incurred in philosophic quarters a sort of civil contempt, which I am
very desirous of removing, and which will, I trust, be somewhat
diminished on my proceeding to explain how few and elementary are the
rights that I propose for naturalisation. They are but two in number,
and they are these:--(1) Absolute right, except in so far as the same
may have been forfeited by misconduct or modified by consent, to deal in
any way one pleases, not noxious to other people, with one's own self or
person; (2) right equally absolute to dispose similarly of the produce
either of one's own honest industry, or of that of others whose rights
in connection with it have been honestly acquired by oneself. I call
these 'rights,' because there cannot possibly anywhere exist either the
right to prevent their being exercised, or any rights with which they
can clash, and because, therefore, by their freest exercise, no one can
possibly be wronged, while to interfere with their exercise would be to
wrong their possessor. And I call them 'natural,' because they are not
artificially created, and have no need of external ratification. Whoever
thinks proper to deny this--whoever, as all Utilitarians do, contends
that society is entitled to interfere with the rights which I have
called natural, is bound to attempt to show how society became so
entitled; when for the claim he puts forward on society's behalf he will
find it impossible to produce any plausible pretext, without crediting
society with possession of a right belonging to that same 'natural'
class, the existence of which he denies. For, as there can be no rights
without corresponding obligations or duties, if it be really the right
of society to deal at its discretion with the persons or effects of
individuals, it must be incumbent on individuals to permit themselves
and whatever is theirs to be so dealt with. Have, then, individuals
incurred any such obligation? No obligation, be it remembered, can
arise, except through some antecedent act of one or other or both of the
parties concerned. Either a pledge of some sort must have been given or
a benefit of some sort must have been received. Now undoubtedly there
are no limits to the extent to which society and its individual members
might have reciprocally pledged themselves. It might have been
stipulated by their articles of association that society at large should
do its utmost for the welfare of each of its members, and that each of
its members should do his utmost for the welfare of society at large.
But it is certain, either that no such compact ever was made, or that,
if made, it has always been systematically set at nought. Society has
never made much pretence of troubling itself about the welfare of
individuals, except in certain specified particulars; so that, even if
individuals had, on condition of being treated with reciprocal
solicitude, accepted the obligation of attending to the welfare of
society in other than the same particulars, that conditional obligation
would from the commencement have been null and void. The one thing which
society invariably pledges itself to do is to protect person and
property, and by implication to enforce performance of contracts; and
the two things which individual associates in turn pledge themselves to
do are to abstain from molesting each other's persons and property, and
to assist society in protecting both. In so abstaining and so assisting
consist all those 'many acts and the still greater number of
forbearances, the perpetual practice of which by all is,' as Mr. Mill
says, 'universally deemed to be so necessary to the general well-being,
that people must be held to it compulsorily, either by law or by social
pressure.'[7] Under one or other of these two heads may be ranged
everything that individuals owe to society in return for the mere
protection which they receive from it.
True, there is an universal understanding that individuals shall be
subject to any laws, whether wise or foolish, provided only they be of
equal and impartial operation, which may be enacted by a numerical
majority of the community to which the individuals belong; and in this
manner individuals may become bound by any number of miscellaneous
pledges, society acquiring simultaneously the right to hold individuals
to the performance of those pledges. Thus, if by the vote of an
unimpeachably representative House of Commons it were declared to be for
the general good, and agreed to accordingly, that every one should be
vaccinated or circumcised, it would be incumbent on every one to submit
quietly to vaccination or circumcision, however deleterious the
operation might be deemed by some. Or if, improving upon a hypothetical
suggestion of Mr. Mill, a parliament elected by constituencies in which
the labouring-class element greatly predominated, should prospectively
forbid the accumulation by any individual of property beyond a specified
amount, then, though the almost certain consequence would be that the
prescribed limit of accumulation would not be exceeded, still if it were
exceeded, the accumulator could not justly complain when the surplus was
forfeited according to law. Yet even thus the obligations or duties
created will correspond exactly with the pledges given; none will be
incurred except such as have been imposed by special legislation--nor
even those, unless the legislation have been impartial. A law requiring
people to pay poor's-rates would not suffice as a pretext for requiring
them to pay education rates likewise. Neither if, instead of passing the
prospective law just now supposed, a governing majority which had
previously always permitted the indefinite accumulation of wealth, were
retrospectively to decree the forfeiture of all past accumulations
beyond a defined amount, would individuals be morally bound to submit to
such a decree if they could contrive to evade it, any more than
sexquipedalians would be bound to lay their heads on the block in
obedience to a law directing everybody six feet high to be decapitated.
