John Fletcher Moulton, British Judge, on the "Three Domains of Human Action"

Several months ago in discussing this question of what really makes a democracy work, a friend of mine was reminded of a speech that the Honourable Lord Moulton made a number of years ago, and he sent me a copy of it. I was so impressed by it that I decided to read part of it to you today. The subject was "Law and Manners". To quote:

"In order to explain this extraordinary title I must ask you to follow me in examining the three great domains of human action. First comes the domain of positive law, where our actions are prescribed by laws binding upon us which must be obeyed. Next comes the domain of free choice, which includes all those actions as to which we claim and enjoy complete freedom. But between these two there is a third large and important domain in which there rules neither positive law nor absolute freedom. In that domain there is no law which inexorably determines our course of action, and yet we feel that we are not free to choose as we would. The degree of this sense of a lack of complete freedom in this domain varies in every case. It grades from a consciousness of duty nearly as strong as positive law, to a feeling that the matter is all but a question of personal choice. Some might wish to parcel out this domain into separate countries, calling one, for instance, the domain of duty, another the domain of public spirit, another the domain of good form; but I prefer to look at it as all one domain of obedience to the unenforceable. The obedience is the obedience of a man to that which he cannot be forced to obey. He is the enforcer of the law upon himself."

"All these three domains are essential to the properly organized life of the individual, and one must be on one's guard against thinking that any of them can safely be encroached upon. That law must exist needs no argument. But, on the other hand, the domain of free choice should be dear to all. This is where spontaneity, originality, and energy are born."

"The great movements which make the history of a great country start there. It covers a precious land where the actions of men are not only such as they choose, but have a right to claim freedom even from criticism. Men must keep safely guarded this right to follow the bent of their nature in proper cases and act as they would without anyone having the right to utter a word of dictation or command. This country forms the other frontier of the domain of manners and delimits it on the side farthest away from that of positive law."

"The dangers that threaten the maintenance of this domain of manners arise from its situation between the region of absolute choice and the region of positive law. There are countless supporters of the movements to enlarge the sphere of positive law. In many countries, especially in the younger nations, there is a tendency to make laws to regulate everything. On the other hand, there is a growing tendency to treat matters that are not regulated by positive law as being matters of absolute choice. Both these movements are encroachments on the middle land, and to my mind the real greatness of a nation, its true civilization, is measured by the extent of this land of obedience to the unenforceable. It measures the extent to which the nation trusts its citizens, and its existence and area testify to the way they behave in response to the trust. Mere obedience to law does not measure the greatness of a nation. It can easily be obtained by a strong executive, and most easily of all from a timorous people. Nor is the license of behaviour which so often accompanies the absence of law, and which is miscalled liberty, a proof of greatness. The true test is the extent to which the individuals composing the nation can be trusted to obey self-imposed law."

"The tendency of modern legislation is to extend the area ruled by positive law, and to diminish the area of action which is determined by the decision of the individual himself. But there is one great example in the opposite direction. In one instance the people have deliberately chosen to carve a domain out of that previously covered by positive law and to throw it into a domain where the individual can determine for himself his course of action. Take the legislation relating to trades unions and trade disputes. Limitations in the power of combination have been swept away, and to a great extent that which was previously marked out by law is now in the hands of the individuals themselves:"

"I am far from suggesting that this was a retrograde step, but to my mind the question whether it is dangerous, and whether it may and will become disastrous, depends on whether the masters of workmen who gained this freedom of action, not allowed them by common law, look upon the change as justifying their treating the matters to which it relates as belonging to the realm of absolute choice, or whether as belonging to the realm where, though not restrained by positive law, they yet recognize the duty of obedience to the unenforceable. Do they recognize that the increase of their freedom of action brings with it not unfettered choice but the corresponding responsibility of using that freedom?"

"I am not afraid to trust people; my fear is that people will not see that trust is being reposed in them. Hence I have no wish that positive law should annex this intermediate country. On the contrary, I dread it. Instead of the iron rule of law being thrown over it, I would rather see it well policed by the inhabitants. I am too well acquainted with the inadequacy of the formal language of statutes to prefer them to the living action of public and private sense of duty."

Source:  http://www.empireclubfoundation.com/details.asp?SpeechID=2327&FT=yes
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