In general, behavior in intellectual matters has moved from the public to the private realm. This radical change was, of course, urged and justified on the ground of intrinsic and sacred private right. But, as in the special case of religious beliefs, it is strange, if this reason be accepted, that mankind lived so long in total unawareness of the existence of the right. In fact, the idea of a purely private area of consciousness, where whatever goes on has no external consequences, was in the first instance a product of institutional change, political and ecclesiastic, although, like other beliefs, once it was established it had political results. The observation that the interests of the community are better cared for when there is permitted a large measure of personal judgment and choice in the formation of intellectual conclusions, is an observation which could hardly have been made until social mobility and heterogeneity had brought about initiation and invention in technological matters and industry, and until secular pursuits had become formidable rivals to church and state. Even yet, however, toleration in matters of judgment and belief is largely a negative matter. We agree to leave one another alone (within limits) more from recognition of evil consequences which have resulted from the opposite course rather than from any profound belief in its positive social beneficence. As long as the latter consequence is not widely perceived, the so-called natural right to private judgment will remain a somewhat precarious rationalization of the moderate amount of toleration which has come into being. Such phenomena as the Ku Klux and legislative activity to regulate science show that the belief in liberty of thought is still superficial.
If I make an appointment with a dentist or doctor, the transaction is primarily between us. It is my health which is affected and his pocketbook, skill and reputation. But exercise of the professions has consequences so widespread that the examination and licensing of persons who practice them becomes a public matter. John Smith buys or sells real estate. The transaction is effected by himself and some other person. Land, however, is of prime importance to society, and the private transaction is hedged about with legal regulations; evidence of transfer and ownership has to be recorded with a public official in forms publicly prescribed. The choice of a mate and the act of sexual union are intimately personal. But the act is the condition of bearing of offspring who are the means of the perpetuation of the community. The public interest is manifested in formalities which are necessary to make a union legal and for its legal termination. Consequences, in a word, affect large numbers beyond those immediately concerned in the transaction. It is often thought that in a socialistic state the formation and dissolution of marriages would cease to have a public phase. It is possible. But it is also possible that such a state would be even more alive than is the community at present to the consequences of the union of man and woman not only upon children but upon its own well-being and stability. In that case certain regulations would be relaxed, but there might be imposed stringent rules as to health, economic capacity and psychologic compatibility as preconditions of wedlock.
No one can take into account all the consequences of the acts he performs. It is a matter of necessity for him, as a rule, to limit his attention and foresight to matters which, as we say, are distinctively his own business. Anyone who looked too far abroad with regard to the outcome of what he is proposing to do would, if there were no general rules in existence, soon be lost in a hopelessly complicated muddle of considerations. The man of most generous outlook has to draw the line somewhere, and he is forced to draw it in whatever concerns those closely associated with himself. In the absence of some objective regulation, effects upon them are all he can be sure of in any reasonable degree. Much of what is called selfishness is but the outcome of limitation of observation and imagination. Hence when consequences concern a large number, a number so mediately involved that a person cannot readily prefigure how they are to be affected, that number is constituted a public which intervenes. It is not merely that the combined observations of a number cover more ground than those of a single person. It is rather that the public itself, being unable to forecast and estimate all consequences, establishes certain dikes and channels so that actions are confined within prescribed limits, and insofar have moderately predictable consequences.
The regulations and laws of the state are therefore misconceived when they are viewed as commands. The “command” theory of common and statute law is in reality a dialectical consequence of the theories, previously criticized, which define the state in terms of an antecedent causation, specifically of that theory which takes “will” to be the causal force which generates the state. If a will is the origin of the state, then state-action expresses itself in injunctions and prohibitions imposed by its will upon the wills of subjects. Sooner or later, however, the question arises as to the justification of the will which issues commands. Why should the will of the rulers have more authority than that of others? Why should the latter submit? The logical conclusion is that
