ON THE CONNEXION BETWEEN JUSTICE AND UTILITY.
In all ages of speculation, one of the strongest obstacles to the
reception of the doctrine that Utility or Happiness is the criterion of
right and wrong, has been drawn from the idea of Justice, The powerful
sentiment, and apparently clear perception, which that word recalls with
a rapidity and certainty resembling an instinct, have seemed to the
majority of thinkers to point to an inherent quality in things; to show
that the Just must have an existence in Nature as something
absolute-generically distinct from every variety of the Expedient, and,
in idea, opposed to it, though (as is commonly acknowledged) never, in
the long run, disjoined from it in fact.
In the case of this, as of our other moral sentiments, there is no
necessary connexion between the question of its origin, and that of its
binding force. That a feeling is bestowed on us by Nature, does not
necessarily legitimate all its promptings. The feeling of justice might
be a peculiar instinct, and might yet require, like our other instincts,
to be controlled and enlightened by a higher reason. If we have
intellectual instincts, leading us to judge in a particular way, as well
as animal instincts that prompt us to act in a particular way, there is
no necessity that the former should be more infallible in their sphere
than the latter in theirs: it may as well happen that wrong judgments
are occasionally suggested by those, as wrong actions by these. But
though it is one thing to believe that we have natural feelings of
justice, and another to acknowledge them as an ultimate criterion of
conduct, these two opinions are very closely connected in point of fact.
Mankind are always predisposed to believe that any subjective feeling,
not otherwise accounted for, is a revelation of some objective reality.
Our present object is to determine whether the reality, to which the
feeling of justice corresponds, is one which needs any such special
revelation; whether the justice or injustice of an action is a thing
intrinsically peculiar, and distinct from all its other qualities, or
only a combination of certain of those qualities, presented under a
peculiar aspect. For the purpose of this inquiry, it is practically
important to consider whether the feeling itself, of justice and
injustice, is _sui generis_ like our sensations of colour and taste, or
a derivative feeling, formed by a combination of others. And this it is
the more essential to examine, as people are in general willing enough
to allow, that objectively the dictates of justice coincide with a part
of the field of General Expediency; but inasmuch as the subjective
mental feeling of Justice is different from that which commonly attaches
to simple expediency, and, except in extreme cases of the latter, is far
more imperative in its demands, people find it difficult to see, in
Justice, only a particular kind or branch of general utility, and think
that its superior binding force requires a totally different origin.
To throw light upon this question, it is necessary to attempt to
ascertain what is the distinguishing character of justice, or of
injustice: what is the quality, or whether there is any quality,
attributed in common to all modes of conduct designated as unjust (for
justice, like many other moral attributes, is best defined by its
opposite), and distinguishing them from such modes of conduct as are
disapproved, but without having that particular epithet of
disapprobation applied to them. If, in everything which men are
accustomed to characterize as just or unjust, some one common attribute
or collection of attributes is always present, we may judge whether this
particular attribute or combination of attributes would be capable of
gathering round it a sentiment of that peculiar character and intensity
by virtue of the general laws of our emotional constitution, or whether
the sentiment is inexplicable, and requires to be regarded as a special
provision of Nature. If we find the former to be the case, we shall, in
resolving this question, have resolved also the main problem: if the
latter, we shall have to seek for some other mode of investigating it.
* * * * *
To find the common attributes of a variety of objects, it is necessary
to begin, by surveying the objects themselves in the concrete. Let us
therefore advert successively to the various modes of action, and
arrangements of human affairs, which are classed, by universal or widely
spread opinion, as Just or as Unjust. The things well known to excite
the sentiments associated with those names, are of a very multifarious
character. I shall pass them rapidly in review, without studying any
particular arrangement.
In the first place, it is mostly considered unjust to deprive any one
of his personal liberty, his property, or any other thing which belongs
to him by law. Here, therefore, is one instance of the application of
the terms just and unjust in a perfectly definite sense, namely, that it
is just to respect, unjust to violate, the _legal rights_ of any one.
But this judgment admits of several exceptions, arising from the other
forms in which the notions of justice and injustice present themselves.
For example, the person who suffers the deprivation may (as the phrase
is) have _forfeited_ the rights which he is so deprived of: a case to
which we shall return presently. But also,
Secondly; the legal rights of which he is deprived, may be rights which
_ought_ not to have belonged to him; in other words, the law which
confers on him these rights, may be a bad law. When it is so, or when
(which is the same thing for our purpose) it is supposed to be so,
opinions will differ as to the justice or injustice of infringing it.
Some maintain that no law, however bad, ought to be disobeyed by an
individual citizen; that his opposition to it, if shown at all, should
only be shown in endeavouring to get it altered by competent authority.
This opinion (which condemns many of the most illustrious benefactors of
mankind, and would often protect pernicious institutions against the
only weapons which, in the state of things existing at the time, have
any chance of succeeding against them) is defended, by those who hold
it, on grounds of expediency; principally on that of the importance, to
the common interest of mankind, of maintaining inviolate the sentiment
of submission to law. Other persons, again, hold the directly contrary
opinion, that any law, judged to be bad, may blamelessly be disobeyed,
even though it be not judged to be unjust, but only inexpedient; while
others would confine the licence of disobedience to the case of unjust
laws: but again, some say, that all laws which are inexpedient are
unjust; since every law imposes some restriction on the natural liberty
of mankind, which restriction is an injustice, unless legitimated by
tending to their good. Among these diversities of opinion, it seems to
be universally admitted that there may be unjust laws, and that law,
consequently, is not the ultimate criterion of justice, but may give to
one person a benefit, or impose on another an evil, which justice
condemns. When, however, a law is thought to be unjust, it seems always
to be regarded as being so in the same way in which a breach of law is
unjust, namely, by infringing somebody's right; which, as it cannot in
this case be a legal right, receives a different appellation, and is
called a moral right. We may say, therefore, that a second case of
injustice consists in taking or withholding from any person that to
which he has a _moral right_.
