a willingness to tell others how to manage their affairs, even t h e ability to sit for fifty days on a flag pole—these are not traits; which our farmer forebears would have expected to constitute the earning activities of a m a n . So much for the enlargement of the individual's set of choices because of economic growth—an immense, benevolent triumph over what long was nature's niggardliness. H o w have we fared in the area of social choice? I find it difficult to name the areas of economic life in which the state has removed barriers to individual choice, save only its contribution to education, 2 the anti-trust policy, and its minor role in the diminution of occupational barriers to minorities, especially Negroes. In the field of consumption we have had a significant amount of regulation and sumptuary legislation. Putting aside an unsuccessful experiment with prohibition of alcohol, we have regulated the construction of homes, controlled the areas of foreign travel, forbidden the cheaper forms of gambling, set the m i n i m u m level, or rather period, of education, and dictated a m i n i m u m level of insurance. Perhaps one should set on the other side the fact that the bonds of matrimony have been converted into preferred stocks. In the field of production we have erected licensing barriers to innumerable occupations, some frivolous beyond belief. W e have told farmers how much to produce, truckers how much to charge and what ' Which is not what it seems to be on the surface. The major part of public education has consisted of the public provision of education at the cost of the parents of the educated, although some considerable amount of income redistribution was also present. 83

SOCIAL CONTROL IN A FREE SOCIETY routes to follow, merchants how not to advertise, retailers what minimum prices they must observe, landlords how often to decorate, security brokers how much truth to tell, and so on. O f course, some of the new restrictions placed upon individual choice have been highly expedient or urgent. It is inconceivable that the greatly increased density of population and interdependence of men should fail to call forth additional activities of the state, and it is inevitable that a rich democratic society will insist upon ameliorating conditions which a poorer society cannot afford to notice. It is also certain that not all of these additional activities are either necessary or desirable, though

an

individual appraisal would be beyond both my powers and wishes. T h e fact is that the state has significantly curtailed individual choice in many areas, and the graver fact is that this curtailment has not been treated as a serious cost, to be avoided as much as possible. Private organizations have also expanded their control. T h e labor unions have spread from a few elite crafts to roughly onefourth of the labor force, and in a considerable fraction of cases have acquired the power to exclude people from their occupations or industries. T h e entrepreneurial monopolies have not fared so well; they are far from negligible but there is no evidence that they have been able to extend their share of control over production and pricing processes since the beginning of the twentieth century. T h e role of organizations in our economic and political life has been so publicized that I would like to enter a few words of scepticism. W e are told that the influences of the farmers' block, organized labor, and similar pressure groups are of major importance in the formation of public policy in economic matters, and that this is a great modern change in the methods of government. O n the one hand, it seems to me that there is nothing modern 84

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? about the influence of particular economic groups upon public policy. L a r g e economic interests in a democratic nation

have

always been considered in the formulation of policy. I do not recall reading

of a powerful

N a t i o n a l Federation

of

Cotton

G r o w e r s in the period before the Civil W a r , but legislators took noticeable account of K i n g C o t t o n . T h e traditional task of the politician, indeed, has been precisely to discover the wishes of. his constituents. O n the other hand, the f o r m a l organization of such groups' surely does not alter radically their impact upon policy. It is true that a cohesive group, continuously

represented

by

able

people, can m a k e its wishes m o r e articulate, and by its skill may even deceive the legislator as to the urgency of its desires and the breadth of support for t h e m . B u t I presume that the experienced politician is fully aware of these techniques,

and

n o w looks behind the façade of organization to the considerable heterogeneity o f the interests o f the m e m b e r s . It is absurd to believe that a f a r m or labor or industrial leader can control the votes of his members. H e can control some of the

campaign

contributions, and this is a source for serious concern; but it does not give h i m dominance, f o r there are m a n y competitors for influence. The

upshot of these r e m a r k s is not that organizations,

distinct f r o m the citizens w h o compose them, are

as

powerless.

B u t it does seem probable that their influence is m i n o r , and in any event this influence has not been isolated or demonstrated to be substantial. T h e net balance of the natural and social increases and decreases in the ranges of individual choice so far considered seems to m e clearly favorable: the range o f choice has widened f o r the individual as both consumer and producer. T h i s j u d g m e n t , however, is appropriate only to the U n i t e d States and

highly

similar economies such as C a n a d a ; in most o f the world 85

the

SOCIAL CONTROL IN A FREE SOCIETY triumphs over nature have been much

smaller and the ex-

tensions of social restraints have been greater, so the range of individual action has often shrunk tragically in the twentieth century.

3 I have spoken of the range of occupational choice which is open to the individual—how it has expanded with growth of income, increased availability of education, and the growth of economic knowledge and specialization, and how it has contracted under the extension of governmental and labor-union controls.

To

many

this

general

conspectus

will

seem

an

irrelevance, and to some a mockery. F o r , they will say, what matters it that Jones can work in a Detroit automobile factory, or a Cleveland steel plant, or a Los Angeles aircraft plant—he is still a hired hand, doing his routine, prescribed work. W h a t matters it, for that matter, that Smith can be an executive in an insurance company, an industrial concern, or a federal agency—he is still a cog in some corporate machine. T h e entrepreneur—the independent proprietor—is the prototype of individualism, and he is going fast. From

the viewpoint of the

gressiveness

of

the

economic

flexibility, system,

efficiency, and

the

independent

propro-

prietor has played a role of great importance. But from the viewpoint of individualism, I have some doubts that we should be undiscriminating in our admiration of the entrepreneur and snobbish toward hired hands or hired brains. T h e farmer is the classic figure of small-scale entrepreneurship, and most of the farmer classes of history have been darkly ignorant,

bound

tightly by tradition, and hostile toward everything fresh or new. T h e word "peasant" carries diverse connotations, but seldom 86

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? ones of envy. Still, I do not wish to depreciate the importance or the admirableness of a truly independent entrepreneur, nurturing a violent ambition of great social utility under proper institutions, and acting with courageous vision and self-reliance. T h e r e is a question, first of all, whether the independent person has played a declining role in our labor force. A study almost two decades ago

by S p u r g e o n

Bell provided

figures

which suggested a radical decline in the proportion of the labor force that was self-employed—a fall f r o m 36.9%

in 1880 to

18.8% in 1939 and, one m a y add, to about 1 7 3 %

in 1950. 3

Bell's figures are quite crude; when his estimates for 1939 are compared with the 1940 census, which was not available when he wrote, they err by 15 to 3 0 % for every category of entrepreneur, and no corresponding check can be m a d e earlier

period. Still, accept

them

broadly;

they

for

the

support

no

inference of a radical decline of the entrepreneur. T h e error in inference is to treat on a parity the decline of the independent farmer with the changes in other

entrepre-

neurial classes. I do not think the decline of the f a r m e r represents a curtailment of individual choice—in fact it represents an increase of choice. W e m u s t recognize that at every age most people do not wish to be independent; they are tormented by decision, bewildered by novel opportunities, confused by strange information, discouraged by early adversity, frightened by great prospects, prostrated by great risks. In an agrarian society they are independent only because of the compulsion of legal institutions and the economic character of agriculture—in the A m e r i c a n case, primarily the inefficiency of large-scale enterprise. F o r them the m o v e to the city allows surcease f r o m the independence that was thrust upon them. T h e urban economy, with its infinitely richer variety of call3 Spurgeon Bell, Productivity, Wages, and National ings Institution, 1940), pp. 10, 21 ff.

87

Income

(Brook-

SOCIAL CONTROL IN A FREE SOCIETY ings, still has a very large sector of self-employed occupations, containing a little m o r e than a tenth

(10.6%)

of the non-

agricultural labor force in 1950. Bell's corresponding figure for 1880 is 1 4 . 4 % ; it would be higher if the earlier

figures

were

strictly comparable. O n the other hand, a m o n g male workers, whose numbers have g r o w n m u c h more slowly than women workers, the percentage of the self-employed outside agriculture is 12.8%. T h e r e w a s probably a modest decline in the role of the independent worker over the seventy-year period, but even the modest decline, it should be emphasized, ended about 1930, and there has been a relative increase of the self-employed in the last two decades. T h e future is almost as interesting as the past, and to the economic statistician scarcely less well-known. C a n we say anything of the prospects of the small enterprise? W e can assert one broad trend: there has been a m a r k e d secular increase in the relative importance of those non-agricultural industries in which the scale of enterprise has been relatively small. Retail trade, the home of small enterprise, has prospered amazingly, a n d so too have the professions, amusements, personal services, and real estate. N o t all the trends favor the small

enterprise—govern-

ment employment, for example, is also g r o w i n g relative to the urban labor force—but on balance the industries characterized by small firms have been g a i n i n g g r o u n d . T h e r e is no reason to expect a reversal of this trend. Manufacturing is often singled out for special attention, although its particular significance is m o r e commonly proved by a nice choice of w o r d s (basic, dominant, bellwether, or, in the best circles, ideal type) than by a r g u m e n t . Especially f r o m the viewpoint of

individualism

the particular

industrial

location

of an entrepreneur seems of quite minor importance. B u t even within manufacturing, it is not obvious that the growth of the 88

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? efficient size of enterprise has been so rapid that the businesses must languish in lacunae between giant

small

industrial

concerns. I have recently had occasion to estimate the m i n i m u m efficient size of enterprise in m a n u f a c t u r i n g industries—the smallest size of company, measured by total assets, that could survive in these industries at mid-century. O f the forty-three industries surveyed, nine required total assets ( b o r r o w e d or invested) of $100,000 or less; sixteen m o r e required assets of up to one million; and the remainder required five million and upward. I n terms of econ o m i c importance, the industries that required least capital were generally

large—apparel, textiles, footwear, various foods

and

beverages, furniture, and concrete products are examples. N o comparable study can b e made for a m u c h earlier period, so w e do not k n o w the trend of m i n i m u m efficient size relative to average income or wealth. S o m e industries which were once easy to enter, such as automobiles a n d drugs, are now closed to small entrepreneurs; and some that were o n c e difficult to enter no longer a r e — a l u m i n u m fabrication is an example f r o m m a n u facturing but a m o r e striking e x a m p l e is freight transportation, where the truck is replacing the freight car. Since 1940, the n u m b e r of businesses in m a n u f a c t u r i n g has been g r o w i n g m o r e rapidly than the population. T h e c o m m o n charge that m a n u facturing is closed to the small m a n is still another of

the peculiar tendency

of

so m a n y

example

people to picture

the

typical A m e r i c a n enterprise as an average o f General Motors, U n i t e d States Steel, and D u P o n t . T h e crucial factor in the future of small scale enterprise, I believe, is whether able m e n wish to o w n their enterprises. If they do, they

will

contrive

technologies

organization which allow a small

and firm

forms to

of

flourish,

industrial for

nologies and organizational types are generally found 89

techwhere

SOCIAL CONTROL IN A FREE SOCIETY they are sought—the alchemy industry is not typical. L e t us turn, therefore, to the question : D o m e n want to be independent ?