All such partial legislation would be tyrannical, and circumstances must
be very peculiar indeed to make submission to tyranny a duty. But of all
conceivable legislation, none could possibly be more partial, or
therefore more tyrannical, than such as should give to society a general
power of dealing at its pleasure with its associates, and of arbitrarily
subjecting separate classes or individuals to exceptional treatment.
Even, therefore, if a law to such monstrous effect were enacted, it
could have no morally binding force. It would be no one's duty to
acquiesce in it.
I will not here stop to dispute, though I am not sure that I could
without some slight reservation admit, that the receipt of unasked-for
benefits places the recipient under precisely the same obligation to
benefit his benefactor, as if the good received by him had been
conferred on express condition of his availing himself of the first
opportunity to render equal good. I will not stop to dispute, for
instance, that a person saved from drowning at the risk of his own
rescuer's life, would be bound, on occasion arising, to risk his own
life in order to save his former rescuer's. For my immediate purpose, it
may suffice to remark that society has never been in the habit of
showing such parental solicitude for its component members as would
warrant its claiming filial devotion from them. In the matter of
philanthropy its practice has never been in advance of its very moderate
professions. It has invariably contented itself with rendering certain
specific services, never failing to exact in return fully equivalent
services of each species.
In candour, however, there must be admitted to be innumerable blessings
not yet adverted to, including indeed most of those by the possession of
which man is distinguished from brutes, for which he is in so far
indebted to society that, but for the instrumentality of society, they
would never have been his. Unless individuals had formed themselves into
communities, civilization could have made no sensible progress: there
could have been no considerable advances, material, intellectual, moral,
or aesthetic. Not only should we have been destitute of all the comforts
and luxuries that now surround us, we should have lacked also whatever
cerebral development we have attained, together with all its
concomitants and consequences; whatever of intelligence, or moral
perceptiveness, or artistic taste we have to boast of. Still, though
none of these faculties could have made much approach to maturity except
under the shelter of society, they are not gifts of society. Without the
help of a plough, land cannot be ploughed; but we do not therefore
credit the ploughmaker with the achievements of the ploughman. Neither
is society to take to itself praise because its members have made good
use of the protection which, in consideration of stipulated services on
their part, it has afforded them. Besides, whatever we inherit from
society, we inherit from a society of members no longer in being. Let
the dead come to life again, and it may then become us to examine their
claims upon our gratitude, but we need not meanwhile confound past and
present generations, nor our forefathers with our contemporaries. To the
mass of these latter, at any rate, we are none of us indebted for our
brains or our aptitudes of thought and feeling, and the circumstance of
our being joint sharers with them in patrimony bequeathed by a common
ancestry, affords no very obvious reason why our share of the
inheritance, together with whatever else we possess, should be at their
absolute disposal.
Thus it appears that in no one of the ways in which alone can
originate the obligations which must always precede or accompany
artificially-created rights, has that particular obligation arisen
without which it is impossible for society to obtain artificially the
right of preventing individuals from doing as they will with their own.
No sufficient pledge has been given by one side, no sufficient benefit
conferred by the other. Individuals never agreed to place their all at
the disposal of society; society never rendered to individuals any
services entitling it to claim such boundless gratitude. One service
which it invariably undertakes is that of protecting person and
property. This is its chief and primary duty, the fulfilment of which is
always the first object of its institution, often the only one it
acknowledges. But clearly it cannot by performance of a duty acquire the
right of doing the exact reverse of that duty. It cannot by protecting
acquire the right of molesting. It cannot by preventing person and
property from being meddled with, acquire in its corporate capacity the
right of itself meddling. Since then this right of meddling, this right
of disposing of what is exclusively some individual's own, otherwise
than the owner wishes, has not been acquired by society artificially, it
must, if it do actually belong to society, have been come by naturally;
and this accordingly is what Utilitarians really, though perhaps
unconsciously, assume, treating moreover this gratuitous assumption of
theirs as a self-evident truth.