Thirdly, it is universally considered just that each person should
obtain that (whether good or evil) which he _deserves_; and unjust that
he should obtain a good, or be made to undergo an evil, which he does
not deserve. This is, perhaps, the clearest and most emphatic form in
which the idea of justice is conceived by the general mind. As it
involves the notion of desert, the question arises, what constitutes
desert? Speaking in a general way, a person is understood to deserve
good if he does right, evil if he does wrong; and in a more particular
sense, to deserve good from those to whom he does or has done good, and
evil from those to whom he does or has done evil. The precept of
returning good for evil has never been regarded as a case of the
fulfilment of justice, but as one in which the claims of justice are
waived, in obedience to other considerations.
Fourthly, it is confessedly unjust to _break faith_ with any one: to
violate an engagement, either express or implied, or disappoint
expectations raised by our own conduct, at least if we have raised those
expectations knowingly and voluntarily. Like the other obligations of
justice already spoken of, this one is not regarded as absolute, but as
capable of being overruled by a stronger obligation of justice on the
other side; or by such conduct on the part of the person concerned as is
deemed to absolve us from our obligation to him, and to constitute a
_forfeiture_ of the benefit which he has been led to expect.
Fifthly, it is, by universal admission, inconsistent with justice to be
_partial_; to show favour or preference to one person over another, in
matters to which favour and preference do not properly apply.
Impartiality, however, does not seem to be regarded as a duty in itself,
but rather as instrumental to some other duty; for it is admitted that
favour and preference are not always censurable, and indeed the cases in
which they are condemned are rather the exception than the rule. A
person would be more likely to be blamed than applauded for giving his
family or friends no superiority in good offices over strangers, when he
could do so without violating any other duty; and no one thinks it
unjust to seek one person in preference to another as a friend,
connexion, or companion. Impartiality where rights are concerned is of
course obligatory, but this is involved in the more general obligation
of giving to every one his right. A tribunal, for example, must be
impartial, because it is bound to award, without regard to any other
consideration, a disputed object to the one of two parties who has the
right to it. There are other cases in which impartiality means, being
solely influenced by desert; as with those who, in the capacity of
judges, preceptors, or parents, administer reward and punishment as
such. There are cases, again, in which it means, being solely influenced
by consideration for the public interest; as in making a selection among
candidates for a Government employment. Impartiality, in short, as an
obligation of justice, may be said to mean, being exclusively influenced
by the considerations which it is supposed ought to influence the
particular case in hand; and resisting the solicitation of any motives
which prompt to conduct different from what those considerations would
dictate.
Nearly allied to the idea of impartiality, is that of _equality_; which
often enters as a component part both into the conception of justice and
into the practice of it, and, in the eyes of many persons, constitutes
its essence. But in this, still more than in any other case, the notion
of justice varies in different persons, and always conforms in its
variations to their notion of utility. Each person maintains that
equality is the dictate of justice, except where he thinks that
expediency requires inequality. The justice of giving equal protection
to the rights of all, is maintained by those who support the most
outrageous inequality in the rights themselves. Even in slave countries
it is theoretically admitted that the rights of the slave, such as they
are, ought to be as sacred as those of the master; and that a tribunal
which fails to enforce them with equal strictness is wanting in justice;
while, at the same time, institutions which leave to the slave scarcely
any rights to enforce, are not deemed unjust, because they are not
deemed inexpedient. Those who think that utility requires distinctions
of rank, do not consider it unjust that riches and social privileges
should be unequally dispensed; but those who think this inequality
inexpedient, think it unjust also. Whoever thinks that government is
necessary, sees no injustice in as much inequality as is constituted by
giving to the magistrate powers not granted to other people. Even among
those who hold levelling doctrines, there are as many questions of
justice as there are differences of opinion about expediency. Some
Communists consider it unjust that the produce of the labour of the
community should be shared on any other principle than that of exact
equality; others think it just that those should receive most whose
needs are greatest; while others hold that those who work harder, or who
produce more, or whose services are more valuable to the community, may
justly claim a larger quota in the division of the produce. And the
sense of natural justice may be plausibly appealed to in behalf of every
one of these opinions.
Among so many diverse applications of the term Justice, which yet is not
regarded as ambiguous, it is a matter of some difficulty to seize the
mental link which holds them together, and on which the moral sentiment
adhering to the term essentially depends. Perhaps, in this
embarrassment, some help may be derived from the history of the word, as
indicated by its etymology.
In most, if not in all languages, the etymology of the word which
corresponds to Just, points to an origin connected either with positive
law, or with that which was in most cases the primitive form of
law-authoritative custom. _Justum_ is a form of _jussum_, that which has
been ordered. _Jus_ is of the same origin. _Dichanou_ comes from
_dichae_, of which the principal meaning, at least in the historical
ages of Greece, was a suit at law. Originally, indeed, it meant only the
mode or _manner_ of doing things, but it early came to mean the
_prescribed_ manner; that which the recognized authorities, patriarchal,
judicial, or political, would enforce. _Recht_, from which came _right_
and _righteous_, is synonymous with law. The original meaning, indeed,
of _recht_ did not point to law, but to physical straightness; as
_wrong_ and its Latin equivalents meant twisted or tortuous; and from
this it is argued that right did not originally mean law, but on the
contrary law meant right. But however this may be, the fact that _recht_
and _droit_ became restricted in their meaning to positive law, although
much which is not required by law is equally necessary to moral
straightness or rectitude, is as significant of the original character
of moral ideas as if the derivation had been the reverse way. The courts
of justice, the administration of justice, are the courts and the
administration of law. _La justice_, in French, is the established term
for judicature. There can, I think, be no doubt that the _idée mère_,
the primitive element, in the formation of the notion of justice, was
conformity to law. It constituted the entire idea among the Hebrews, up
to the birth of Christianity; as might be expected in the case of a
people whose laws attempted to embrace all subjects on which precepts
were required, and who believed those laws to be a direct emanation from
the Supreme Being. But other nations, and in particular the Greeks and
Romans, who knew that their laws had been made originally, and still
continued to be made, by men, were not afraid to admit that those men
might make bad laws; might do, by law, the same things, and from the
same motives, which, if done by individuals without the sanction of law,
would be called unjust. And hence the sentiment of injustice came to be
attached, not to all violations of law, but only to violations of such
laws as _ought_ to exist, including such as ought to exist but do not;
and to laws themselves, if supposed to be contrary to what ought to be
law. In this manner the idea of law and of its injunctions was still
predominant in the notion of justice, even when the laws actually in
force ceased to be accepted as the standard of it.