4 Is this an age of g r o w i n g conformity? So many commentators have told us it is, and they have told us with such assurance, that it calls for some courage to discuss the question when one has neither high confidence in his views nor an instinct to conform with the fashionable view. Consider first the consumer. O n e difficulty with our inquiry is that there is no definite m e a n i n g to conformity, or to its opposite, diversity. Variety is a concept of many

dimensions.

Suppose that my grandfather and yours each had one suit, tailored to his personal tastes, but that you and I each have five suits, and my five suits are identical with yours. Variety has clearly increased if it is measured by differences in my appearance on various days or by differences between

your

appearance and mine on an average day; but variety has diminished relative to whatever personal differences we have in our tastes for clothing. O n e force that has worked for conformity, in the sense of lesser adaptation to individual tastes, is the growth of

mass

production. W h e n food is prepared to an increased degree in manufacturing,

there

is

necessarily

less

variation

in

meals

a m o n g homes. W h e n a Levittown or a Park Forest throws up five thousand houses, there is necessarily less adaptation to the tastes of each owner. It is surely much cheaper to adapt a product to the individual's tastes when the commodity is m a d e to order. O n the other hand, the gains f r o m standardization, and hence the cost of diversity, should not be exaggerated. T h e American economy is so large that one can produce efficiently a hundred 90

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? styles of shoes, or twenty-five types of ranch houses, and very little would be saved by concentrating upon fewer varieties. T h e second main force m a k i n g for conformity, w e are told, is the pressure of the mass media, including television, movies, and periodicals. The

advertisers in

particular

receive more attention

than

compliments. Yet the effect of a more comprehensive and rapid communication network is surely not simply to increase conformity. Of all the traits of the American consumer, the most striking in its contrast to most other nations and times is his eager acceptance of new products. I suppose that one could argue that conformity can be volatile, so one is always in the throes of a m o b psychology, but fundamentally it seems improbable that a society of consumers notoriously open-minded toward new products has a fervent dislike for being different, especially when it is inherent in the process of continuous technological change that some goods are always different f r o m others. I have no doubt that these communication media have hastened the death of unfashionable and obsolete commodities by the speed and thoroughness with which they communicate the availability of new commodities, but this is hardly induced conformity. Moreover, the mass media are not operated by a single person for a single purpose. T h e advertisers are highly competitive with one another in their appeals for the consumer's dollar, and they simultaneously implore us to travel and to stay at home, to save our way and spend our way to prosperity, to drive a car and own a boat, to become an engineer and to join the Marines. O n the other side, the growth of income has of course increased the possibilities of diversity enormously. A n d we m u s t not forget that mass media are not the only source of social compulsions to c o n f o r m : rural sections and small towns have strong proclivities to censorship, whereas the city has traditionally 91

SOCIAL CONTROL IN A FREE SOCIETY been characterized by greater tolerance toward, or perhaps indifference toward, individual peculiarities of behavior. T h e net effect of these factors, and of other even more ambiguous ones such as increased education, which has probably lightened the heavy weight of tradition, is impossible to assess with any objectivity at the present time. But whatever the judgment of the wiser and more thorough students who will eventually translate the question into one capable of persuasive answer, I am prepared to wager some of my children's earnings that the change in conformity will have been modest. When we turn to the individual as a producer, the charge of conformity undergoes a change of character. It is no longer complained that all men tend to follow the same occupation, which would of course be palpably absurd, but rather that they strive to imitate a single pattern of behavior. T h e executive classes in particular are said to be becoming a set of grayflannelled robots: well-mannered, efficient in a pedestrian way, deliberatively non-imaginative, setting security above adventure —polished cogs in the organization machine. Is the organization man really here in numbers ? I cannot pretend to that wide acquaintance among business executives which would give my answer to this question some authority. But in the corporations in which I have spent several decades—and I remind you that originally the word corporation meant university—the admiration of and practice of conformity seem tolerably well under control. Despite the fact that life tenure in the academic world should have an appeal chiefly to sedentary and timid people, the universities have a drunkard's thirst for originality and freshness. I have yet to hear a prospective appointee to a university post described as a loyal member of the team, except by someone opposing his appointment, whereas to say that he is seminal is to silence half the opposition. Of course there is ample conformity among academicians. 92

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? If it is k n o w n that a m a n is a professor, one can improve substantially his prediction of that man's political and social and ethical views, and even o f his attire. It would be excessively bold, however, to say that this homogeneity is as great as it was in earlier days. Indeed, one can proposition

that

although

the

find

various

much

support for

classes

in

society

the are

becoming less distinctive, the diversity of behavior within each class is increasing. M y scepticism of the general charge of conformity, however, rests less upon the belief that the business world may have the intelligence to resemble the academic world than upon the logic of business. I n the long run, the business world will encourage the development of the so-called organization m a n only if this type of m a n is most useful to the efficient conduct of business enterprise. T h e business world does need some circumspect bureaucrats. I n a very large company, as in every large social organization, there must be men who intelligently but uncritically obey orders. A n d to the extent that very large enterprises are m u c h

more

c o m m o n in the A m e r i c a n economy than they were a century or more ago, the need for this k i n d of m a n has g r o w n . I doubt that it has grown

much

because the share of the labor

relatively

in

force w o r k i n g

rcccnt in

very

But

times, large

enterprises has not g r o w n rapidly in recent times. B u t the primary task of business enterprise in the A m e r i c a n economy is not to perform routine tasks well. T h e essence o f successful enterprise is the early and clear recognition of the next change in the company's m a r k e t conditions; the intuition to pursue promising lines o f exploration of products, processes, and markets; the ability to act decisively on incomplete information about foreign governmental policies and distant m a r k e t s — i n short, the essence of successful enterprise is enterprise. Joseph Schumpeter

characterized

modern 93

capitalism

as a gale,

and

SOCIAL CONTROL IN A FREE SOCIETY this was no doubt an overstatement because many an industry has been becalmed, but it is a m u c h truer picture than that of efficiently conducted routine. E v e n if a corporation were to decide that its position is such that it could prosper with a well-balanced team of officers eager to submerge their personalities in the group effort, the

firm

would not prosper. It w o u l d do the obvious things well, but business

has

many

more

surprises

than

a

who-done-it;

the

m u r d e r rate against profits is m u c h higher than against m e n . S o long as this is the case, the business community is going to seek out and to pay best those people who have the imagination and self-confidence to cope with the unending challenges t h r o w n up by a rapidly progressing economy. I should add that the business of f o r m i n g great issues over which the A m e r i c a n public is persuaded to become deeply concerned is also a highly competitive one. If m y analysis of the nature of competitive industries is correct, those creators of issues w h o play competently the g a m e of pointing to conformity will soon lose out to the entrepreneurs w h o find a newer, and I hope an even less serious, cause for g l o o m .

5 Is non-conformity a virtue? M u c h of the lament over g r o w i n g conformity seems to rest upon what m i g h t be called the ideal of bohemian behavior. A suitably small n u m b e r o f bohemians is no doubt an interesting and desirable element of the good society, but the essence o f real individualism surely does not lie

in

deliberate non-conformity. I t is cheap and easy to question every traditional value—a college sophomore often goes through this stage. Indeed this k i n d of revolt tends to be painfully stereotyped. T h e r e is a deadly m o n o t o n y about the bearded young intellectual 94

PROMETHEUS INCORPORATED: CONFORMITY OR COERCION? w h o considers Weber's music old-fashioned, despises economic success, and has a cocktail-party fluency only in subjects which will appear for the first time in the next edition of the encyclopaedias. Unreasoning diversity is senseless. If, to parade m y independence of thought, I challenge Pythagoras' theorem or examine the nutritive balance of a cannibalistic diet, I am simply a silly creature. O r if I show m y independence by praising racial intolerance, I have confused independence with moral or scientific obtuseness. T h e only admirable individualism is that which, to the person himself, is rational and significant. It is of negligible importance whether we all drive the same kind of car, and no occasion for lament that w e all use the same kind of air in the tires of the car. It is of crucial importance that we preserve the dignity and inexhaustible fertility of independent men. T h e economic system, I have argued, has done magnificently its share by giving the individual great opportunities f o r development; it has provided ample resources to educate him, it has opened to him immensely varied occupations, and it has given him the leisure to act with deliberation and information. T h e social system, and especially the state, have been less considerate of the individual's freedom, which is increasingly being treated as less important than what others deem to be his welfare. T h e prescriptions of prudent conduct and the prohibitions upon unpopular activities have multiplied. G r a n t the need f o r more regulation in an urban society, grant the need to regulate the furnace and the rifle and even the health of a m a n w h e n many others may suffer f r o m his carelessness, grant even that every function undertaken by the state is a proper function—the fact is that almost every function can be performed with a respect f o r individual choice, but this respect is rapidly

diminishing.

T h e releasing of men f r o m public bondage is apparently not a rewarding task. 95

SOCIAL CONTROL IN A FREE SOCIETY This declining respect for individual freedom is not an inevitable consequence of the trends of social and economic life. It is true that, at a given level of income, an increasingly interdependent society requires increased governmental control over social relationships. But it is also true that, given the degree of interdependence, the need for social controls declines as average income rises. T h e wealthier the members of a society, the less the need for enforcing minimum standards and for fearing short-sighted behavior. It is not necessary, when families can live comfortably without the earnings of their children, to regulate in meticulous detail the summer labors of high school students—the family will have a proper regard for their welfare. It is not necessary to dictate that the home of such a family have adequate space—the family will have an adequate desire to possess it. T h e rise of income can be the great liberator of man. A n d so I conclude that conformity—the deliberate suppression of one's personal tastes to secure the approval of the group—is not a basic and growing problem, but that coercion—the compulsory adherence to approved patterns of behavior—is a basic and growing problem. T h e excitement that has been generated over the issue of conformity will have served a great social purpose if it awakens public attention to how often and how unnecessarily we have encroached upon the domain of the individual.

