James Fitzjames Stephen
Sir James Fitzjames Stephen (March 3, 1829 – March 11, 1894) was an English lawyer and judge, created 1st Baronet Stephen by Queen Victoria. Through his rebuttal of John Stuart Mill's On Liberty, titled Liberty, Equality, Fraternity he established himself as a conservative philosopher.
Quotes
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- The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.
- A General View Of The Criminal Law Of England (1863)
Liberty, Equality, Fraternity (1873-1874)
[edit]- I am not the advocate of Slavery, Caste, and Hatred, nor do I deny that a sense may be given to the words, Liberty, Equality, and Fraternity, in which they may be regarded as good. I wish to assert with respect to them two propositions.
First, that in the present day even those who use those words most rationally — that is to say, as the names of elements of social life which, like others, have their advantages and disadvantages according to time, place, and circumstance — have a great disposition to exaggerate their advantages and to deny the existence, or at any rate to underrate the importance, of their disadvantages.
Next, that whatever signification be attached to them, these words are ill-adapted to be the creed of a religion, that the things which they denote are not ends in themselves, and that when used collectively the words do not typify, however vaguely, any state of society which a reasonable man ought to regard with enthusiasm or self-devotion.- Ch. 1
- Parliamentary government is simply a mild and disguised form of compulsion. We agree to try strength by counting heads instead of breaking heads, but the principle is exactly the same... The minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority.
- Ch. 2 : The Liberty of Thought and Discussion
- To me this question whether liberty is a good or a bad thing appears as irrational as the question whether fire is a good or a bad thing. It is both good and bad according to time, place, and circumstance, and a complete answer to the question, In what cases is liberty good and in what cases is it bad? would involve not merely a universal history of mankind, but a complete solution of the problems which such a history would offer.
- Ch. 2
- Originality consists in thinking for yourself, not in thinking differently from other people.
- Persuasion, indeed, is a kind of force. It consists in showing a person the consequences of his actions. It is, in a word, force applied through the mind.
- Ch. 3 : The Distinction Between the Temporal and Spiritual Power
- To try to regulate the internal affairs of a family, the relations of love or friendship, or many other things of the same sort, by law or by the coercion of public opinion, is like trying to pull an eyelash out of a man’s eye with a pair of tongs. They may put out the eye, but they will never get hold of the eyelash
- Ch. 4 : The Doctrine of Liberty in its Application to Morals
- Men have an all but incurable propensity to try to prejudge all the great questions which interest them by stamping their prejudices upon their language. Law, in many cases, means not only a command, but a beneficent command. Liberty means not the bare absence of restraint, but the absence of injurious restraint. Justice means not mere impartiality in applying general rules to particular cases, but impartiality in applying beneficent general rules to particular cases. Some people half consciously use the word "true" as meaning useful as well as true. Of course language can never be made absolutely neutral and colourless; but unless its ambiguities are understood, accuracy of thought is impossible, and the injury done is proportionate to the logical force and general vigour of character of those who are misled.
- Ch. 4
- To try to make men equal by altering social arrangements is like trying to make the cards of equal value by shuffling the pack.
- Ch. 5 : Equality
- The result of cutting [political power] up into little bits is simply that the man who can sweep the greatest number into one heap will govern the rest... In a pure democracy the ruling men will be the wirepullers and their friends; but they will no more be on an equality with the voters than soldiers of Ministers of State are on an equality with the subjects of monarchy.
- Ch. 5
- To say that the law of force is abandoned because force is regular, unopposed, and beneficially exercised, is to say that day and night are now such well-established institutions that the sun and moon are mere superfluities.
- Ch. 5
Quotes about James Fitzjames Stephen
[edit]- Stephen's book [Liberty, Equality, Fraternity] is the finest exposition of conservative thought in the latter half of the nineteenth century. It is a robust polemic, sometimes extravagant in its epigrams, but tinged throughout by that belief in the religious basis of human society which has been the strength of conservatism from Burke to to-day. It is a frank and die-hard statement of the ideas dominant among the educated and governing classes of English society.
- Ernest Barker, Political Thought in England 1848 to 1914 (1915; 2nd. edn. 1928), p. 172
- I did not know that the same ground had already been covered by Mr. Justice Stephen in his book Liberty, Equality, Fraternity published in 1873. It was not until much later that I was with great difficulty able to obtain from the Holborn Public Library a copy of the book held together with an elastic band. I hope that, as a result of Professor Hart's criticism of it, more interest will now be aroused in a valuable work. Although I missed altogether one cogent argument advanced by Stephen, I find great similarity between his view and mine on the principles which should affect the use of the criminal law for the enforcement of morals. Commenting on the work of Mr. Justice Stephen and myself, Professor Hart noted that "the similarity in the general tone and sometimes in the detail of their argument is very great". The fact that we reached our conclusions independently gives additional force to Professor Hart's comment (which, however it may have been intended, I regard as complimentary) that they reveal "the outlook characteristic of the English judiciary".
- Lord Devlin, The Enforcement of Morals (1965), p. vii
- His criticism of Mill is to be found in the sombre and impressive book Liberty, Equality, Fraternity, which he wrote as a direct reply to Mill's essay On Liberty. It is evident from the tone of the book that Stephen thought he had found crushing arguments against Mill and had demonstrated that the law might justifiably enforce morality as such or, as he said, that the law should be "a persecution of the grosser forms of vice." Nearly a century later, on the publication of the Wolfenden Committee's report, Lord Devlin, now a member of the House of Lords and a most distinguished writer on the criminal law, in his essay on The Enforcement of Morals took as his target the Report's contention "that there must be a realm of morality and immorality which is not the law's business" and argued in opposition to it that "the suppression of vice is as such the law's business as the suppression of subversive activities."
Though a century divides these two legal writers, the similarity in the general tone and sometimes in the detail of their arguments is very great.- H. L. A. Hart, Law, Liberty, and Morality (1963), p. 16
- Sir James Stephen was eminently unromantic. His qualities were those of solidity and force; he preponderated with a character of formidable grandeur, with a massive and rugged intellectual sanity, a colossal commonsense.
- Lytton Strachey, Characters and Commentaries (1933), p. 117
- In all he wrote there are words of wisdom and strength. Often, in years to come, when sentiment is tyrannous and when people are afraid to speak plain, because unpleasant, things, will this sturdy spokesman of stern truths, the last of the Benthamites, be missed.
- 'Death of Sir James Stephen', The Times (13 March 1894), p. 11