It is true that mankind consider the idea of justice and its obligations
as applicable to many things which neither are, nor is it desired that
they should be, regulated by law. Nobody desires that laws should
interfere with the whole detail of private life; yet every one allows
that in all daily conduct a person may and does show himself to be
either just or unjust. But even here, the idea of the breach of what
ought to be law, still lingers in a modified shape. It would always give
us pleasure, and chime in with our feelings of fitness, that acts which
we deem unjust should be punished, though we do not always think it
expedient that this should be done by the tribunals. We forego that
gratification on account of incidental inconveniences. We should be glad
to see just conduct enforced and injustice repressed, even in the
minutest details, if we were not, with reason, afraid of trusting the
magistrate with so unlimited an amount of power over individuals. When
we think that a person is bound in justice to do a thing, it is an
ordinary form of language to say, that he ought to be compelled to do
it. We should be gratified to see the obligation enforced by anybody who
had the power. If we see that its enforcement by law would be
inexpedient, we lament the impossibility, we consider the impunity given
to injustice as an evil, and strive to make amends for it by bringing a
strong expression of our own and the public disapprobation to bear upon
the offender. Thus the idea of legal constraint is still the generating
idea of the notion of justice, though undergoing several transformations
before that notion, as it exists in an advanced state of society,
becomes complete.
The above is, I think, a true account, as far as it goes, of the origin
and progressive growth of the idea of justice. But we must observe, that
it contains, as yet, nothing to distinguish that obligation from moral
obligation in general. For the truth is, that the idea of penal
sanction, which is the essence of law, enters not only into the
conception of injustice, but into that of any kind of wrong. We do not
call anything wrong, unless we mean to imply that a person ought to be
punished in some way or other for doing it; if not by law, by the
opinion of his fellow creatures; if not by opinion, by the reproaches of
his own conscience. This seems the real turning point of the distinction
between morality and simple expediency. It is a part of the notion of
Duty in every one of its forms, that a person may rightfully be
compelled to fulfil it. Duty is a thing which may be _exacted_ from a
person, as one exacts a debt. Unless we think that it might be exacted
from him, we do not call it his duty. Reasons of prudence, or the
interest of other people, may militate against actually exacting it; but
the person himself, it is clearly understood, would not be entitled to
complain. There are other things, on the contrary, which we wish that
people should do, which we like or admire them for doing, perhaps
dislike or despise them for not doing, but yet admit that they are not
bound to do; it is not a case of moral obligation; we do not blame them,
that is, we do not think that they are proper objects of punishment. How
we come by these ideas of deserving and not deserving punishment, will
appear, perhaps, in the sequel; but I think there is no doubt that this
distinction lies at the bottom of the notions of right and wrong; that
we call any conduct wrong, or employ instead, some other term of dislike
or disparagement, according as we think that the person ought, or ought
not, to be punished for it; and we say that it would be right to do so
and so, or merely that it would be desirable or laudable, according as
we would wish to see the person whom it concerns, compelled or only
persuaded and exhorted, to act in that manner.[C]
This, therefore, being the characteristic difference which marks off,
not justice, but morality in general, from the remaining provinces of
Expediency and Worthiness; the character is still to be sought which
distinguishes justice from other branches of morality. Now it is known
that ethical writers divide moral duties into two classes, denoted by
the ill-chosen expressions, duties of perfect and of imperfect
obligation; the latter being those in which, though the act is
obligatory, the particular occasions of performing it are left to our
choice; as in the case of charity or beneficence, which we are indeed
bound to practise, but not towards any definite person, nor at any
prescribed time. In the more precise language of philosophic jurists,
duties of perfect obligation are those duties in virtue of which a
correlative right resides in some person or persons; duties of imperfect
obligation are those moral obligations which do not give birth to any
right. I think it will be found that this distinction exactly coincides
with that which exists between justice and the other obligations of
morality. In our survey of the various popular acceptations of justice,
the term appeared generally to involve the idea of a personal right--a
claim on the part of one or more individuals, like that which the law
gives when it confers a proprietary or other legal right. Whether the
injustice consists in depriving a person of a possession, or in breaking
faith with him, or in treating him worse than he deserves, or worse than
other people who have no greater claims, in each case the supposition
implies two things--a wrong done, and some assignable person who is
wronged. Injustice may also be done by treating a person better than
others; but the wrong in this case is to his competitors, who are also
assignable persons. It seems to me that this feature in the case--a
right in some person, correlative to the moral obligation--constitutes
the specific difference between justice, and generosity or beneficence.
