"Yes, but," comes the obvious rejoinder, "as there is no deed by which the members of a nation are incorporated -- as there neither is, nor ever was, a specification of purposes for which the union was formed, there exist no limits; and, consequently, the power of the majority is unlimited."Evidently it must be admitted that the hypothesis of a social contract, either under the shape assumed by Hobbes or under the shape assumed by Rousseau, is baseless. Nay more, it must be admitted that even had such a contract once been formed, it could not be binding on the posterity of those who formed it. Moreover, if any say that in the absence of those Stations to its powers which a deed of incorporation might imply, there is nothing to prevent a majority from imposing its will on a minority by force, assent must be given an assent, however, joined with the comment that if the superior force of the majority is its justification, then the superior force of a despot backed by an adequate army, is also justified: the problem lapses. What we here seek is some higher warrant for the subordination of minority to majority than that arising from inability to resist physical coercion. Even Austin, anxious as he is to establish the unquestionable authority of positive law, and assuming, as he does, an absolute sovereignty of some kind, monarchic, aristocratic, constitutional, or popular, as the source of its unquestionable authority, is obliged, in the last resort, to admit a moral limit to its action over the community. While insisting, in pursuance of his rigid theory of sovereignty, that a sovereign body originating from the people "is legally free to abridge their political liberty, at its own pleasure or discretion," he allows that "a government may be hindered by positive morality from abridging the political liberty which it leaves or grants to its subjects."(4*) Hence, we have to find, not a physical justification, but a moral justification, for the supposed absolute power of the majority.
This will at once draw forth the rejoinder -- "Of course, in the absence of any agreement, with its implied limitations, the rule of the majority is unlimited; because it is more just that the majority should have its way than that the minority should have its way." A very reasonable rejoinder this seems until there comes the re-rejoinder. We may oppose to it the equally tenable proposition that, in the absence of an agreement, the supremacy of a majority over a minority does not exist at all. It is co-operation of some kind, from which there arise these powers and obligations of majority and minority; and in the absence of any agreement to co-operate, such powers and obligations are also absent.
Here the argument apparently ends in a dead lock. Under the existing condition of things, no moral origin seems assignable either for the sovereignty of the majority or for the limitation of its sovereignty. But further consideration reveals a solution of the difficulty. For if, dismissing all thought of any hypothetical agreement to cooperate heretofore made, we ask what would be the agreement into which citizens would now enter with practical unanimity, we get a sufficiently clear answer; and with it a sufficiently clear justification for the rule of the majority inside a certain sphere, but not outside that sphere.
Let us first observe a few of the limitations which at once become apparent.
Were all Englishmen now asked if they would agree to co-operate for the teaching of religion, and would give the majority power to fix the creed and the forms of worship, there would come a very emphatic "No" from a large part of them. If, in pursuance of a proposal to revive sumptuary laws, the inquiry were made whether they would bind themselves to abide by the will of the majority in respect of the fashions and qualities of their clothes, nearly all of them would refuse. In like manner if (to take an actual question of the day) people were polled to ascertain whether, in respect of the beverages they drank, they would accept the decision of the greater number, certainly half, and probably more than half, would be unwilling. Similarly with respect to many other actions which most men now-a-days regard as of purely private concern. Whatever desire there might be to co-operate for carrying on, or regulating, such actions, would be far from a unanimous desire. Manifestly, then, had social co-operation to be commenced by ourselves, and had its purposes to be specified before consent to co-operate could be obtained, there would be large parts of human conduct in respect of which co-operation would be declined; and in respect of which, consequently, no authority by the majority over the minority could be rightfully exercised.
