A fourth mark of the public is indicated by the idea that children and other dependents (such as the insane, the permanently helpless) are peculiarly its wards. When the parties involved in any transaction are unequal in status, the relationship is likely to be one-sided, and the interests of one party to suffer. If the consequences appear serious, especially if they seem to be irretrievable, the public brings to bear a weight that will equalize conditions. Legislatures are more ready to regulate the hours of labor of children than of adults, of women than of men. In general, labor legislation is justified against the charge that it violates liberty of contract on the ground that the economic resources of the parties to the arrangement are so disparate that the conditions of a genuine contract are absent; action by the state is introduced to form a level on which bargaining takes place. Labor unions often object, however, to such “paternalistic” legislation on the ground that voluntary combinations to ensure collective bargaining is better for those concerned than action taken without the active participation of laborers. The general objection that paternalism tends to keep those affected by it permanently in the status of children, without an impetus to help themselves, rests on the same basis. The difference here is nevertheless not as to the principle that inequality of status may call for public intervention, but as to the best means of securing and maintaining equality.
There has been a steady tendency for the education of children to be regarded as properly a state charge in spite of the fact that children are primarily the care of a family. But the period in which education is possible to an effective degree is that of childhood; if this time is not taken advantage of the consequences are irreparable. The neglect can rarely be made up later. In the degree, then, that a certain measure of instruction and training is deemed to have significant consequences for the social body, rules are laid down affecting the action of parents in relation to their children, and those who are not parents are taxed—Herbert Spencer to the contrary notwithstanding—to maintain schools. Again, the consequences of neglect of safeguards in industries involving machines which are dangerous and those presenting unhygienic conditions, are so serious and irretrievable that the modern public has intervened to maintain conditions conducive to safety and health. Movements which aim at insurance against illness and old-age under governmental auspices illustrate the same principle. While public regulation of a minimum wage is still a disputed matter, the argument in behalf of it appeals to the criterion stated. The argument in effect is that a living wage is a matter of such serious indirect consequences to society that it cannot be safely left to the parties directly concerned, owing to the fact that immediate need may incapacitate one party to the transaction from effective bargaining.
In what has been said there is no attempt to lay down criteria to be applied in a predetermined way to ensure just such and such results. We are not concerned to predict the special forms which state action will take in the future. We have simply been engaged in pointing out the marks by which public action as distinct from private is characterized. Transactions between singular persons and groups bring a public into being when their indirect consequences—their effects beyond those immediately engaged in them—are of importance. Vagueness is not eliminated from the idea of importance. But at least we have pointed out some of the factors which go to make up importance: namely, the far-reaching character of consequences, whether in space or time; their settled, uniform and recurrent nature, and their irreparableness. Each one of these matters involves questions of degree. There is no sharp and clear line which draws itself, pointing out beyond peradventure, like the line left by a receding high tide, just where a public comes into existence which has interests so significant that they must be looked after and administered by special agencies, or governmental officers. Hence there is often room for dispute. The line of demarcation between actions left to private initiative and management and those regulated by the state has to be discovered experimentally.
As we shall see later, there are assignable reasons why it will be drawn very differently at different times and places. The very fact that the public depends upon consequences of acts and the perception of consequences, while its organization into a state depends upon the ability to invent and employ special instrumentalities, shows how and why publics and political institutions differ widely from epoch to epoch and from place to place. To suppose that an a priori conception of the intrinsic nature and limits of the individual on one side and the state on the other will yield good results once for all is absurd. If, however, the state has a definite nature, as it should have if it were formed by fixed causal agencies, or if individuals have a nature fixed once for all apart from conditions of association, a final and wholesale partitioning of the realms of personal and state activity is the logical conclusion. The failure of such a theory to reach practical solutions is, therefore, a further confirmation of the theory which emphasizes the consequences of activity as the essential affair.
In conclusion, we shall make explicit what has been implied regarding the relation to one another of public, government and state.7 There have been two extreme views about this point. On one hand, the state has been identified with government. On the other hand, the state, having a necessary existence of its own, per se, is said then to proceed to form and employ certain agencies forming