Justice implies something which it is not only right to do, and wrong
not to do, but which some individual person can claim from us as his
moral right. No one has a moral right to our generosity or beneficence,
because we are not morally bound to practise those virtues towards any
given individual. And it will be found, with respect to this as with
respect to every correct definition, that the instances which seem to
conflict with it are those which most confirm it. For if a moralist
attempts, as some have done, to make out that mankind generally, though
not any given individual, have a right to all the good we can do them,
he at once, by that thesis, includes generosity and beneficence within
the category of justice. He is obliged to say, that our utmost exertions
are due to our fellow creatures, thus assimilating them to a debt; or
that nothing less can be a sufficient _return_ for what society does for
us, thus classing the case as one of gratitude; both of which are
acknowledged cases of justice. Wherever there is a right, the case is
one of justice, and not of the virtue of beneficence: and whoever does
not place the distinction between justice and morality in general where
we have now placed it, will be found to make no distinction between them
at all, but to merge all morality in justice.
Having thus endeavoured to determine the distinctive elements which
enter into the composition of the idea of justice, we are ready to enter
on the inquiry, whether the feeling, which accompanies the idea, is
attached to it by a special dispensation of nature, or whether it could
have grown up, by any known laws, out of the idea itself; and in
particular, whether it can have originated in considerations of general
expediency.
I conceive that the sentiment itself does not arise from anything which
would commonly, or correctly, be termed an idea of expediency; but that,
though the sentiment does not, whatever is moral in it does.
We have seen that the two essential ingredients in the sentiment of
justice are, the desire to punish a person who has done harm, and the
knowledge or belief that there is some definite individual or
individuals to whom harm has been done.
Now it appears to me, that the desire to punish a person who has done
harm to some individual, is a spontaneous outgrowth from two sentiments,
both in the highest degree natural, and which either are or resemble
instincts; the impulse of self-defence, and the feeling of sympathy.
It is natural to resent, and to repel or retaliate, any harm done or
attempted against ourselves, or against those with whom we sympathize.
The origin of this sentiment it is not necessary here to discuss.
Whether it be an instinct or a result of intelligence, it is, we know,
common to all animal nature; for every animal tries to hurt those who
have hurt, or who it thinks are about to hurt, itself or its young.
Human beings, on this point, only differ from other animals in two
particulars. First, in being capable of sympathizing, not solely with
their offspring, or, like some of the more noble animals, with some
superior animal who is kind to them, but with all human, and even with
all sentient beings. Secondly, in having a more developed intelligence,
which gives a wider range to the whole of their sentiments, whether
self-regarding or sympathetic. By virtue of his superior intelligence,
even apart from his superior range of sympathy, a human being is capable
of apprehending a community of interest between himself and the human
society of which he forms a part, such that any conduct which threatens
the security of the society generally, is threatening to his own, and
calls forth his instinct (if instinct it be) of self-defence. The same
superiority of intelligence, joined to the power of sympathizing with
human beings generally, enables him to attach himself to the collective
idea of his tribe, his country, or mankind, in such a manner that any
act hurtful to them rouses his instinct of sympathy, and urges him to
resistance.
The sentiment of justice, in that one of its elements which consists of
the desire to punish, is thus, I conceive, the natural feeling of
retaliation or vengeance, rendered by intellect and sympathy applicable
to those injuries, that is, to those hurts, which wound us through, or
in common with, society at large. This sentiment, in itself, has nothing
moral in it; what is moral is, the exclusive subordination of it to the
social sympathies, so as to wait on and obey their call. For the natural
feeling tends to make us resent indiscriminately whatever any one does
that is disagreeable to us; but when moralized by the social feeling, it
only acts in the directions conformable to the general good; just
persons resenting a hurt to society, though not otherwise a hurt to
themselves, and not resenting a hurt to themselves, however painful,
unless it be of the kind which society has a common interest with them
in the repression of.
It is no objection against this doctrine to say, that when we feel our
sentiment of justice outraged, we are not thinking of society at large,
or of any collective interest, but only of the individual case. It is
common enough certainly, though the reverse of commendable, to feel
resentment merely because we have suffered pain; but a person whose
resentment is really a moral feeling, that is, who considers whether an
act is blameable before he allows himself to resent it--such a person,
though he may not say expressly to himself that he is standing up for
the interest of society, certainly does feel that he is asserting a rule
which is for the benefit of others as well as for his own. If he is not
feeling this--if he is regarding the act solely as it affects him
individually--he is not consciously just; he is not concerning himself
about the justice of his actions. This is admitted even by
anti-utilitarian moralists. When Kant (as before remarked) propounds as
the fundamental principle of morals, 'So act, that thy rule of conduct
might be adopted as a law by all rational beings,' he virtually
acknowledges that the interest of mankind collectively, or at least of
mankind indiscriminately, must be in the mind of the agent when
conscientiously deciding on the morality of the act. Otherwise he uses
words without a meaning: for, that a rule even of utter selfishness
could not _possibly_ be adopted by all rational beings--that there is
any insuperable obstacle in the nature of things to its adoption--cannot
be even plausibly maintained. To give any meaning to Kant's principle,
the sense put upon it must be, that we ought to shape our conduct by a
rule which all rational beings might adopt _with benefit to their
collective interest_.
To recapitulate: the idea of justice supposes two things; a rule of
conduct, and a sentiment which sanctions the rule. The first must be
supposed common to all mankind, and intended for their good. The other
(the sentiment) is a desire that punishment may be suffered by those who
infringe the rule. There is involved, in addition, the conception of
some definite person who suffers by the infringement; whose rights (to
use the expression appropriated to the case) are violated by it. And the
sentiment of justice appears to me to be, the animal desire to repel or
retaliate a hurt or damage to oneself, or to those with whom one
sympathizes, widened so as to include all persons, by the human capacity
of enlarged sympathy, and the human conception of intelligent
self-interest. From the latter elements, the feeling derives its
morality; from the former, its peculiar impressiveness, and energy of
self-assertion.