96

Law and the Limits of Individuality Willard Hurst MEN

EXPERIENCE L I F E ALONE AND TOGETHER, THE TWO

inextricably

ELEMENTS

intertwined. T h e i r patterning makes the

human

quality of life. So far as circumstance casts a man into solitary existence or fuses him into a driven mass it tends to reduce him to an animal. L i f e took on human dimension only as men enlarged both consciousness of self and consciousness of group as bearers of richer, more subtle and creative experience. But the growth of ideas and feeling through interplay of privacy and association could not go far without overt organization to give authoritative definition to values, to implement them, and to provide the continuity in behavior without which men must constantly spend their limited wit and energy in redoing the most elementary tasks. T h i s is why, once past the most rudimentary scale and forms of human association, the contriving of legal order bulks so large in history. T h e r e are other institutions which define and implement values and provide continuity. Indeed, compared with family, church, school, and job, the influence of law has probably been secondary but critical in most societies. T h i s critical marginality of law stands as a fact. In our own legal tradition it stands also in some senses as a value; much in our idea of constitutional government adds up to the proposition that the law's role should be limited if legal order is to be consistent with a decent way of life for 97

SOCIAL CONTROL IN A FREE SOCIETY

the people who live within it. Even so, in our kind of social tradition as well as in others, the law has a character distinctive to it among institutions of order. L a w refers to the agencies which possess and to the values supported by the legitimate monopoly of violence in a society. Ordinarily only a policeman may go armed. A court's order m a y be enforced at bayonet-point. T h u s law stands in the background of all other allocations of decisionm a k i n g or pattern-shaping power. Whatever command individuals and groups outside legal agencies assert over affairs must be asserted consistently with some over-all distribution of power recognized in law. W h a t law does in defining and affecting the relation of the individual and his society thus enters inescapably into the quality of life. Likewise these are functions of law which give it its ultimate meaning to men. It is a familiar proposition in our constitutional doctrine that the individual and society each has valid claims upon the other, though it is also true that w e recognize claims of society as ultimately valid only so far as society enlarges the quality of individual life. It is not so familiar to observe the complication of personal and impersonal factors which enters into the shifting balance of individual and social values. The personal tensions are plain enough. W e most easily see the drama of conflicts of w i l l and feeling among identifiable actors: the accused and the public prosecutor, the ordinary man and the special interest group, the machine man and the reformer. But there are also structural and functional requirements for the existence and health of society. These requirements lay demands upon individuals. Likewise, individualism is sustained not just on will and emotion mobilized in crisis but perhaps more on institutionalized procedures and patterns of judgment. Because these are considerations which set the frame for more particular matters I wish to talk about, let me take time for three specific examples from American constitutional law. 98

LAW AND THE LIMITS OF INDIVIDUALITY Perhaps the most dramatic juxtaposition o f the values our law places on the well-being of the individual and of the society is contained in Section 3 of Article I I I of the Constitution of the United States : T r e a s o n against the U n i t e d States, shall consist only in levying W a r against t h e m , or in adhering to their E n e m i e s , giving them A i d and C o m f o r t . N o Person shall be convicted of Treason unless on the T e s t i m o n y of two W i t nesses to the same overt Act, or on Confession in open Court. O n the one hand, the law here asserts that organized society is entided to m a k e certain ultimate claims for its existence, against the challenge of the individual. Y e t , in the same declaration the law limits the claims of the society in two ways that help guarantee realms of autonomy for the individual. T h e state m a y charge as treasonable only two kinds of conduct—aid to enemies in foreign war, and participation

in domestic insurrection. It

must

show m o r e than a treasonable intent in these respects; it m u s t prove that intent moved into overt act. T h u s the Constitution limits the substantive scope of the offense of treason so that this dread charge may not be used as a weapon simply of political combat or of thought police by those in official power against the political freedom of citizens to t h i n k for themselves, to inquire and discuss, and to seek peaceably to change the government. I n addition to these limitations o f substance, by its insistence on proof of an overt act by two witnesses, the treason clause asserts that even in so basic a matter as the security o f the state, the state m u s t observe fair and decent

procedure

and

must bear

the

burden of proof, that individual life m a y be lived in some substantial security from official oppression. I n the frame of the treason clause social and individual claims appear in unusually dramatic relief. S i m i l a r confrontations 99

of

SOCIAL CONTROL IN A FREE SOCIETY values run through the law in less highly charged circumstances but with no less significance. My second example shows private individuals confronting the will and feeling of other particular individuals holding official power. In 1939 the United States Supreme Court decided CIO v. Hague.1 T h e mayor of Jersey City forbade trade union organizers to speak on behalf of their movement in a public place in a peaceable manner. The mayor said that there were people in his town who did not like unions or union organizers, and who were likely to throw bricks at the trade unionists if they did try to speak. His job was to keep the peace, he argued, and hence he was entitled to prevent public speaking which was likely to be attended with a riot. T o this the Supreme Court replied in effect that order is not an ultimate value in our kind of society. More important is the question, what kind of order, and for what interests. If there was danger that people would throw bricks at a man who wished to speak peaceably in a public place on matters of public interest, it was the job of the police to arrest the brick thrower and not the speaker. The state exists to keep order not as an end in itself, but as a means to enable individuals freely and peaceably to put forth their powers and to grow by creative assumption of responsibility and creative exchange with others. In my third case—liegeman Farms Corporation v. Baldwin, decided by the United States Supreme Court in 1938—claims of an individual met more impersonal claims based on functional requirements of a good society.2 Here a wholesale milk dealer protested as arbitrary and unreasonable the terms on which a state regulation said he might buy and sell milk. He said that he could not operate at a profit within the terms the law set, and 307 U.S. 496 (1939). '293 U.S. 163 (1938).

1

100

LAW AND THE LIMITS OF INDIVIDUALITY that this in itself was enough to show that the regulation deprived him of his property without due process of law. T h e law was condemning him either to bankruptcy or to g o i n g out of business. A p p e a l i n g as this plea may sound at first hearing, it was readily rejected by the Court, and, I think, properly so. A m a n may not procure a court to nullify a solemnly

enacted

policy of the state simply by showing that it will cost him money or other detriment to comply with it. F o r the court to rule so would be to rule that the community must pitch all of its measures in the general interest to the level at which policy will not cost money or other burden to the least efficient or the least careful or the least conscientious member of the g r o u p . W e m u s t pay for the benefits we get f r o m civilized intercourse. If the legislature could reasonably find that the substantial continued production and flow of milk f r o m f a r m to city was important to the economic well-being and the health of the community as a whole, and that the continuity of supply was threatened by market conditions which the legislature could reasonably believe to require some regulation of milk prices, then it was entitled to take reasonable action in the general interest. So long as the legislature was not arbitrary, it was entitled to determine that general interest required that the law set a floor and a ceiling to market practices in the milk business, and in effect thereby to determine that if a dealer could not run his business so as to live within these reasonable limits, he was not a dealer whose presence in the market was consistent with sound community standards, and he must get out. S o if a m a n can m a k e money only by employing young children, or by polluting streams with untreated industrial waste, or by putting workers to the risk of ung u a r d e d machinery, the state is entitled to say that this individual claim to do business is so inconsistent with decent m i n i m u m standards of social living that it cannot be allowed. M e a n i n g f u l individualism, in short, involves association on terms which do 101

SOCIAL CONTROL IN A FREE SOCIETY not make the association an exploitation or violation of the individuality of some of the associates for the naked benefit of others. I have been dealing thus far in some very large terms. It is time that I undertook to examine more particularly the contents of at least one of them. I believe we know well enough what we mean when we speak of "society"; for the purposes of this essay I have made the most important qualification when I note that law is but one of the institutions out of which we weave a social fabric, and that its functions are at once limited and yet of basic, distinctive importance. W h a t do we mean, though, when we speak of individuality? Individuality refers to certain ways in which men learn to meet life so as to find meaningful identity for themselves within experience. By individuality I think we mean, most obviously, the sense of separateness or aloneness—of a privacy both inescapable and in a measure insurmountable. W e put a corollary value on this sense of privacy, for it means to possess a private preserve within which a man may hold himself accountable only to himself and to his own sense of meaning for his judgments and his satisfactions. Herein we deal with matters that deeply color the emotional quality of experience. Less obvious, but actually primary to the quality of individuality, is awareness—awareness of being in relation to other beings and in relation to things and situations: active intelligence. And, again, individuality involves the ability, or at least the belief that one has the ability to exercise some control of experience. Corollary to this, we derive valued status or dignity from the conviction that we have some capacity to affect what happens to us. Individuality, that is, involves a factor of will. Separateness, awareness, and control are—in short —what I mean by "individuality." T h i s definition omits the idea of a sense of responsibility to an externally defined code of morals by which the uses of individuality may be measured. I think it is proper to omit such an element 102

L A W A N D THE LIMITS OF INDIVIDUALITY

from the definition of individuality. In itself, and by a social measure, individualism is amoral. The sense of individuality m a y be put to better or to worse ends. Indeed, a major problem of achieving a decent balance of individual and group is the problem of guiding individualism into some measure of objective moral expression. T h i s essay speaks of the relations of individual and society with prime emphasis upon history. There are reasons special to the subject why this is helpful. Let me emphasize one. Values born from the creative tensions of individual and society are values whose over-all effective force depends upon the range and depth of cumulative experience they express. W h e n the moment of decision is at hand, when real costs must be paid and high risks run, the operative value men put on the qualities of life now felt as "individual," now as "social," derives from no one-dimensional logic, or bloodless reckoning of utility, but from will, mind, and feeling seasoned and charged, for more or for less, by the past of those who decide. Men have learned their humanity slowly. Their hold on it is precarious. Save in the perspective and dimension of time, we cannot define or realistically measure the energy and staying power of the worth men put upon distinctive aspects of their individual and their social experience. Only by our best reckoning of the credits, debits, and defaults of our past can we soberly judge what accommodations we are capable of m a k i n g when inevitable change presents new challenges. T h e living always carry the heavy burden of choice among awesome alternatives. The values our legal tradition assigns to individuality run back to the philosophers of Greece. In the mid-20th century United States, however, we confront events and move in currents which m a k e it peculiarly difficult to hold to old values and wisely to enrich and implement them in terms relevant to our situation. Our problems stem largely f r o m aspects of 19th century experi103

SOCIAL CONTROL IN A FREE SOCIETY enee. I wish especially to address myself to certain distorted heresies of individualism created out of that 19th century experience. It was then that our national growth proceeded at a range and pace which overwhelmed imagination and will. In large measure events ran away with us. W e were in any case bound to be preoccupied with the immediate practical tasks of opening up a fresh continent. O u r tradition and training did not incline us to philosophy or to large-scale planning. It fell easily into our way of life on this new continent to erect the rule of thumb into a philosophy. In this context, with myth and sentimentality, our 19th century living diluted the political inheritance we had from our classic late 18th century experience of constitution-making. In result we learned to belittle the traditional worth assigned to individualism, and to neglect definition of the objective moral responsibilities that should attach to the law's protection of individuality.