For, as Utilitarians themselves cannot fail on reflection to perceive,
they offer no shadow of argument in support of that 'greatest happiness
principle' on which their whole system rests. Commencing with the
undeniable postulate that happiness is the sole object of existence, and
perceiving that individual happiness alone would be a very misleading
object, they proceed to take quietly for granted that the only happiness
at which life ought to aim is social happiness. Now, undoubtedly social
happiness is of more importance than individual happiness--the happiness
of many than that of one or a few; neither can there be any worthier
object of pursuit than the greatest happiness of the greatest number.
All this is seen without being said, but what is by no means so easily
seen is how it can be incumbent on any one to pursue that object to his
own detriment--how it can be imperative on one or on a few to sacrifice
his or their happiness in order to promote that of the many. Plainly
such self-devotion cannot be for their personal advantage, and
Utilitarianism does not even attempt to show how it can have become
their duty. Meritorious, magnanimous, heroic in the highest degree it
would certainly be, but does not that very circumstance prove
conclusively that it cannot be due, inasmuch as there is nothing
meritorious in merely doing one's duty and paying one's debts? But of
that which is not due, how can payment be rightfully insisted upon? What
the few are under no obligation to yield, how can the many be entitled
to extort, or how can the worthiness of the latter's object excuse their
doing that which they have no right to do? Is any object, however
worthy, to be pursued regardless of all collateral considerations? To
these objections Utilitarians have no answer to make. All they can do is
tacitly to take for granted the disputed duty and right. That the less
ought to give way to the greater, and the few to the many, and that the
many may rightfully therefore, if need be, use force to compel the less
or the few to give way--these are treated by them as incontestable
propositions, even as 'doctrines _a priori_, claiming assent by their
own light, evident by simple intuition.' And although thus from their
own inner consciousness evolving the very first principles of their own
philosophy, the premises of their deduction that social happiness is the
proper aim in life, and that conduciveness to such happiness is the test
of morality--'Intuitionists,' strange to say, is the distinctive
appellation which they propose to affix to all those who hesitate to
accept as ethical foundation stones the results of their intuitional
evolution.
Scarcely by a taunt so readily rebuttable will anti-Utilitarians be
excited to speedier apprehension of the nature of the lien which
corporate self-interest is presumed to have upon individual
self-devotion. Not the less tenaciously may they cling to their belief
in the right of every one to do as he will with whatever has come by
fair means into his exclusive and complete possession. Neither, I
venture to think, need less store be set by that right in consequence of
an objection very adroitly taken to it by Mr. Mill, which, on account
both of its inherent ingenuity and of its having been addressed more
immediately to myself, it would be inexcusable in me to leave
unexamined. In Mr. Mill's opinion, the right in question, even if valid,
would be valueless, because it would be neutralised by precisely similar
rights belonging to society. If, he argues, individuals are at liberty
to do as they will with their own, so likewise must society be. But
'existing social arrangements and law itself exist in virtue not only of
the forbearance, but of the active support of the labouring classes' who
in every community constitute a numerical majority. This working-class
majority might then if they pleased withdraw their support from existing
arrangements, thereby depriving person and property of social
protection; and by merely threatening such withdrawal they could compel
individuals to acquiesce in their most extravagant demands. 'They might
bind the rich to take the whole burden of taxation upon themselves. They
might bind them to give employment, at liberal wages, to a number of
labourers in a direct ratio to the amount of their incomes. They might
enforce on them a total abolition of inheritance and bequest.' Mr. Mill
maintains that these things, although exceedingly foolish, might
according to my principles, with perfect equity be done; nay, if I
understand him correctly, that according neither to mine nor to any one
else's principles can any adequate reason be assigned why they should
not be done, except that their practical results would be baneful
instead of beneficial. And taking this view, he is fully warranted in
asking what it can matter that according to my theory 'an employer does
no wrong in making the use he does of his capital, if the same theory
would justify the employed in compelling him by law to make a different
use--if the labourers would in no way infringe the definition of justice
by taking the matter into their own hands and establishing by law any
modification of the rights of property which in their opinion would
increase the remuneration of their labour.'[8]
My reply to this and to the whole argument is the following. So long as
society continues to exist, society cannot divest itself of the primary
function for the discharge of which it was originally constituted.