I have, throughout, treated the idea of a _right_ residing in the
injured person, and violated by the injury, not as a separate element in
the composition of the idea and sentiment, but as one of the forms in
which the other two elements clothe themselves. These elements are, a
hurt to some assignable person or persons on the one hand, and a demand
for punishment on the other. An examination of our own minds, I think,
will show, that these two things include all that we mean when we speak
of violation of a right. When we call anything a person's right, we mean
that he has a valid claim on society to protect him in the possession
of it, either by the force of law, or by that of education and opinion.
If he has what we consider a sufficient claim, on whatever account, to
have something guaranteed to him by society, we say that he has a right
to it. If we desire to prove that anything does not belong to him by
right, we think this done as soon as it is admitted that society ought
not to take measures for securing it to him, but should leave it to
chance, or to his own exertions. Thus, a person is said to have a right
to what he can earn in fair professional competition; because society
ought not to allow any other person to hinder him from endeavouring to
earn in that manner as much as he can. But he has not a right to three
hundred a-year, though he may happen to be earning it; because society
is not called on to provide that he shall earn that sum. On the
contrary, if he owns ten thousand pounds three per cent. stock, he _has_
a right to three hundred a-year; because society has come under an
obligation to provide him with an income of that amount.
To have a right, then, is, I conceive, to have something which society
ought to defend me in the possession of. If the objector goes on to ask
why it ought, I can give him no other reason than general utility. If
that expression does not seem to convey a sufficient feeling of the
strength of the obligation, nor to account for the peculiar energy of
the feeling, it is because there goes to the composition of the
sentiment, not a rational only but also an animal element, the thirst
for retaliation; and this thirst derives its intensity, as well as its
moral justification, from the extraordinarily important and impressive
kind of utility which is concerned. The interest involved is that of
security, to every one's feelings the most vital of all interests.
Nearly all other earthly benefits are needed by one person, not needed
by another; and many of them can, if necessary, be cheerfully foregone,
or replaced by something else; but security no human being can possibly
do without; on it we depend for all our immunity from evil, and for the
whole value of all and every good, beyond the passing moment; since
nothing but the gratification of the instant could be of any worth to
us, if we could be deprived of everything the next instant by whoever
was momentarily stronger than ourselves. Now this most indispensable of
all necessaries, after physical nutriment, cannot be had, unless the
machinery for providing it is kept unintermittedly in active play. Our
notion, therefore, of the claim we have on our fellow creatures to join
in making safe for us the very groundwork of our existence, gathers
feelings round it so much more intense than those concerned in any of
the more common cases of utility, that the difference in degree (as is
often the case in psychology) becomes a real difference in kind. The
claim assumes that character of absoluteness, that apparent infinity,
and incommensurability with all other considerations, which constitute
the distinction between the feeling of right and wrong and that of
ordinary expediency and inexpediency. The feelings concerned are so
powerful, and we count so positively on finding a responsive feeling in
others (all being alike interested), that _ought_ and _should_ grow into
_must_, and recognized indispensability becomes a moral necessity,
analogous to physical, and often not inferior to it in binding force.
If the preceding analysis, or something resembling it, be not the
correct account of the notion of justice; if justice be totally
independent of utility, and be a standard _per se_, which the mind can
recognize by simple introspection of itself; it is hard to understand
why that internal oracle is so ambiguous, and why so many things appear
either just or unjust, according to the light in which they are
regarded. We are continually informed that Utility is an uncertain
standard, which every different person interprets differently, and that
there is no safety but in the immutable, ineffaceable, and unmistakeable
dictates of Justice, which carry their evidence in themselves, and are
independent of the fluctuations of opinion. One would suppose from this
that on questions of justice there could be no controversy; that if we
take that for our rule, its application to any given case could leave us
in as little doubt as a mathematical demonstration. So far is this from
being the fact, that there is as much difference of opinion, and as
fierce discussion, about what is just, as about what is useful to
society. Not only have different nations and individuals different
notions of justice, but, in the mind of one and the same individual,
justice is not some one rule, principle, or maxim, but many, which do
not always coincide in their dictates, and in choosing between which, he
is guided either by some extraneous standard, or by his own personal
predilections.
For instance, there are some who say, that it is unjust to punish any
one for the sake of example to others; that punishment is just, only
when intended for the good of the sufferer himself. Others maintain the
extreme reverse, contending that to punish persons who have attained
years of discretion, for their own benefit, is despotism and injustice,
since if the matter at issue is solely their own good, no one has a
right to control their own judgment of it; but that they may justly be
punished to prevent evil to others, this being an exercise of the
legitimate right of self-defence. Mr. Owen, again, affirms that it is
unjust to punish at all; for the criminal did not make his own
character; his education, and the circumstances which surround him, have
made him a criminal, and for these he is not responsible. All these
opinions are extremely plausible; and so long as the question is argued
as one of justice simply, without going down to the principles which lie
under justice and are the source of its authority, I am unable to see
how any of these reasoners can be refuted. For, in truth, every one of
the three builds upon rules of justice confessedly true. The first
appeals to the acknowledged injustice of singling out an individual, and
making him a sacrifice, without his consent, for other people's benefit.
The second relies on the acknowledged justice of self-defence, and the
admitted injustice of forcing one person to conform to another's notions
of what constitutes his good. The Owenite invokes the admitted
principle, that it is unjust to punish any one for what he cannot help.