2 Individuality, I suggested, resides in awareness, control, and separatencss. T h e first ingredient of individuality—awareness— means perception of oneself both as part of a situation and as an observer and critic of it. T h i s awareness consists both in idea and in feeling. As idea it means knowledge of process, of the forces that hold affairs in a given state or bring new states of affairs into being; it means consciousness of oneself as acted upon by people and things. As feeling, awareness means empathy. Both in idea and in feeling awareness can exist in many degrees from simplicity to sophistication. Indeed, this is the sector of individual experience in which lies the greatest opportunity for personal growth and development. W h a t has public policy to do with this aspect of individuality Ρ 104

LAW AND THE LIMITS OF INDIVIDUALITY T h e first contribution our law has made to developing this element of awareness in individuality has been to leave it alone. Experience is infinite. N o one man nor any group of men can meet it all or see all of it. Each in some degree, therefore, may encounter or perceive some facet of the infinite possibilities which no other does in quite the same way. Potentially each thus may add for himself and perhaps for others some new dimension to life. But to do so each must sharpen his eye and stretch his mind and sympathies by active encounter with the unknown possibilities of himself and his situation. Public policy has encouraged men to enlarge their awareness of life by going out to meet it, freely, without having to ask official license and without penalty of law for the mistakes they may make or the cost they may cause, so long as they act with good faith and prudence. In some respects the pertinent law is very old. This is so, for example, of the general rule that a man may not be convicted of crime unless the state shows that he acted with a guilty mind; that is, with purpose to bring about consequences that the law forbids. T h a t this should be the rule, Mr. Justice Jackson observed for the Supreme Court of the United States, "is no provincial or transient notion," but an idea "as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." It is, moreover, a concept "congenial to an intense individualism" and hence "took deep and early root in American soil."

3

T h e bulk of the pervasive legal doctrine which favors the individual's freedom and security of venture has more modern origins than this classic rule of the criminal law. Most of this doctrine developed in significant relation to the rise of the middle class and the accompanying extension of the market as an institution for broadly dispersing power. T h e 'Morisette

17th and

18th

centuries

v. United States, 342 U.S. 246, 250, 251 (1952). 105

SOCIAL CONTROL IN A FREE SOCIETY brought to classic definition the Anglo-American concept of constitutional government as government which must respect broad preserves of initiative for private will and thought. This is a good part of the substantive content of the ideas of due process and equal protection of the laws—that in its authoritative definition of values the law shall be general in its categories and distinctions; that the making of special and unique value choices lacking general ("public") significance is the proper sphere of private and not legislative action. L i k e meaning attaches to guarantees of free speech, church, and press in the Bill of Rights. T r u e , these guarantees were valued partly as assurances of a healthy political balance of power, and in this aspect pertain only indirectly to individuality. But they express also belief that men can realize their humanity only by freedom to test their creative powers of mind and will and to grow in responsibility by sharing responsibility for what happens to them. Especially significant of the importance attached to private initiative has been the disfavor constitutional policy has shown toward censorship or prior restraint upon publication of facts, ideas, opinions, or of the artist's perception of his world. More complicated, but expressing analogous policy, has been the history of the law's disfavor toward requiring official licenses to engage in economic venture. Generally we require such a license only of those who would engage in the business of the public utilities, such as railroads or electric power companies. Significantly for our present subject, public utilities deal in staple services more than in innovation, provide framework facilities for the infinitely diverse activities of others rather than themselves generating variety, and require such massive resources and such degree of monopolistic position efficiently to do their work that within them power of decision exists and is abused bureaucratically rather than personally. Given their character, insistence upon public utility licensing does not subtract from but rather supports the law's 106

LAW A N D T H E LIMITS OF INDIVIDUALITY

favor toward interests of individuality, by concern for services essential to a wide diversity of other effort and experience. On the other hand, developments of the last 75 years show that this is an area of creative tension in the growth of public policy. There was a period when constitutional law indicated that there was a closed category of public utilities, to which alone the state might apply its licensing and regulatory powers. But the facts of institutional growth more and more denied the sense of this. Bureaucratic decision-making marked wider areas of private economic action, in matters of a scale and functional importance to fix the framework for diverse other activities. Urban living became the dominant pattern. This spelled increasing interlocking of processes on which life depended, in turn multiplying the number and variety of relations which could not be disturbed without damaging the lives of many individuals. Consider, for example, the law and the milk market. T h e supply and distribution of milk was not a public utility in the late 19th century sense of the term. But by 1934 the milk business had a practical importance to entire rural economies and to the health of great urban areas such that its efficient continuance was a condition in the framework of the many-sided life of country and city. Because seriously disturbed market conditions threatened to interrupt the production and supply of milk, N e w York's legislature undertook to regulate entry into the business and the range of prices that might be charged for milk at various stages of marketing. In Nebbia v. New Yor\ the United States Supreme Court held that this might be done. 4 There was no immutable category of public utilities which alone might be thus regulated; what counted were facts of human interdependence and not labels. The development of constitutional policy has thus been to keep a brake on legislative authority to license speech, but to 291 U.S. 502 (1934). 107

SOCIAL CONTROL IN A FREE SOCIETY

acknowledge more power to licensing framework economic activity. Communication is vital to unfolding individual awareness. Large-scale organization has become vital to supply the material base of individual action. These facts give consistency to the constitutional doctrine I have noted in terms of the values of individualism. But to say that the legislature has power does not of course mean that it must use it. Over the sweep of the whole economy, our legislative policy is to make licensing the exception rather than the rule. The presumption of 20th century legislative practice is against direct imposition of licensing on entry into business or the making of business decisions. But the 20th century has seen increase in regulations which impose sanctions after men make decisions; this is especially felt through the weight of taxation which creates a kind of de jacto licensing of business decisions which cannot be safely made without tax clearance, certainly not without close weighing of tax consequences. This pattern of freedom for private initiative under constitutional and legislative policy has its counterpart in common-law doctrine which was firmly set even earlier in the 19th century. Contract law supplies one instance. At common law every contract is presumptively valid—absent an unlawful purpose or unlawful means apparent on its face—and the burden of persuasion rests on him who asks a court to rule a given contract unenforceable as against public policy. Property law and the law of civil wrongs furnish other examples. If I cause harm to another by what I do or the way I use my land, nonetheless in ordinary circumstances I am not liable therefor unless the damaged person sustains the burden of showing that I acted carelessly or with intent to harm him. These doctrines do not form the whole picture. Other familiar rules express the law's concern for the functional needs of great impersonal institutions or patterns of relation necessary to the coherence of society. Whether parties 108

L A W AND T H E LIMITS OF INDIVIDUALITY

have made a contract and what their contract means thus are determined not by the subjective notions of the parties, but by what reasonable men would take to be the import of what the parties did and said. Civil liability for negligence depends generally not upon the peculiar personal qualities of a given defendant but upon whether a court or jury judges his conduct to measure up to that of a reasonable and prudent man in the circumstances. In the objective measure of contract liability and in the prudentman test of liability for harm, as also in the obligations imposed on public utilities, law pays its tribute to the fact that individuals need a reliable social framework within which to put out their power. The importance of reasonable expectations is here the main theme of policy. In the general insistence in criminal law on proof of a guilty mind, in the disfavor of constitutional law and legislative policy toward licensing communication or the generality of economic activity, in presuming the legality of contracts and casting on the injured party the positive burden to show cause why he should recover damages at law—in all these ways public policy expresses a strong favor of action and the initiator of action. Therein law attests our belief that men should be encouraged to seek experience, to plan, contrive, and venture, because therein they extend their awareness and capacity to perceive their creative opportunities. However, our 19th century public policy was not merely that law should leave people alone to learn what they could do on their own. It was equally our belief that we should use law, and resources mobilized by law, positively to help people show what they could do. Our working philosophy, in other words, was much more complex than the simple, straight-line belief in laissez faire, which it has sometimes been pictured to be. W e believed in the positive use of either official or private power where it promised multiplier rather than merely one-to-one effects through extension of men's creative energies. Productivity—primarily of 109

SOCIAL CONTROL IN A FREE SOCIETY

course economic productivity, but other kinds too—was seen as a self-evident end value in this society. This was an emphasis natural to a people whose theatre was an immense unopened continent and whose growth was borne on the flood tide of restless, mobile middle-class development. In part we were ready to use law to foster private action for reasons whose primary reference was to society rather than to the individual life. W e extended the suffrage and concerned ourselves with broader educational opportunities because these measures would help create a healthy over-all balance of political power. W e subsidized highways, canals, and railroads out of public funds because we wanted to advance the economy of whole sections and generally to promote the substitution of a market way of life for one based on small self-contained units. W e did not clearly express these social objectives. But they are plainly behind the characteristic big talk of the 19th century United States. Earlier we had gone through a great period of m a k i n g political constitutions for the new states, the Confederation, and then the national government. W e readily thought of ourselves as architects and builders of large social and political constructions. T h i s preoccupation with the exciting sweep of grand-scale development tended, indeed, to divert our attention from values of individualism to which we paid formal deference. Yet, we believed also that it was worthwhile in itself that an individual should understand his situation, and grow in awareness of the relations in which he stood and their meaning for his life. This conviction ran as a persistent theme in our positive use of law to help men show what they could do and to grow by doing. Public lands and public schools provide the outstanding 19th century demonstrations of these values in action. W e began to think early about the state's role in developing individuals through public education, but we were slower to implement our ideas in this field than in our handling of the public 110

LAW AND T H E LIMITS OF INDIVIDUALITY d o m a i n . T h i s was natural to our condition. F r o m the start of our national life we held i m m e n s e assets of public l a n d . T h e s e f u r n i s h e d the readiest material m e a n s w e had as a positive instrum e n t of policy. In contrast, development of public schools called for the hard business of raising tax money in a society in which cash w a s scarce and d e m a n d s for investing direct overhead capital were m u c h more insistently in men's m i n d s than the need to invest in social capital. T h u s the decision that transfer of public lands to private fees i m p l e ownership should be n o r m of policy w a s taken a n d applied on the g r a n d scale long before w e b e g a n to put any c o m p a r a b l e a m o u n t of public resources into schools. T h i s p r o g r a m of transf e r r i n g public land to private fee o w n e r s h i p w a s a m o m e n t o u s one. W e have taken the history of our public lands so m u c h for g r a n t e d that we have not sufficiently w e i g h e d its m e a n i n g for our development. Probably no sovereign has ever held in his h a n d s greater means for peacefully s h a p i n g a society than did the U n i t e d States and the states as its grantees by virtue of their original land ownership. T h e determination that public lands should be so transferred as to create the greatest possible extension of private fee-simple title expressed a complcx o£ values as well as a g o o d deal of u n t h i n k i n g acceptance of v a g u e symbols. O n e idea of real impact behind this public lands policy w a s that to build individual character suitable to m e m b e r s h i p in a free republic, m e n s h o u l d have opportunity to exercise responsibility over resources. C o n ceivably government could have held onto ultimate title to its great landholdings a n d leased their use o n stipulated terms to private operators. Leases w o u l d have left g o v e r n m e n t s w e e p i n g powers of m a n a g e m e n t , based on o w n e r s h i p with no need to invoke its police powers. L e a s e s w o u l d h a v e provided a n easy m e a n s by which full decision w o u l d periodically return to government, which would have to decide afresh the terms of n e w 111

SOCIAL CONTROL IN A FREE SOCIETY leases or renewals. However, our faith in releasing creative individual energy ran so deep that this possible alternative almost never rose to the threshold of serious debate. T h e issue did present itself in one striking test case in the Middle West. F o r a generation in the early 19th century the United States undertook to lease rather than sell its mineral-bearing lands, as in the great lead district of southwestern Wisconsin. T h e experiment lasted in Wisconsin only until 1847. Even during its nominal life it lacked substance, because there was such evident want of conviction in Congress to provide an adequate field staff to enforce the leasehold terms, so that the miners behaved in fact as if they were freeholders. T h e r e were urgent pressures of private pocketbook interest to persuade Congress to abandon the leasing program. But it is significant to note that those who sought to end government leasing relied largely on appeal to popular sentiment in favor of enlarging individual responsibility and popular disfavor for a use of law which would keep men in "tutelage" to official decision-makers and in what was flamboyantly referred to as a condition of "serfdom."