Society, having come together in the first instance, tacitly pledged to
extend protection to each individual associate, cannot, without breach
of contract, withdraw that protection. It may, indeed, make any
impartial laws it pleases, and attach any penalty it pleases to
violation of any impartial law, but it cannot in equity, whatever it may
in practice, place any of its members outside the law; neither, most
certainly, even if its competence did extend thus far, could it go the
farther length of conferring on any one the right of doing wrong to an
outlaw. It may even be doubted whether, if an outlaw were to injure any
one still belonging to the society, any but the injured person himself
would be warranted in retaliating. The sole reason that I can perceive
why even he would is, that his rights had been infringed, and that
reparation was due to him for any damage sustained by him in
consequence, while, on the other hand, the aggressor had forfeited those
rights of his which might otherwise have forbidden the injured person
from taking the reparation due. But society had had none of its rights
infringed. By society no injury had been sustained. To society,
therefore, no reparation was due; and society, it seems to me, would
have no right to insist on exacting reparation not due to itself from
one whom it had forcibly extruded from its communion, and who,
therefore, was no longer amenable to its jurisdiction. Society might,
indeed, dissolve itself, proclaiming that 'every man for himself, and
God for all,' should thenceforward be the rule. But although it might
thus leave individual rights without other defence than that of the
owner, it could not annihilate individual rights. It might cancel the
right to mutual protection, but it could not, in place of that, create a
right of mutual molestation. One's own person and property would still
be as much one's own as before, and whoever outraged either would not be
the less a wrong doer because society permitted his wrong doing to
remain unpunished. In all ethical investigations it is impossible to
guard too watchfully against the smallest approach to confusion of might
with right.
Instead of being valueless, the particular rights of which Mr. Mill
speaks so disparagingly, appear to me to possess a value which can
scarcely be exaggerated. They are, as may be readily perceived,
identical with the two which I have termed 'natural,' and of which I
began by saying that they are exceedingly elementary, but of which I
have now to add that they are also all-comprehensive, for that there are
no genuine rights whatever, however numerous or complex, which neither
are included within, nor branch out from, them. This will be manifest on
comparison of them with the items enumerated in any other catalogue of
rights; as, for instance, with the one drawn up by Mr. Mill, according
to whom all rights may be classified as follows:--(1) Legal rights; (2)
moral rights; (3) the right of every one to that which he deserves; (4)
the right to fulfilment of engagements; (5) right to impartiality of
treatment; (6) right to equality of treatment.[9] Each of these
varieties will repay a brief examination.
Under the head of 'legal' rights are commonly placed, not those only
which are conferred, but those also which are confirmed, by law. Such as
law has merely confirmed, however, are of course not the creatures of
law. But it is admitted on all hands that a law may be unjust--that is
to say, it may without consent from the parties concerned, infringe some
previously existing right--and as the right so violated cannot have been
created by law, inasmuch as what law had been competent to create, law
would be equally competent to cancel--it is clear that there must be
rights other than those created by law, rights whose origin was
independent of, and anterior to, law. It is apparently to rights of this
description that Mr. Mill applies the name of 'moral' rights. Examples
of them are a man's rights to personal liberty and to property in
whatever belongs to him as having become his by honest means, to both of
which, unless he had forfeited them by misconduct, he would be equally
entitled, whether his title to them were or were not recognised by law.
The only genuine rights which law can create, or consequently can have
to confer, are privileges in respect of person or property other than
one's own. But such legalised privileges are not necessarily rights.
Whether they are so actually or not depends mainly on the character of
the legislative authority. A right to interfere with rights not based
upon law cannot be conferred without the consent of the parties in whom
the independent rights are vested, given either directly by themselves
or indirectly through their representatives. If a legislative body be
truly and thoroughly representative of the community which it controls,
then every one of its enactments, however bad or foolish, is virtually
an engagement to which every member of the community is a party, and any
privilege arising out of it becomes to all intents and purposes a right.