Each is triumphant so long as he is not compelled to take into
consideration any other maxims of justice than the one he has selected;
but as soon as their several maxims are brought face to face, each
disputant seems to have exactly as much to say for himself as the
others. No one of them can carry out his own notion of justice without
trampling upon another equally binding. These are difficulties; they
have always been felt to be such; and many devices have been invented to
turn rather than to overcome them. As a refuge from the last of the
three, men imagined what they called the freedom of the will; fancying
that they could not justify punishing a man whose will is in a
thoroughly hateful state, unless it be supposed to have come into that
state through no influence of anterior circumstances. To escape from the
other difficulties, a favourite contrivance has been the fiction of a
contract, whereby at some unknown period all the members of society
engaged to obey the laws, and consented to be punished for any
disobedience to them; thereby giving to their legislators the right,
which it is assumed they would not otherwise have had, of punishing
them, either for their own good or for that of society. This happy
thought was considered to get rid of the whole difficulty, and to
legitimate the infliction of punishment, in virtue of another received
maxim of justice, _volenti non fit injuria_; that is not unjust which is
done with the consent of the person who is supposed to be hurt by it. I
need hardly remark, that even if the consent were not a mere fiction,
this maxim is not superior in authority to the others which it is
brought in to supersede. It is, on the contrary, an instructive specimen
of the loose and irregular manner in which supposed principles of
justice grow up. This particular one evidently came into use as a help
to the coarse exigencies of courts of law, which are sometimes obliged
to be content with very uncertain presumptions, on account of the
greater evils which would often arise from any attempt on their part to
cut finer. But even courts of law are not able to adhere consistently to
the maxim, for they allow voluntary engagements to be set aside on the
ground of fraud, and sometimes on that of mere mistake or
misinformation.
Again, when the legitimacy of inflicting punishment is admitted, how
many conflicting conceptions of justice come to light in discussing the
proper apportionment of punishment to offences. No rule on this subject
recommends itself so strongly to the primitive and spontaneous sentiment
of justice, as the _lex talionis_, an eye for an eye and a tooth for a
tooth. Though this principle of the Jewish and of the Mahomedan law has
been generally abandoned in Europe as a practical maxim, there is, I
suspect, in most minds, a secret hankering after it; and when
retribution accidentally falls on an offender in that precise shape, the
general feeling of satisfaction evinced, bears witness how natural is
the sentiment to which this repayment in kind is acceptable. With many
the test of justice in penal infliction is that the punishment should be
proportioned to the offence; meaning that it should be exactly measured
by the moral guilt of the culprit (whatever be their standard for
measuring moral guilt): the consideration, what amount of punishment is
necessary to deter from the offence, having nothing to do with the
question of justice, in their estimation: while there are others to whom
that consideration is all in all; who maintain that it is not just, at
least for man, to inflict on a fellow creature, whatever may be his
offences, any amount of suffering beyond the least that will suffice to
prevent him from repeating, and others from imitating, his misconduct.
To take another example from a subject already once referred to. In a
co-operative industrial association, is it just or not that talent or
skill should give a title to superior remuneration? On the negative side
of the question it is argued, that whoever does the best he can,
deserves equally well, and ought not in justice to be put in a position
of inferiority for no fault of his own; that superior abilities have
already advantages more than enough, in the admiration they excite, the
personal influence they command, and the internal sources of
satisfaction attending them, without adding to these a superior share of
the world's goods; and that society is bound in justice rather to make
compensation to the less favoured, for this unmerited inequality of
advantages, than to aggravate it. On the contrary side it is contended,
that society receives more from the more efficient labourer; that his
services being more useful, society owes him a larger return for them;
that a greater share of the joint result is actually his work, and not
to allow his claim to it is a kind of robbery; that if he is only to
receive as much as others, he can only be justly required to produce as
much, and to give a smaller amount of time and exertion, proportioned to
his superior efficiency. Who shall decide between these appeals to
conflicting principles of justice? Justice has in this case two sides to
it, which it is impossible to bring into harmony, and the two disputants
have chosen opposite sides; the one looks to what it is just that the
individual should receive, the other to what it is just that the
community should give. Each, from his own point of view, is
unanswerable; and any choice between them, on grounds of justice, must
be perfectly arbitrary. Social utility alone can decide the preference.
How many, again, and how irreconcileable, are the standards of justice
to which reference is made in discussing the repartition of taxation.
One opinion is, that payment to the State should be in numerical
proportion to pecuniary means. Others think that justice dictates what
they term graduated taxation; taking a higher percentage from those who
have more to spare. In point of natural justice a strong case might be
made for disregarding means altogether, and taking the same absolute sum
(whenever it could be got) from every one: as the subscribers to a mess,
or to a club, all pay the same sum for the same privileges, whether they
can all equally afford it or not. Since the protection (it might be
said) of law and government is afforded to, and is equally required by,
all, there is no injustice in making all buy it at the same price. It is
reckoned justice, not injustice, that a dealer should charge to all
customers the same price for the same article, not a price varying
according to their means of payment. This doctrine, as applied to
taxation, finds no advocates, because it conflicts strongly with men's
feelings of humanity and perceptions of social expediency; but the
principle of justice which it invokes is as true and as binding as those
which can be appealed to against it. Accordingly, it exerts a tacit
influence on the line of defence employed for other modes of assessing
taxation. People feel obliged to argue that the State does more for the
rich than for the poor, as a justification for its taking more from
them: though this is in reality not true, for the rich would be far
better able to protect themselves, in the absence of law or government,
than the poor, and indeed would probably be successful in converting the
poor into their slaves. Others, again, so far defer to the same
conception of justice, as to maintain that all should pay an equal
capitation tax for the protection of their persons (these being of equal
value to all), and an unequal tax for the protection of their property,
which is unequal. To this others reply, that the all of one man is as
valuable to him as the all of another. From these confusions there is no
other mode of extrication than the utilitarian.