5

It took us longer to get around to making large investments in public education. But from the beginning emphasis ran as much on individual as on social and political goals. Jefferson's program for a broad-based, increasingly selective public educational system was "directed to [the] . . . freedom and happiness" of the people, that "their judgments [may] advance in strength [and] . . . teach them how to work out their own greatest happiness" from their own resources, as well as "rendering [ t h e m ] the safe, as they are the ultimate, guardians of their own liberty. . . ." Seventy five years later Horace Mann preached the "See Laws of Wisconsin Territory, 1946, Memorial of February 2, 1846, p. 225; statement of the Commissioner of the General Land Office on sale of California mineral lands, Executive Documents, 31st Congress, 2d Session, 1950, Document No. 2, pp. 19-20. 112

LAW AND THE LIMITS OF INDIVIDUALITY same theme, that through public education the state should help men to "develop . . . the vast treasures of human talent and genius. . . . " 6 Ironically, out of the experience which fostered this concern to develop the creative awareness of individuality there grew also a distorting heresy. This took the form of a narrow-visioned "practicality" of outlook which might fairly be termed a bastard pragmatism. T h e idea of equality stood for goals in living that we held dear, but which we left dangerously ill-defined. Mid-19th century America took as a working assumption that equality meant that men in fact had about equal talent for any job. " T h e Spirit of God breathes through the combined intelligence of the people," said George Bancroft. 7 There was the suggestion that native shrewdness would do for day to day, and that some kind of folk wisdom, of general intuition and good will, would take care of the large issues of the big society and the long future. Our attachment to a vague symbol of equality tended to involve also our own version of the traditional distrust of the country man for the city man. W e romanticized rural life as the seat of a simple, high morality and of an untutored common sense. T h e virtue attributed both to rural morality and to rural common sense was that they expressed uncomplicated knowledge of life such as any man could gain for himself without other study than living. Preoccupied with infinite close-to-hand, operational problems of opening up a continent, we learned impatience with thought or with knowledge the immediate applications of which we could not see. Chronic scarcity of working capital taught us * Jefferson, Notes on Virginia, in Saul K . Padover, ed., The Complete Jefferson (New York, 1943), 668; Horace Mann, Lectures and Annual Reports on Education (Mrs. Mary Mann, ed., Cambridge, 1867), 3:664-666. ' Bancroft, "The Office of the People," in Literary and Historical Miscellanies (New York, 1855), 425. 113

SOCIAL CONTROL IN A FREE SOCIETY to put a high premium on improvisation and on quick returns. Out of these attitudes came disbelief or unwillingness to believe in special knowledge, in the need to search for relations of cause and effect not visible to current operating experience, in the need to identify, train, and employ superior human talent. Thus a warped heresy emerged out of our belief in the awake, creative mind as an element in a prized individuality. W e believed in the creative mind—and our public policy expressed our belief—so long as its creativity did not range very far beyond what we knew from familiar common experience. Beyond that point our faith faltered or turned to distrust, though this meant rejecting the truly dynamic possibilities of the quality we professed to cherish. T h i s part-fearful, part-disbelieving depreciation of quality had its reflection in the legal policy. I do not count as part of this the extension of the right to vote. T h i s was not only the most conspicuous, but probably the most constructive legal expression of our belief in equality, well-founded in reason as well as in mature feeling. Life under law is itself life being educated. W e have learned no other way to breed responsibility in men than by giving them responsibility. Moreover, there was a hard-bitten but realistic estimate of human nature back of the extension of suffrage. If every man really shared authority, Jefferson advised, "the government will be safe; because the corrupting the whole mass will exceed any private resources of wealth ; and public ones cannot be provided but by levies on the people."

8

However, the false individualism which depreciated or feared the extension of intelligence found damaging expression in law. One harmful result was an uncritical expansion of the number of elective offices. At the least this blurred responsibility. As the country moved toward a complex pattern of living predominantly urban, the extension of elective office did much to weaken the individual's sense that he could truly help to exact accountability 8

Jefferson, op. cit. supra, note 6, p. 609. 114

LAW AND T H E LIMITS OF INDIVIDUALITY f r o m g o v e r n m e n t . T h e r e was practical need to focus responsibility f o r top decisions a n d general results and to delegate detail. W h e n t h e voter was asked to participate directly in selecting scores o f office holders, it b e c a m e so plain that his power was n o m i n a l only that the effect was to waste his civic morale and invite resignation or cynicism. T h e appointive bench fell victim to mid-19th century s e n t i m e n t ; f r o m about 1830 it became the rule that state j u d g e s should be elected. T h e r e is no satisfactory evidence that

this

materially i m p a i r e d the capacity or biased the policy-making o f state appellate courts. O n

the other hand, in the context

of

m e t r o p o l i t a n politics after the 1870's—with its c o m b i n a t i o n

of

impersonality and m a n i p u l a t i o n — t h e r e was decline in the c o m petence and independence o f urban trial courts. T h e sentimental m y t h o f the superior morals and shrewdness of the country m a n b u l w a r k e d the power politics which produced increasing discrimination against the city in legislative representation. T h r o u g h the first h a l f of the 20th century this developed as a m a j o r scandal of the law, with no indication that the situation w o u l d soon c h a n g e . T h e condition m e a n t serious attrition upon opportunity for effective political intelligence in the n o w p r e d o m i n a n t urban areas. Particularly in state legislatures, but also in Congress, it m e a n t disproportionate influence for

con-

stituencies which lacked experience of close-knit social relations, whose tradition was involved with capital scarcity, and w h i c h were inclined thus to adhere uncritically to old ways at the expense of adjusting to urgent pressures of change. J a c k s o n i a n A m e r i c a m a d e a philosophy of depreciating

pro-

fessionalism and e x a l t i n g j o u r n e y m a n skill. T h i s was reflected n o w h e r e m o r e clearly t h a n in legal institutions. W e fixed no req u i r e m e n t s of professional qualification for our judges. W e

ac-

ceptcd as the n o r m large turn-over of executive personnel, lack o f tenure, inattention to special job qualification. T h o u g h

Con-

gress under Clay's leadership began to develop some expertness 115

SOCIAL CONTROL IN A FREE SOCIETY

through standing committees, neither Congress nor the state legislatures gave adequate attention to staffing themselves to find facts for m a k i n g long-term, comprehensive policy. The mid-19th century saw the decline almost to disappearance of standards for training or admission to the bar. In these terms, through our most massive public means of adult education—the conduct of our legal order—we expressed a basic disbelief, not to say contempt, for the disciplined awareness which was part of a vital individuality. T h i s preference for rule of thumb and crude experience fostered a false individualism which limited growth in the substance of public policy as well as in institutions. This showed itself especially in the tardiness with which we attempted even rough definition of social income and social costs as bases of policy judgments. A meaningful individualism depends on a healthy social context. M e n are animals except as they live in fruitful relation to other men. By a calculus of illusory simplicity, dependent upon reckoning only the interests which were most visible and nearest in impact, we neglected proper claims of social order and yielded uncritically to claims of the individual actor. So, without sound accounting we spent our great natural endowment in timber, minerals, and soil through the 19th and early 20th centuries, at grave cost to our capacity to meet a changing future. These were losses, too, to conditions important for promoting the individual life, for example in the loss of the tax base to support enlarged efforts in science and education. But the loss to individualism was more immediate, and closer to the spending generations themselves. It was a loss in failure to respond wisely to one of the greatest challenges environment ever presented to man. W e failed to use the intelligence that w a s in us to define the choices w e made, especially to examine explicitly the relative costs and gains of preferences for present over future satisfactions. In a sense the worst thing that can be said of much of what w e did in open116

LAW AND THE LIMITS OF INDIVIDUALITY ing up the continent was not that we wasted resources, but that we let m a j o r decisions be taken by default. S o doing, we blunted our imagination. W e worked hard at being busy. B u t we took it easy so far as mature responsibility for our general course was concerned, because in large part we lived off our capital as m u c h as off our income. W e inherit limiting legacies f r o m this past. O u r own times, however, heritance.

have added their o w n We

continue

to

peculiar

distrust

burden

intelligence

to our that

in-

reaches

beyond " c o m m o n sense" or untutored feeling. It is revealing that " p l a n n i n g " is so readily a t e r m of controversy and "theoretical" so often a characterization of reproach w h e n we debate affairs. Awareness is the prime c o m p o n e n t of the individuality we say we believe in. B u t the pressure of a new-found national security has made painfully apparent the

worry

over

uncertainty

with which we view this element. In terms of issues of our own time, we seem guilty of naivete toward social costs in relation to social income such as m a r k e d our 19th century handling

of natural

resources. L e t

us pass

predecessors'

questions of

the

Bill o f Rights and constitutional authority. J u d g e Learned H a n d does us service when he cautions that after one has found constitutional power, he still must decide what is the wise use of power. 9 T o o much talk of constitutionality may encourage us to evade choices which events or demagogues will make for us. S o it has been disquieting to see how easily current opinion will accept claims advanced in the name of "security" as representing self-evident ultimate values, without respect to the costs of the alleged security. L e g a l protection for differences of ideas and judgments

and attitudes may, it is true, heighten

some

tensions. B e h i n d some differences may lie disparities of values "Central Park Address of May 21, 1944, in Irving Dilliard, ed., The Spirit of Liberty: Papers and Addresses of Learned Hand ( N e w York, 1953), 190. 117

SOCIAL CONTROL IN A FREE SOCIETY

that reach into subversion of existing order. But it is no less true that the law's inquiry into men's opinions, attitudes, and associations tends to make difference itself suspect and to reinforce the ordinary inclination of most people to stay away from disturbance of their private lives. In a society whose massive impersonality and remote scale of operations already daunts the individual, discouraging his confidence that he can understand or effectively share in affecting what happens, how far are we subverting our individualism by casting the prestige and power of law further on the side of questioning difference and putting premiums on safe anonymity?