If, on the other hand, the legislative authority be autocratic, or if it
represent only certain favoured sections of the community, then none of
its enactments, however wise and good, of which a majority of the public
disapprove, and which interfere with the rights termed by Mr. Mill
'moral,' are morally binding, except on the legislators themselves and
their immediate constituents. Any one else may quite blamelessly break
the law, and resist any privilege thereby created, though he must, of
course, be prepared, in case of detection, to take the legal
consequences of his disobedience. For example, protective duties,
however impolitic, if imposed because a majority of the nation were of
opinion that a certain branch of domestic industry had better be
fostered by protection, could not be evaded without injustice to those
engaged in the protected industry, though there would be no injustice in
smuggling, if they had been imposed in opposition to the general sense
of the public by a packed Parliament or an absolute monarch. The same
legal monopoly, which in the one case could not be justly evaded, could
not in the other be justly enforced. A legal privilege, in short,
becomes a right only when a majority of those at whose expense it is to
be exercised, have formally consented either directly or indirectly to
its being exercised; and it then becomes a right solely because an
engagement has been entered into, in virtue of which, whatever is
requisite for its satisfaction has become due. Thus it appears that,
whatever legal rights are genuine, and are not at the same time 'moral'
rights also, resolve themselves into specimens of the right to
fulfilment of engagements, and belong not more to the first than to the
fourth of Mr. Mill's categories, to which latter, therefore, we may at
once transfer our attention.
Why is it, then, that every one has a right to fulfilment of
engagements, to have faith kept with him, to have promises observed?
Solely, as it seems to me, because whatever has been promised to any one
becomes eventually his due, and because whatever is due or owing ought
to be paid. A promise is nothing less than a prospective transfer of
property in some thing, or in the advantage derivable from some action,
and when the time appointed for making the transfer arrives, whatever
has been promised, whether actually transferred or not, becomes the
complete property of, and in the fullest sense of the word belongs to
him to whom it has been promised; so that the right to fulfilment of
engagements resolves itself into the moral right of every one to have
that which belongs to him, and we have already seen that every legal
right which cannot on other grounds be shown to be a moral right
resolves itself into a right to fulfilment of an engagement. Whence it
follows that there are no legal rights whatever which are not likewise
moral rights, and which might not therefore be equally rights, even
though they had never been legalised. Whence, and from what has just
been observed with respect to the right to fulfilment of engagements, it
further follows that of the five branches of Mr. Mill's classification,
the first and fourth may without inconvenience be dispensed with, and
that the second will suffice to do duty for itself and for the other
two.
We have next to consider a person's right to that which he deserves,
with reference to which, and to my assertion that there is no necessary
correspondence between the remuneration which a labourer ought to
receive and either his merits or his needs, Mr. Mill inquires as
follows:--'If justice be an affair of intuition, if we are guided to it
by the immediate and spontaneous perceptions of the moral sense, what
doctrines of justice are there on which the human race would more
instantaneously and with one accord put the stamp of its recognition
than these--that it is just that each should have what he deserves, and
that, in the dispensation of good things, those whose wants are the most
urgent should have the preference?' But surely however just it be that
each should have what he deserves, it is so only on condition that he
have it from those from whom it is due, and do not take it from those
from whom it is not due. The latter, surely, at least as much deserve to
be allowed to keep what they have already by honest means got, as others
to get what they have not yet got. But if so, then that these should be
deprived of their deserts, in order that those may get theirs, is surely
about the very last doctrine that ought to be put forward as
self-evident and intuitive. 'But,' Mr. Mill proceeds to ask, 'if there
be in the natural constitution of things something patently unjust,
something contrary to sentiments of justice, which sentiments, being
intuitive, are supposed to have been implanted in us by the same Creator
who made the order of things that they protest against--do not these
sentiments impose upon us the duty of striving by all human means to
repair the injustice? And if, on the contrary, we avail ourselves of it
for our own personal advantage, do we not make ourselves participators
in injustice, allies and auxiliaries of the Evil Principle?'[10] Now, as
I have already said, I am myself no intuitionist, but if I were, I
should not the less feel warranted in here replying that by no theory of
justice, intuitive or other, can the passive spectator of an injustice
to which he is no party be bound to assist in repairing the injustice,
simply because he has the means. A creditor denied payment of his fair
debts does not get what he deserves; but upon whom, except the
defaulting debtor, does it therefore become incumbent to repair the
latter's injustice by paying his debts? And if there be in the general
order of mundane affairs, as--provided I may attribute the existence of
it, as of all other evil, not to God, but to the devil--I don't mind
admitting there may be--something which prevents many of our
fellow-creatures from getting their desserts, something contrary,
therefore, to our sentiments of justice whether those sentiments have
been implanted in us by the Creator or not, I still maintain that those
sentiments do not impose upon us the duty of striving to correct the
injustice. They necessarily stimulate us more or less powerfully,
according to their own intrinsic strength, to undertake that noblest of
all tasks, but they do not render it imperative upon us. Whether, if we
actively avail ourselves of the injustice for our own profit--though
this, by the way, is no more than every one of us does who takes
advantage of competition among labourers to obtain labour for a less
price than he perceives it to be worth--we are not making ourselves
auxiliaries of the Evil Principle, may be matter of opinion; but, at all
events, we do not even then become participators in an injustice which
we did not create, and do not uphold or help to perpetuate, but merely
accommodate ourselves to. At worst, we are but accessories to it after
the fact. In simply accepting the situation and striving to make the
best of it for ourselves, without trying to make it better and only
abstaining from making it worse for others, our conduct may be
contemptible, mean, base, disgusting, or what you will, only not
iniquitous; for whatever, short of their deserts, may, from the cause
supposed, be received by our fellow-creatures, although in one sense
plainly due to them, is as plainly not due from us, and we cannot,
without palpable injustice, as well as palpable abuse of words, be
charged with injustice for merely declining to pay debts that we do not
owe.