* * * * *
Is, then, the difference between the Just and the Expedient a merely
imaginary distinction? Have mankind been under a delusion in thinking
that justice is a more sacred thing than policy, and that the latter
ought only to be listened to after the former has been satisfied? By no
means. The exposition we have given of the nature and origin of the
sentiment, recognises a real distinction; and no one of those who
profess the most sublime contempt for the consequences of actions as an
element in their morality, attaches more importance to the distinction
than I do. While I dispute the pretensions of any theory which sets up
an imaginary standard of justice not grounded on utility, I account the
justice which is grounded on utility to be the chief part, and
incomparably the most sacred and binding part, of all morality. Justice
is a name for certain classes of moral rules, which concern the
essentials of human well-being more nearly, and are therefore of more
absolute obligation, than any other rules for the guidance of life; and
the notion which we have found to be of the essence of the idea of
justice, that of a right residing in an individual, implies and
testifies to this more binding obligation.
The moral rules which forbid mankind to hurt one another (in which we
must never forget to include wrongful interference with each other's
freedom) are more vital to human well-being than any maxims, however
important, which only point out the best mode of managing some
department of human affairs. They have also the peculiarity, that they
are the main element in determining the whole of the social feelings of
mankind. It is their observance which alone preserves peace among human
beings: if obedience to them were not the rule, and disobedience the
exception, every one would see in every one else a probable enemy,
against whom he must be perpetually guarding himself. What is hardly
less important, these are the precepts which mankind have the strongest
and the most direct inducements for impressing upon one another. By
merely giving to each other prudential instruction or exhortation, they
may gain, or think they gain, nothing: in inculcating on each other the
duty of positive beneficence they have an unmistakeable interest, but
far less in degree: a person may possibly not need the benefits of
others; but he always needs that they should not do him hurt. Thus the
moralities which protect every individual from being harmed by others,
either directly or by being hindered in his freedom of pursuing his own
good, are at once those which he himself has most at heart, and those
which he has the strongest interest in publishing and enforcing by word
and deed. It is by a person's observance of these, that his fitness to
exist as one of the fellowship of human beings, is tested and decided;
for on that depends his being a nuisance or not to those with whom he is
in contact. Now it is these moralities primarily, which compose the
obligations of justice. The most marked cases of injustice, and those
which give the tone to the feeling of repugnance which characterizes the
sentiment, are acts of wrongful aggression, or wrongful exercise of
power over some one; the next are those which consist in wrongfully
withholding from him something which is his due; in both cases,
inflicting on him a positive hurt, either in the form of direct
suffering, or of the privation of some good which he had reasonable
ground, either of a physical or of a social kind, for counting upon.
The same powerful motives which command the observance of these primary
moralities, enjoin the punishment of those who violate them; and as the
impulses of self-defence, of defence of others, and of vengeance, are
all called forth against such persons, retribution, or evil for evil,
becomes closely connected with the sentiment of justice, and is
universally included in the idea. Good for good is also one of the
dictates of justice; and this, though its social utility is evident, and
though it carries with it a natural human feeling, has not at first
sight that obvious connexion with hurt or injury, which, existing in the
most elementary cases of just and unjust, is the source of the
characteristic intensity of the sentiment. But the connexion, though
less obvious, is not less real. He who accepts benefits, and denies a
return of them when needed, inflicts a real hurt, by disappointing one
of the most natural and reasonable of expectations, and one which he
must at least tacitly have encouraged, otherwise the benefits would
seldom have been conferred. The important rank, among human evils and
wrongs, of the disappointment of expectation, is shown in the fact that
it constitutes the principal criminality of two such highly immoral acts
as a breach of friendship and a breach of promise. Few hurts which human
beings can sustain are greater, and none wound more, than when that on
which they habitually and with full assurance relied, fails them in the
hour of need; and few wrongs are greater than this mere withholding of
good; none excite more resentment, either in the person suffering, or in
a sympathizing spectator. The principle, therefore, of giving to each
what they deserve, that is, good for good as well as evil for evil, is
not only included within the idea of Justice as we have defined it, but
is a proper object of that intensity of sentiment, which places the
Just, in human estimation, above the simply Expedient.
Most of the maxims of justice current in the world, and commonly
appealed to in its transactions, are simply instrumental to carrying
into effect the principles of justice which we have now spoken of. That
a person is only responsible for what he has done voluntarily, or could
voluntarily have avoided; that it is unjust to condemn any person
unheard; that the punishment ought to be proportioned to the offence,
and the like, are maxims intended to prevent the just principle of evil
for evil from being perverted to the infliction of evil without that
justification. The greater part of these common maxims have come into
use from the practice of courts of justice, which have been naturally
led to a more complete recognition and elaboration than was likely to
suggest itself to others, of the rules necessary to enable them to
fulfil their double function, of inflicting punishment when due, and of
awarding to each person his right.
That first of judicial virtues, impartiality, is an obligation of
justice, partly for the reason last mentioned; as being a necessary
condition of the fulfilment of the other obligations of justice. But
this is not the only source of the exalted rank, among human
obligations, of those maxims of equality and impartiality, which, both
in popular estimation and in that of the most enlightened, are included
among the precepts of justice. In one point of view, they may be
considered as corollaries from the principles already laid down. If it
is a duty to do to each according to his deserts, returning good for
good as well as repressing evil by evil, it necessarily follows that we
should treat all equally well (when no higher duty forbids) who have
deserved equally well of us, and that society should treat all equally
well who have deserved equally well of it, that is, who have deserved
equally well absolutely. This is the highest abstract standard of social
and distributive justice; towards which all institutions, and the
efforts of all virtuous citizens, should be made in the utmost possible
degree to converge. But this great moral duty rests upon a still deeper
foundation, being a direct emanation from the first principle of morals,
and not a mere logical corollary from secondary or derivative doctrines.