3 T h e second element in individuality is the belief that one possesses some control over the course of life and the expression of one's capacities. Compounded of faith and experience, this sense of control is needed to put muscle at the service of individual awareness, and to make separateness a challenge rather than a source of despair. This is the element of will in individuality. It is the element for which the law has peculiar relevance, because it deals with power, and the distribution and discipline of power is the most distinctive business of law. From the 17th and 18th centuries we inherited the idea that legal order should legitimate and protect large preserves of autonomy for private will. Individual rights of property and contract meant broad delegation of decision-making initiative to individuals. One main current of legal development in this country over the past 150 years has been to expand the categories of rights legally protected as property, and the categories of property holders. So viewed, the law of property is a key civil liberty. T h e abolition of human slavery, the extension of prop118

L A W A N D THE LIMITS OF INDIVIDUALITY

erty a n d contract rights by the M a r r i e d W o m e n ' s Property Acts, the creation of liens in protection of w a g e earners a n d s m a l l operators, the creation of property-like rights in access to job opportunities a n d in job tenure through legally protected collective b a r g a i n i n g m a d e a broadening stream of public policy supporting the control element of i n d i v i d u a l i t y . Into this pattern fitted also the insistence of constitutional doctrine that official regulation be invoked only for public purposes (substantive d u e process of l a w ) , and that tax-derived moneys be spent only to the public benefit. For these doctrines of public purpose m e a n t in effect that decision on special and particular effects w a s the proper d o m a i n of i n d i v i d u a l w i l l . A g a i n , w e should d i s t i n g u i s h w h a t the constitution permits a n d w h a t it forbids. T o e n l a r g e private contract a n d property rights w a s a m a i n t h e m e in the g r o w t h of both c o m m o n l a w and legislation. For a limited period, r o u g h l y f r o m the '90s into the first quarter of the 20th century, courts curbed legislative choice by imposing w h a t a m o u n t e d to a presumption against the validity of regulation w h i c h l i m i t e d the initiative of private decision-making through contract or property. T h i s appears to have been a temporary phase of our legal development, however. A s w e have already noted, the 1930's s a w return to a more classical emphasis upon the w i d e scope of legislative discretion to declare the public interest. T h e equal protection of the l a w s was another idea f r o m o u r 17th-18th century legal inheritance that helped to realize the control factor in the sense of i n d i v i d u a l i t y . Government, h o w ever, can effectively destroy the substance of i n d i v i d u a l i t y by u n f a i r l y a p p l y i n g l a w s which are fair on their face. Closely related to e q u a l protection in this sense w a s the emphasis our constitutional tradition put on decent a n d regular procedure in a p p l y i n g l a w . Of like import w a s the f a m i l i a r doctrine w h i c h put a h e a v y burden on g o v e r n m e n t to prove its case w h e n it leveled c r i m i n a l charges against an i n d i v i d u a l . 119

SOCIAL CONTROL IN A FREE SOCIETY In these realms of equal protection and procedural regularity it was largely judicial and executive action that put practical content into doctrine. And as between the two, in a showdown we depended on the courts to enforce these principles. There were functional reasons for this. Where values consist in the manner as much as in the ends of action, it is in application alone that their reality emerges. And because we look to the executive for vigor, we look the more to judges for balance in applying law. These are considerations which make more serious the depreciation of disciplined intelligence which I noted earlier as a distortion of individualism. It takes some detachment, sophistication, and self restraint for people to be willing to pay the costs of equal laws and orderly and fair procedure. Untutored common sense and undisciplined feeling readily say, this is evil so smash it, this is a bad man so kill him or lock him away—all as quickly and directly as possible. T h e record does not show that the man in the street has risked himself for the values of the Bill of Rights when under stress. Minority action, and especially the special tradition of the courts, have given the Bill of Rights whatever vitality it has had. Currents of opinion which detract from the quality and independence of the Bench and put minority opinion presumptively under suspicion thus run strong against the protection of interests of individuality. There is graphic contemporary illustration in the easy popular response to criticisms of the constitutional guaranty against self-incrimination—as if 300 years of Anglo-American history did not attest that this guarantee grew not out of sentimental indulgence of evildoers, but out of bitterly experienced need to discipline the laziness or the willfulness of officials. However, a healthy social context is itself a prerequisite to healthy individualism. For about 100 years now, interest in the security and vital energy of the society has been expressed 120

L A W AND T H E LIMITS OF INDIVIDUALITY

primarily by legislation. This, too, follows function. T h e legislature holds the purse and by long practice and acceptance has the authority as well as the means to inquire broadly into facts of general concern. Thus it has pre-empted the making of framework policy. Thus, too, it is not surprising that we find in the statute books the broadest assertions of social over individual interest. Because our history gave the courts a special authority to declare constitutional limitations on legislative power, the judicial branch has shared responsibility for striking these general balances between individual and community. From the start the judges paid their tribute to the claims of general policy upon particular interest, in the doctrine that every statute is presumed constitutional. Judicial practice has varied. Generally, however, it has been difficult to persuade a court to hold an act of legislation invalid. A strong presumption in favor of the constitutionality of legislation seems likely to work as a presumption against preference of interests of individuality and in favor of interests of groups or of the state. T h e legislature responds most readily and strongly to demands of organized groups or to programs of executive and administrative officers, rather than to those of individuals. T h e legislature is the natural forum of groups as the court is the natural forum of individuals. The practical impact of a strong presumption of constitutionality is thus to increase the working power of organized groups of all sorts, once they achieve some effective minimum of strength. Experience indicates that at most the courts can brake the force of interests which operate effectively through the legislative process. "Every dominant opinion tends to become a law," Mr. Justice Holmes cautioned. 10 I would not underestimate the braking function of the courts. Holmes, J., dissenting, in Lochner 76 (1905). 121 10

v. New Yori{, 198 U.S. 45,

SOCIAL CONTROL IN A FREE SOCIETY N o r is this function exercised only within the limits of judicial review; there is plenty of flexibility in the business of interpreting and applying statutes to give judges scope for bringing issues to sharp focus for a second and perhaps more sober look by the legislature.

Limiting

construction

of

vague

federal

loyalty-

security laws has provided striking recent examples. A n d herein the judicial process shows its distinctive functions,

allowing

individual litigants to publicize their interests, to force debate and exert leverage in a measure such as they lack means to accomplish before the legislative branch. Thereby, in a more tightly centralized law-making process, the courage, stubbornness, and self-interest of individual suitors and their lawyers can still contribute to hammering out public policy in a fashion familiar to the growth of the common law. Emphasis

may

properly go to the litigant and his lawyer as much as to the judge, for however upright, able, and courageous, the judge can work only within the opportunity these people present to him. Out of proper regard to individuality, indeed, we should not look too much to any body of officials, judges or others, to maintain our liberties. T h e r e is no substitute for the presence in a community of a vigorous and courageous minority prepared to m a k e itself felt against the inertia of common opinion and the play of forces in the legislature. T h e legislature is the normal forum of operation for the organized group. T h i s is partly because it costs more in time, money, and energy to put the cumbersome legislative machinery in motion than any but an organized group can usually afford. It is so also because legislators, most of them of short tenure and all tied to the immediate pressures of local constituencies, are especially vulnerable to ruthless and determined

counter-

attacks of dissatisfied organizations. Such considerations make a sympathetic case for a doctrine of judicial review which has been coming to definition despite criticism. T h i s would rule 122

LAW AND T H E LIMITS OF INDIVIDUALITY that, contrary to the ordinary presumption favoring the validity of legislation, positive justification must be shown to uphold a law which on its face limits free communication—legislation, that is, which limits processes peculiarly important to developing individual expression and asserting individual direction of affairs. T h e importance which our society has traditionally attached to individual creativity and courage to supply needed innovation a n d criticism of institutions would reinforce this judgment. In its ordinary

application

the presumption

of

constitutionality

cautions courts that they should hesitate to substitute

their

j u d g m e n t on debatable findings of fact or choices of values for the findings or choices of the legislature, whose function is to validate new policy and which is equipped with the m e a n s to test opinion, investigate, and experiment with varied sanctions and procedures. But these reasons also argue that where legislation limits processes of communication by which m e n

may

combat ignorance, enlarge understanding, and bulwark

their

courage to test their creative powers, it cuts across the basic reasons of policy which support the ordinary presumption of constitutionality, and may fairly be asked to justify itself. In the 19th century context, insistence upon the control factor in individuality bred its own warped heresy. T h i s consisted in exaggerating the self-sufficiency of the individual actor.

The

exaggeration f o u n d crude but vivid expression in the legend of the self-made m a n . It took more impersonal f o r m in

undue

reliance on the market as a process for m a k i n g decisions, for the market was the f o r u m in which unnumbered

individual

actors could give general direction to affairs. T h e popular i m a g e of the self-made m a n and popular preoccupation with the market were d a m a g i n g because they ignored material facts or rested on half-truths. F o r one thing, they assumed that individual actors started with substantially

equal

means

or held

substantially

equal bargaining positions—a fact which became less and less 123

SOCIAL CONTROL IN A FREE SOCIETY true in proportion as the country became urbanized, and its economy dependent upon an intricate division of labor and on enterprises requiring great capital and access to the financial techniques for mobilizing it. For another, this preoccupation with the self-made m a n and with the market meant, more than we realized, a calculus of decisions through pricing. T h r o u g h the 19th century we subsidized out of real social capital the careers of many a "self-made" man, and paid large real social costs for our quick response to market demands. Generally we did not realize what we were doing, and only rarely debated the wisdom of it. W e did not see the subsidies or the costs, for they did not figure in the money calculations of market transactions. Wisconsin's great late 19th century lumber industry, for example, responded with massive production to the imperious demand of the midwest market for lumber for building towns and farmhouses, running fences a n d telegraph lines, and laying ties for railroad track. In a real rather than merely a money reckoning, the costs of this production included depletion of the Wisconsin pinery, so that by 1915 it could no longer produce any significant quantity of prime logs. Related real costs were the abandonment of towns, mills, roads and railroads, loss of tax base, loss of regional capacity to develop new industry dependent upon shorthaul sources of forest raw materials, and, for the central United States as a whole, a permanent increase in freight bills r u n n i n g f r o m 30 to 50% of the cost of lumber, as industry and consumers had to turn to the far South and West for supplies. N o n e of these real costs figured in the decision—or, more accurately, in the drift of events—which produced depletion of the forest. T h e failure to include such costs in the reckoning was not the fault of individual bargainers or of the market, for such costs were inherently outside the frame of reference within which individual bargainers or the market could operate. But this is to say that there were 124

