If a
man is on a plank in the deep sea which will only float one, and
a stranger lays hold of it, he will thrust him off if he can.
When the state finds itself in a similar position, it does the
same thing.
The considerations which answer the argument of equal rights also
answer the objections to treating man as a thing, and the like.
If a man lives in society, he is liable to find himself so
treated. The degree of civilization which a people has reached,
no doubt, is marked by their anxiety to do as they would be done
by. It may be the destiny of man that the social instincts shall
grow to control his actions absolutely, even in anti-social
situations. But they have not yet done so, and as the rules of
law are or should be based upon a morality which is generally
accepted, no rule founded on a theory of absolute unselfishness
can be laid down without a breach between law and working
beliefs.
If it be true, as I shall presently try to show, that the general
principles of criminal and civil liability are the same, it will
follow from that alone that theory and fact agree in frequently
punishing those who have been guilty [45] of no moral wrong, and
who could not be condemned by any standard that did not avowedly
disregard the personal peculiarities of the individuals
concerned.
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