It is involved in the very meaning of Utility, or the
Greatest-Happiness Principle. That principle is a mere form of words
without rational signification, unless one person's happiness, supposed
equal in degree (with the proper allowance made for kind), is counted
for exactly as much as another's. Those conditions being supplied,
Bentham's dictum, 'everybody to count for one, nobody for more than
one,' might be written under the principle of utility as an explanatory
commentary.[D] The equal claim of everybody to happiness in the
estimation of the moralist and the legislator, involves an equal claim
to all the means of happiness, except in so far as the inevitable
conditions of human life, and the general interest, in which that of
every individual is included, set limits to the maxim; and those limits
ought to be strictly construed. As every other maxim of justice, so
this, is by no means applied or held applicable universally; on the
contrary, as I have already remarked, it bends to every person's ideas
of social expediency. But in whatever case it is deemed applicable at
all, it is held to be the dictate of justice. All persons are deemed to
have a _right_ to equality of treatment, except when some recognised
social expediency requires the reverse. And hence all social
inequalities which have ceased to be considered expedient, assume the
character not of simple inexpediency, but of injustice, and appear so
tyrannical, that people are apt to wonder how they ever could have been
tolerated; forgetful that they themselves perhaps tolerate other
inequalities under an equally mistaken notion of expediency, the
correction of which would make that which they approve seem quite as
monstrous as what they have at last learnt to condemn. The entire
history of social improvement has been a series of transitions, by which
one custom or institution after another, from being a supposed primary
necessity of social existence, has passed into the rank of an
universally stigmatized injustice and tyranny. So it has been with the
distinctions of slaves and freemen, nobles and serfs, patricians and
plebeians; and so it will be, and in part already is, with the
aristocracies of colour, race, and sex.
It appears from what has been said, that justice is a name for certain
moral requirements, which, regarded collectively, stand higher in the
scale of social utility, and are therefore of more paramount obligation,
than any others; though particular cases may occur in which some other
social duty is so important, as to overrule any one of the general
maxims of justice. Thus, to save a life, it may not only be allowable,
but a duty, to steal, or take by force, the necessary food or medicine,
or to kidnap, and compel to officiate, the only qualified medical
practitioner. In such cases, as we do not call anything justice which is
not a virtue, we usually say, not that justice must give way to some
other moral principle, but that what is just in ordinary cases is, by
reason of that other principle, not just in the particular case. By this
useful accommodation of language, the character of indefeasibility
attributed to justice is kept up, and we are saved from the necessity of
maintaining that there can be laudable injustice.
The considerations which have now been adduced resolve, I conceive, the
only real difficulty in the utilitarian theory of morals. It has always
been evident that all cases of justice are also cases of expediency: the
difference is in the peculiar sentiment which attaches to the former, as
contradistinguished from the latter. If this characteristic sentiment
has been sufficiently accounted for; if there is no necessity to assume
for it any peculiarity of origin; if it is simply the natural feeling of
resentment, moralized by being made coextensive with the demands of
social good; and if this feeling not only does but ought to exist in all
the classes of cases to which the idea of justice corresponds; that idea
no longer presents itself as a stumbling-block to the utilitarian
ethics. Justice remains the appropriate name for certain social
utilities which are vastly more important, and therefore more absolute
and imperative, than any others are as a class (though not more so than
others may be in particular cases); and which, therefore, ought to be,
as well as naturally are, guarded by a sentiment not only different in
degree, but also in kind; distinguished from the milder feeling which
attaches to the mere idea of promoting human pleasure or convenience, at
once by the more definite nature of its commands, and by the sterner
character of its sanctions.
THE END.
FOOTNOTES:
[Footnote C: See this point enforced and illustrated by Professor Bain,
in an admirable chapter (entitled "The Ethical Emotions, or the Moral
Sense") of the second of the two treatises composing his elaborate and
profound work on the Mind.]
[Footnote D: This implication, in the first principle of the utilitarian
scheme, of perfect impartiality between persons, is regarded by Mr.
Herbert Spencer (in his _Social Statics_) as a disproof of the
pretentions of utility to be a sufficient guide to right; since (he
says) the principle of utility presupposes the anterior principle, that
everybody has an equal right to happiness. It may be more correctly
described as supposing that equal amounts of happiness are equally
desirable, whether felt by the same or by different persons. This,
however, is not a pre-supposition; not a premise needful to support the
principle of utility, but the very principle itself; for what is the
principle of utility, if it be not that 'happiness' and 'desirable' are
synonymous terms? If there is any anterior principle implied, it can be
no other than this, that the truths of arithmetic are applicable to the
valuation of happiness, as of all other measurable quantities.
[Mr. Herbert Spencer, in a private communication on the subject of the
preceding Note, objects to being considered an opponent of
Utilitarianism; and states that he regards happiness as the ultimate end
of morality; but deems that end only partially attainable by empirical
generalizations from the observed results of conduct, and completely
attainable only by deducing, from the laws of life and the conditions of
existence, what kinds of action necessarily tend to produce happiness,
and what kinds to produce unhappiness. With the exception of the word
"necessarily," I have no dissent to express from this doctrine; and
(omitting that word) I am not aware that any modern advocate of
utilitarianism is of a different opinion. Bentham, certainly, to whom in
the _Social Statics_ Mr. Spencer particularly referred, is, least of all
writers, chargeable with unwillingness to deduce the effect of actions
on happiness from the laws of human nature and the universal conditions
of human life. The common charge against him is of relying too
exclusively upon such deductions, and declining altogether to be bound
by the generalizations from specific experience which Mr. Spencer thinks
that utilitarians generally confine themselves to. My own opinion (and,
as I collect, Mr. Spencer's) is, that in ethics, as in all other
branches of scientific study, the consilience of the results of both
these processes, each corroborating and verifying the other, is
requisite to give to any general proposition the kind and degree of
evidence which constitutes scientific proof.]]