L A W A N D THE LIMITS OF INDIVIDUALITY

social values involved which should have reached definition a n d decision t h r o u g h law, and which did not because our m i n d s and wills were pre-empted by a false individualism—false because it neglected

the essential social context of

individual

development. Another real cost which the 20th century paid for our earlier exaggeration of the roles of individual decision-makers a n d of the m a r k e t was to damage the moral status of individualism itself. A substantial public opinion

finally

did become aware

of the unacknowledged subsidies and costs we had been supporting. O u t of this new awareness came imperfect yet constructive developments in the law pertaining to conservation of natural resources, and regulation of public utilities and of finance

a n d m a r k e t i n g practices. O u t of it, too, however, came

a good deal of undesirable popular cynicism and distrust t o w a r d the worth of individual initiative and an undesirable tendency to romanticize official action so long as it purported to be taken for the general security. T h u s common opinion tended to swing f r o m indifference to self-righteousness regarding public affairs. It is doubtful that one is any better than the other. Because individuality depends upon social context, it is not surprising that if our 19th century heresy damaged respect f o r the individual it also confused our estimates of the proper role of groups in realizing individuality. T h e fact was that, especially after the 1870's, this society grew so in scale and in the range a n d interlocking nature of its procedures that men had to conduct their affairs more and more by organization. Only groups could mobilize effective power where affairs were conducted in such wide theatres, by techniques d e m a n d i n g such mobilization of skill and capital, for stakes which attracted such large ambition and, correspondingly, invited such sizeable mustering of force. B u t we romanticized the roles of the lone operator a n d of t h e m a r k e t to a degree that m a d e us unready to m a k e timely a n d 125

SOCIAL CONTROL IN A FREE SOCIETY realistic estimate of the importance of g r o u p action. S o we moved into a situation in which effective individuality

depended in

increasing measure on effective links to group action without developing

an

adequate

theory

of the legitimacy

of

group

authority. T h i s hampered proper definition of the role of the modern business corporation under law, as it also hampered definition of the proper role of pressure groups seeking to affect official decision. T h u s we still grope for a satisfactory concept of the legitimate power of management in the large-scale corporation. T h u s , too, it reflects immaturity rather than realism that " l o b b y " remains simply an epithet in ordinary talk of public affairs. Since we failed so signally to develop an adequate theory of power factors integral to the operation of 20th century society, it w a s consistent that general opinion showed only indifferent concern to g u a r d the basic freedoms of association which belonged to the tradition of the Bill of Rights. So far as rights of peaceable assembly and petition, rights to meet and organize peaceably

to

discuss and

promote

rights to contribute money

views

of public

and effort in support of

interest, public

causes continue to give vitality to individuals' connection with public

policy-making

in

this

security-conscious

generation,

plainly little credit is due to general opinion or to the legislative and executive branches of government. A g a i n , our experience shows that the Bill of Rights has living force in the society chiefly

by

the

exertions

of

individuals

and

small

groups,

supported and legitimated by the courts. Fairness requires note, however, that the development of the modern

administrative process did represent one m a j o r

and

rather orderly response to the need for a better theory of the relation of organization to individuality. A n d herein constructive work was done through legislation and executive action. A s it g r e w in the early decades of the 20th century, the m o d e r n administrative process sought more effectively to represent indi126

L A W AND T H E LIMITS OF INDIVIDUALITY

vidual interests ill-matched against great aggregations of private power in the market, or powerless before the impersonal sweep of events that could create a depression or threaten irreversible depletion of natural resources. W e felt that the administrative agency would be a publicly supported lobby for common concerns of great numbers of individuals who could not otherwise wield power. W e have been experiencing stages of disillusion over our creation. The disillusion reflects the fact that even the constructive work done in this field could not escape the blight of the 19th century's depreciation of political intelligence and its fictions about the location of power. Too much of our early 20th century devising we did with moralistic fervor rather than with the objective realism of the founding fathers. Belatedly we have become aware that merely to set up an executive agency does not insure that the agency will keep a crusading zeal for its trust and remain sturdily independent of the interests it regulates. W e have made too limited use of advisory committees representing interests chiefly affected in fields of administrative regulation—such as have operated effectively in developing codes of industrial safety and contributing to the unfolding of unemployment compensation administration under the Wisconsin Industrial Commission. We have done too little to develop procedures of co-operative policy-making and implementation on the model of the Tennessee Valley Authority's field activity. 11 The "independent agencies" should be independent in objective, honest application of policy in their charge. But both in the national government and in the states they have tended to drift into an independence in policy-making, which means simply a lack of comprehensive, recurrent scrutiny of fundamental value choices by administrators in meaningful working relation " S e e John R. Commons, Myself (New York, 1934), 141-143, 153160; Philip Selznick, TVA and the Grass Roots (Berkeley and Los Angeles, 1953), 259-266. 127

SOCIAL CONTROL IN A FREE SOCIETY to the legislature and the chief executive. In times and in matters where individual interest can have effective meaning only through organization, we continue to fail our values for want of sufficiently sophisticated ideas of what ends we seek and how we need go about achieving them.

4 T h e third element of individuality is the sense of privacy—of separateness or aloneness. T h e law walks warily in this realm. Yet rights of privacy have bulked large in our legal tradition. They bulk larger than we often realize. F o r protection of the individual's right to his separate being is a significant effect and function of some central legal doctrines which we ordinarily think of in less personal, more institutional and political terms. L a w students are apt to think of the "right of privacy" as a special and rather peculiar modern development in the law of civil wrongs,

stemming

from a famous essay which Louis Brandeis and Samuel Warren wrote for the Harvard

Law

Review

in 1890. Let us recall that

the authors of this classic piece themselves put their subject in a very broad context, as part of growth in the law's "recognition of man's spiritual nature, of his feelings and his intellect," as part of a development through which "the right to life has come to mean the right to enjoy life,—the right to be let alone. . . ."

12

Substantive due process of law under the Fifth and Fourteenth Amendments means in large part the idea of legally protected privacy. F o r it means that legitimate use of the state's power depends upon reasonable determination that its use will serve a public interest. T h e public force may properly be brought to "Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy" (1890) 4 Harv. L. Rev. 193. 128

L A W AND THE LIMITS OF INDIVIDUALITY

bear upon the individual only for public purposes. T h e state should not lend its aid merely to private advantage. Conversely, this limitation means that the state must respect privacy. T h i s is one profound m e a n i n g in the institution of constitutionally protected private property. Insistence that the law's legitimacy lies in serving the public interest runs back to Greek philosophy. But the prime emphasis here was on the commonwealth. It was the philosophers of the Parliamentary Revolution who cast the emphasis of this doctrine in terms which gave it w o r k i n g meaning to Americans by treating it as assuring scope for private will and feeling, through their emphasis on private property, private religion, and free speech. T h e constitutional guarantee of the free exercise of religion, and the less well-defined body of principle and practice w e call the separation of church and state, likewise favor individual control. A man's relation to his God is to be a relation ultimately in his o w n charge, at least as against any claims of the secular state. A classic instance is the abhorrence of the test oath written into Article VI of the Federal Constitution: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Relevant to the protection of privacy is the insistence that l a w limit its regulation to overt action. This insistence on the overt act is one of the most pervasive doctrines of our law, reaching far beyond its dramatic demonstration in the treason clause of the Constitution or in famous formulations of the limits of regulation of speech. Generally, the law m a y command or punish only overt action. Generally, in criminal law, in the law of civil wrongs, as in constitutional doctrine, the courts have held that government should not lay burdens upon men on account of what they think or say or feel, but only on account of idea, word, or emotion translated into substantial action or immediate tangible detriment to other public or private 129

SOCIAL CONTROL IN A FREE SOCIETY interest. This is an old principle in judge-made law. As with other elements basic to civil liberty, there is much in the country's social and political history to make one skeptical of how far general opinion has been willing to support this

principle.

Cold war has put the principle under obvious stress. Responding to popular notions of "security," legislation has moved a good way toward abandoning traditional insistence on the overt act, and toward proscribing ideas and speech whether or not they are proved to affect events. However, private as well as official action may invade the individual's claim to be let alone. Out of malice, idleness, insecurity, and a range of motives as wide as the variety in human nature, people like to gossip and poke their noses into other people's business. T h e harm they do may often be subtly done, hard to prevent, and hard to prove. Self-help and social custom provide the best and frequently the only means to deal with this meddlesomeness. Yet, despite the practical difficulties of administration and remedy, the law has paid enough attention to this kind of damage to attest that we deal here with invasions of values very important to our conception of the worth of life. T h e law of libel and slander provide the oldest expressions of this concern of public policy. Early emphasis was simply on the most aggravated wrongs, done by intentional or wanton spreading of damaging falsehoods. However, the technical development of mass communication from the middle 19th century greatly enlarged the means and opportunity of damaging exposure. The legal reflection of this was a new stress upon recovery for negligent defamation by newspaper or over air waves. This same technical enlargement and facility of mass communication, moreover, produced concern that the law of defamation no longer covered the range of legitimate interests that individuals had in being let alone. Publication of damaging truth could as much invade privacy as publication of damaging lies. 130

LAW AND THE LIMITS OF INDIVIDUALITY Y e t , there was a strong social interest in the flow of valid information. T h i s

market-oriented,

division-of-labor-organized

society

functioned on the basis of reliable communication. Plainly also, however, truth m i g h t be published idly, pruriently, maliciously, or for selfish gain alone. T h u s the issue which Brandeis

and

W a r r e n posed in their 1890 call that the law give civil relief for invasion of privacy went deep into values which formed the structure of our society of professing individualists. Judges and legislators have moved cautiously here. About a third of the states n o w recognize a c o m m o n law tort of invasion of privacy; legislation has recognized this interest in some of these and in other states. Partly for administrative reasons—the difficulty of defining and proving the kinds of damage the law should redress —but

partly

out of

regard to the

functional

importance

of

information flow for social operations, the courts and the legislatures have tended to limit protection to aspects of privacy that have the look of "property." T h u s typically remedy has been given for the unauthorized use of a person's name, picture, or life story for another's business profit, or for bludgeoning use of publicity in aid of debt collection; and on the other hand there has been m a r k e d reluctance to protect one w h o by career, choice, or by accident of events has come into the

ordinary

channels of news. A l m o s t certainly the law has unfinished business in this area of protection of privacy. T e c h n o l o g y continues to extend the easy reach of the means of mass communication. B y the same development gratifying

the

the

stakes

for

desires of a

private public

profit which

mount reads,

higher views,

in and

listens m o r e to amuse itself than to learn what it needs to k n o w . A n o t h e r aspect of our technical development is relevant, too. T h e r e are almost no people a m o n g

us except the very

rich

in the city and the very poor on the land who are not dependent for livelihood upon the good will of an employer or customers. 131

