第 30 节
作者:热带雨淋      更新:2021-02-20 05:16      字数:9322
  individuals to regulate by mutual agreement such things as regard them
  jointly; and regard no persons but themselves。 This question
  presents no difficulty; so long as the will of all the persons
  implicated remains unaltered; but since that will may change; it is
  often necessary; even in things in which they alone are concerned;
  that they should enter into engagements with one another; and when
  they do; it is fit; as a general rule; that those engagements should
  be kept。 Yet; in the laws; probably; of every country; this general
  rule has some exceptions。 Not only persons are not held to engagements
  which violate the rights of third parties; but it is sometimes
  considered a sufficient reason for releasing them from an
  engagement; that it is injurious to themselves。 In this and most other
  civilised countries; for example; an engagement by which a person
  should sell himself; or allow himself to be sold; as a slave; would be
  null and void; neither enforced by law nor by opinion。 The ground
  for thus limiting his power of voluntarily disposing of his own lot in
  life; is apparent; and is very clearly seen in this extreme case。
  The reason for not interfering; unless for the sake of others; with
  a person's voluntary acts; is consideration for his liberty。 His
  voluntary choice is evidence that what he so chooses is desirable;
  or at least endurable; to him; and his good is on the whole best
  provided for by allowing him to take his own means of pursuing it。 But
  by selling himself for a slave; be abdicates his liberty; he
  foregoes any future use of it beyond that single act。 He therefore
  defeats; in his own case; the very purpose which is the
  justification of allowing him to dispose of himself。 He is no longer
  free; but is thenceforth in a position which has no longer the
  presumption in its favour; that would be afforded by his voluntarily
  remaining in it。 The principle of freedom cannot require that he
  should be free not to be free。 It is not freedom to be allowed to
  alienate his freedom。 These reasons; the force of which is so
  conspicuous in this peculiar case; are evidently of far wider
  application; yet a limit is everywhere set to them by the
  necessities of life; which continually require; not indeed that we
  should resign our freedom; but that we should consent to this and
  the other limitation of it。 The principle; however; which demands
  uncontrolled freedom of action in all that concerns only the agents
  themselves; requires that those who have become bound to one
  another; in things which concern no third party; should be able to
  release one another from the engagement: and even without such
  voluntary release there are perhaps no contracts or engagements;
  except those that relate to money or money's worth; of which one can
  venture to say that there ought to be no liberty whatever of
  retractation。
  Baron Wilhelm von Humboldt; in the excellent essay from which I have
  already quoted; states it as his conviction; that engagements which
  involve personal relations or services should never be legally binding
  beyond a limited duration of time; and that the most important of
  these engagements; marriage; having the peculiarity that its objects
  are frustrated unless the feelings of both the parties are in
  harmony with it; should require nothing more than the declared will of
  either party to dissolve it。 This subject is too important; and too
  complicated; to be discussed in a parenthesis; and I touch on it
  only so far as is necessary for purposes of illustration。 If the
  conciseness and generality of Baron Humboldt's dissertation had not
  obliged him in this instance to content himself with enunciating his
  conclusion without discussing the premises; he would doubtless have
  recognised that the question cannot be decided on grounds so simple as
  those to which he confines himself。 When a person; either by express
  promise or by conduct; has encouraged another to rely upon his
  continuing to act in a certain way… to build expectations and
  calculations; and stake any part of his plan of life upon that
  supposition… a new series of moral obligations arises on his part
  towards that person; which may possibly be overruled; but cannot be
  ignored。 And again; if the relation between two contracting parties
  has been followed by consequences to others; if it has placed third
  parties in any peculiar position; or; as in the case of marriage;
  has even called third parties into existence; obligations arise on the
  part of both the contracting parties towards those third persons;
  the fulfilment of which; or at all events the mode of fulfilment; must
  be greatly affected by the continuance or disruption of the relation
  between the original parties to the contract。 It does not follow;
  nor can I admit; that these obligations extend to requiring the
  fulfilment of the contract at all costs to the happiness of the
  reluctant party; but they are a necessary element in the question; and
  even if; as Von Humboldt maintains; they ought to make no difference
  in the legal freedom of the parties to release themselves from the
  engagement (and I also hold that they ought not to make much
  difference); they necessarily make a great difference in the moral
  freedom。 A person is bound to take all these circumstances into
  account before resolving on a step which may affect such important
  interests of others; and if he does not allow proper weight to those
  interests; he is morally responsible for the wrong。 I have made
  these obvious remarks for the better illustration of the general
  principle of liberty; and not because they are at all needed on the
  particular question; which; on the contrary; is usually discussed as
  if the interest of children was everything; and that of grown
  persons nothing。
  I have already observed that; owing to the absence of any recognised
  general principles; liberty is often granted where it should be
  withheld; as well as withheld where it should be granted; and one of
  the cases in which; in the modern European world; the sentiment of
  liberty is the strongest; is a case where; in my view; it is
  altogether misplaced。 A person should be free to do as he likes in his
  own concerns; but he ought not to be free to do as he likes in
  acting for another; under the pretext that the affairs of the other
  are his own affairs。 The State; while it respects the liberty of
  each in what specially regards himself; is bound to maintain a
  vigilant control over his exercise of any power which it allows him to
  possess over others。 This obligation is almost entirely disregarded in
  the case of the family relations; a case; in its direct influence on
  human happiness; more important than all others taken together。 The
  almost despotic power of husbands over wives needs not be enlarged
  upon here; because nothing more is needed for the complete removal
  of the evil than that wives should have the same rights; and should
  receive the protection of law in the same manner; as all other
  persons; and because; on this subject; the defenders of established
  injustice do not avail themselves of the plea of liberty; but stand
  forth openly as the champions of power。 It is in the case of
  children that misapplied notions of liberty are a real obstacle to the
  fulfilment by the State of its duties。 One would almost think that a
  man's children were supposed to be literally; and not
  metaphorically; a part of himself; so jealous is opinion of the
  smallest interference of law with his absolute and exclusive control
  over them; more jealous than of almost any interference with his own
  freedom of action: so much less do the generality of mankind value
  liberty than power。 Consider; for example; the case of education。 Is
  it not almost a self…evident axiom; that the State should require
  and compel the education; up to a certain standard; of every human
  being who is born its citizen? Yet who is there that is not afraid
  to recognise and assert this truth? Hardly any one indeed will deny
  that it is one of the most sacred duties of the parents (or; as law
  and usage now stand; the father); after summoning a human being into
  the world; to give to that being an education fitting him to perform
  his part well in life towards others and towards himself。 But while
  this is unanimously declared to be the father's duty; scarcely
  anybody; in this country; will bear to hear of obliging him to perform
  it。 Instead of his being required to make any exertion or sacrifice
  for securing education to his child; it is left to his choice to
  accept it or not when it is provided gratis! It still remains
  unrecognised; that to bring a child into existence without a fair
  prospect of being able; not only to provide food for