SOCIAL CONTROL IN A FREE SOCIETY T h e market, the bureaucracy, and the extreme division of labor which characterizes the high development of both, have made individuals very vulnerable to ostracism. These factors give new importance to the rational or functional as well as the emotional value of a man's right to be let alone. This rational value of privacy might be termed a man's right to make limited commitments. If individuality is to have meaning, a man should be able to venture into some areas of life without thereby risking his independence in all others. T h u s a man should be able to engage responsibly in political conduct without forthwith prejudicing his ability to buy and sell his goods or his labor, or without prejudicing his ability to enjoy his own separateness of thought or feeling, or to pursue his own religion. T h e law is not without reflection of this rational value of privacy. It is present in the guaranty of free exercise of religion, as it is in the constitutional ban on the test oath, which I noted earlier. Of analogous force are the constitutional prohibitions on legislative bills of attainder and on ex post

jacto

laws. T h e use of publicity generated by legislative investigation, to create a new kind of trial and sentence before public opinion, has given fresh point to this issue of limited commitment. Private boycott likewise presents fresh problems. W e have not yet made up our minds how far the law should permit organized withdrawal of economic relations, for example, conditioned on conduct not primarily connected to economic relations. T h e question is not easy, as the use of peaceful boycott by Negro bus riders in Montgomery, Alabama, made painfully clear. F o r here we cut across another facet of legal recognition of interests of individuality—the use of property rights consumer's

right

to choose in

market,

for example)

(the as

a

critically important means of control of experience. If the interest in privacy presents legitimate claims on the 132

LAW AND THE LIMITS OF INDIVIDUALITY law,

it

also

developed

its distorted

heresy

out

of the

19th

century U n i t e d States. Over 125 years ago that uncannily perceptive young F r e n c h m a n , Tocqueville, saw at work a subtle subversion

of

popular values. In his estimate we were

mis-

directing our esteem for privacy toward outcomes dangerous to political well-being. In this mobile society, placing highest value upon equality, most men, Tocqueville thought, "are extremely eager in the pursuit of actual and physical gratification. A s they are always dissatisfied with the position that they occupy, and are always free to leave it, they think of nothing but the means of c h a n g i n g their fortune or increasing it." In this social context T o c q u e v i l l e saw a tendency for people to turn aside from achieving and keeping political freedom to seeking simply a higher material standard of living, by the obvious external measurements of which men could estimate their progress toward the more obvious k i n d of "equality." L i k e our founding

fathers,

T o c q u e v i l l e was not confident of the innate capacity of h u m a n nature to choose the more elevated style of life. " T h e taste which men have for liberty and that which they feel for equality are in fact two different things," he observed. " A n d , " he

continued,

" I am not unafraid to add a m o n g democratic nations they are t w o unequal things." M e n found more immediate satisfactions in pursuing material equality, and hence easily neglected the political context of their affairs. " T h e advantages that freedom brings are shown only by the lapse of time and it is always easy to mistake the cause in which they originate. T h e advantages of equality are immediate and they may always be traced from their source. Political

liberty bestows

exalted

pleasures

from

t i m e to time upon a certain n u m b e r of citizens. Equality every day confers a n u m b e r of small enjoyments on every m a n . T h e charms of equality are every instant felt and are within

the

realization of all. T h e noblest hearts are not insensible to them, 133

SOCIAL CONTROL IN A FREE SOCIETY and the most vulgar souls exalt in them. T h e

passion that

equality creates must therefore be at once strong and general. Man cannot enjoy political liberty unpurchased by some sacrifices and they never obtain it without great exertions, but the pleasures of equality are self-proffered. Each of the petty incidents of life seems to occasion them, and in order to taste them nothing is required but to live."

13

T h e law did not directly foster this unfortunate trend toward the privatization of life apart from responsibility for its social context. T h e great teacher of this heresy was the amazing range of economic growth in the United States which

pre-empted

men's imaginations through the 19th century. T o this, law of course made powerful indirect contribution, as it provided the framework for creating broad sectional and national markets, the means to mobilize capital on a scale increasingly large, and a pattern of property and contract doctrine which lent itself to neglect of care for social capital and the proper accounting for social costs. These 19th century preoccupations invited political

naivete.

They diverted us from active concern for large problems of organizing power at the same time as the scale of operations in the society broadened and operating processes grew to involve chains of cause and effect that were increasingly difficult to trace and understand. Individual men and women felt more and more remote from meaningful connection with main choices of social direction. Y e t while their circumstances

demanded

more intelligent awareness of social process and more effort to exert leverage upon the cumulative force of events, the immediate satisfactions and the prized goals of a rising standard of living taught a false equation of privacy and privatization which spelled neglect of the necessary civic context of individuality. 13 Alexis de Tocqueville, Democracy New York, 1945), 2:96.

134

in America

(Bradley

ed.

LAW AND T H E LIMITS OF INDIVIDUALITY

5 T o create a n d g u a r d the social arrangements essential to individuality

has been generally the w o r k

of a m i n o r i t y

of

the

people. In this light no function of law has been m o r e important than that g i v i n g leverage to the creative will and courage of this m i n o r i t y . In the service of h u m a n life legal institutions should allow intelligent control in the interest of e n r i c h i n g individual experience to w o r k a characteristic

m o r e effectively against

general

the b a c k d r o p

inertia or indifference

or even

of

latent

hostility to the adventures of the individual spirit. Probably we have deceived ourselves a good deal as to h o w m u c h broad public opinion in the U n i t e d States has believed in paying the costs o f p r o m o t i n g and protecting

individuality.

L e g a l history, like general history, teaches us that m o s t o f w h a t has happened to m e n has happened not out of their good-will or ill-will, out o f their malevolence or their beneficent purposes, or even out of their directed effort of any sort. M o s t of m a n ' s history has been the product o f drift, default, and the accumulation of circumstanccs which at any given point have out-reached m e n ' s i m a g i n a t i o n s and exhausted their will. B u t the w h o l e story is not comprised in this g l o o m y reading of the record. M e n have also scored in o v e r c o m i n g t h e inertia o f a physical world, w h i c h cares n o t h i n g for them, in s u r m o u n t i n g their o w n fear a n d laziness, a n d in reaching beyond t h e apparent limitations of their m i n d s a n d feelings. Indeed, this is the very enterprise by w h i c h they became m e n . E v e n so, successes have c o m e by no m a r g i n s wide e n o u g h to warrant c o m p l a c e n c y . It is wise to read f r o m history the odds against achieving the values of experience we sum up as individuality. F o r o n e thing, this reading puts the emphasis in legal history where it belongs. Constitutional legal order as we k n o w 135

SOCIAL CONTROL IN A FREE SOCIETY

it has meaning primarily as an instrument to combat drift and inertia and the fears of life which seek relief by surrender of identity to a mass. Insofar as this puts emphasis where it belongs, this appraisal means that we should build and strengthen those structures and procedures of law which promise to mobilize and support responsible will and feeling in the interest of creative intelligence. Man's most implacable foes are not the bad men of history but the massive drift of events and the self-destructive emotional forces in ordinary h u m a n nature. Of course we shall not create saints or heroes or even men of average stout heart and good will by the fiat of l a w . But in the constitutional tradition of Western society men have accomplished one of their greatest musterings of organized resource to define and implement values, to sustain their flagging energies, to hold the field open to constructive variation and invention within a humanly decent social context. In our own particular history we inherit elements of strength from the recognition and protection given in law to the components of individuality. Likewise the 20th century United States lives with the undesirable legacy of some warped heresies of individualism derived from our peculiar 19th century experience. A dangerous weakness of our culture is that we know ourselves too little to know our strength and our weakness against times of stress of values. T h e stock-taking that this essay attempts concerning legal expression of our understanding and evaluation of the elements of individuality in itself points to the base proposition of individualism: Know thyself.

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The 1958 Benjamin Franklin Lecturers

L O R E N C. EISELEY, Provost of the University of Pennsylvania, has been Chairman of the Department of Anthropology at the same institution since 1947 and is Curator of Early Man of its museum. H e has participated in numerous paleontological expeditions, and has lectured widely at other universities. H e is a past President of the American Institute of H u m a n Paleontology, member of various scientific societies, and Fellow of the American Association for the Advancement of Science. H e has published, in addition to scientific articles, both fiction and verse, and has contributed to the "Adventures of the Mind" series in the Saturday Evening Post. A m o n g his books are The Immense journey and, most recently, Darwin's Century for which he was awarded the Athenaeum of Philadelphia award for the best non-fiction work written by a Philadelphian in 1958 and the 1959 Phi Beta Kappa Science Prize.

CARL G. H E M P E L , Professor of Philosophy at Princeton University since 1955, came to the United States from Germany in 1937, having received his education at various German universi137

SOCIAL CONTROL IN A FREE SOCIETY

ties. He has held academic appointments at several American institutions, including C. C. N. Y., Queens, Columbia, Yale, and Harvard. A Fellow of the American Academy of Arts and Sciences, he also holds membership in philosophical societies and was a Guggenheim Fellow 1947-48. He has contributed to numerous professional journals and is a consulting editor of the Journal of Symbolic Logic. In addition to Der Typusbegriff in Lichte der neuen Logi/ζ, of which he was co-author, he has written Fundamentals of Concept Formation in Empirical Science. is Director of the Annenberg School of Communications of the University of Pennsylvania, and has had wide experience in the popular arts, both in their creation and especially as their critic. He has been a music critic, a foreign correspondent for the American press, and a political correspondent in Washington for the French press. He has held editorial posts on Collier's and the Dial, and has been a columnist for New York newspapers. He has produced a motion picture, directed television programs, and written plays and, under the pseudonym John Foster, murder mysteries. Editor of the Portable Ring Lardner, he has written several studies of popular culture, among them The Seven Lively Arts, The Great Audience, and The Public Arts. G I L B E R T SELDES

GEORGE J. S T I G L E R , Professor of Economics at the University of Chicago, has held academic positions at Iowa State College, the University of Minnesota, Brown University, Columbia University, and the London School of Economics. He was a member of the Attorney General's commission for the study of anti-trust laws in 1954-55, and has been a Guggenheim Fellow. A member of the research staff of the National Bureau of Economic Research, he also holds membership in various learned societies, 138

THE 1958 BENJAMIN FRANKLIN LECTURERS including the Royal Economics Society and the American Philosophical Society. Author of numerous articles on economics, he has also written Production and Distribution Theories, The Theory of Price, Trends in Output and Employment, Five Lectures on Economic Problems, Trends in Employment in the Service Industries, and is co-author of Readings in Price Theory. has been Professor of Law at the University of Wisconsin since 1946. He was admitted to the Illinois bar in 1936 and the same year was law clerk to Mr. Justice Brandeis of the United States Supreme Court. At various times he has taught in the law schools of Northwestern University, Stanford University, and the University of Utah. From 1942 to 1946 he served as a member of the staff of the general counsel's office of the Board of Economic Welfare, and has been a member of the board of directors of the Social Science Research Council. WILLARD H U R S T

He has contributed to various law reviews, and among his books are The Growth of American haw, The Law Makers, and Law and the Conditions of Freedom. The Editor ROBERT E. SPILLER, Professor of English at the University of Pennsylvania, is a past President of the American Studies Association and First Vice-President of the Modern Language Association. Co-editor of the Literary History of the United States, he is author of The American in England, Fenimore Cooper; Critic of His Times, and The Cycle of American Literature.

The manuscript was also read by CHARLES E. BOEWE, Assistant Professor of English, University of Pennsylvania.

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