The rights to impartial and to equal treatment need not detain us long.
There is no right to impartiality except where impartiality is due, and
it is only in a small minority of cases that impartiality is due. There
is nothing iniquitous in showing favour to the extent of giving one
person more than his due, provided no other person be prevented from
having as much as his due. The lord of the vineyard who gave unto all
his labourers alike, the same to those who had wrought for him but one
hour as to those with whom he had agreed that for a penny they should
bear the burden and heat of the day, did the latter no wrong; his eye
was not the less good because theirs was evil. A judge, or an
arbitrator, or the conductor of a competitive examination, is bound to
make his award without respect of persons, because he cannot favour one
without withholding from some other what that other ought to have. On
every distributor of Government patronage, likewise, it is morally
incumbent to select for the public for whom he is trustee, the best
servants he can find. An English Prime Minister has no right to make his
son a Lord of the Treasury or of the Admiralty, if he know of any one
better fitted for the post and willing to accept it; and if he name any
but the fittest candidate, he fails in his duty to the community on
whose behalf he acts. But a private employer, acting for himself alone,
is under no similar obligation, and may take whom he pleases into his
service, and assign to him whatever position therein he pleases, without
affording any cause for reasonable complaint to those more capable
members of his establishment whom he places under one less capable. In
short, except in those rare cases in which impartiality means rendering
what is due, in which cases it is but another name for justice, there is
nothing unjust in disregarding it.
As for equality, although its 'idea,' as Mr. Mill says, 'often enters as
a component part both into the conception and into the practice of
justice, and in the eyes of many persons constitutes its essence,'[11] I
can think of no single case in which, unless by reason of some special
agreement, it can possibly be due, or in which, consequently, there can
be any right to it. Even that equal protection for whatever is
indisputably one's own, the claim of all to which is commonly admitted
almost as a matter of course, is really due from those only by whom the
obligation to afford it has been tacitly or formally accepted. On this
ground it is due from the public at large, and from those individuals to
whom the public has delegated certain of its tutelary functions, but
from no other individuals whatever. No one else is bound to take, for
the protection of all other people, whatever pains or trouble he takes
for his own security--to watch, for instance, as vigilantly that his
neighbour's house as that his own is not broken into. And while the one
solitary claim of any plausibility to universal equality of treatment
requires to be largely qualified before it can be conceded, there is no
other claim of the kind which does not carry with it its own refutation;
there is no other which does not partake of the absurdity patent in the
communistic notion that all the members of a society are entitled to
share equally in the aggregate produce of the society's labour. How is
it possible that an equal share can be everybody's due, if different
persons may have different deserts, and everyone's deserts be likewise
his due?
We have now gone completely through the list of artificially created
rights, without finding one that does not derive all its validity from
connection with some pre-existing right. We have seen that among
so-called rights none whatever are genuine by reason merely of any
extrinsic sanction they may have received, but that all real rights
either are such intrinsically, or are based upon, or embody within them,
some right purely intrinsic. We have seen that there are two rights
endued with this intrinsic character--viz., that of absolute control
over one's own self or person, and that of similar control over whatever
else has by honest means come into one's exclusive possession, or become
due or owing to him exclusively; and, because these rights, wherever the
conditions necessary for their exercise occur, of necessity exist,
springing up at once and full grown, in the necessary absence of any
antagonistic rights that could prevent their existing, I have not
scrupled to call them 'natural;' nor do I think that further apology can
be needed for such application of the epithet. To maintain, moreover,
that these natural rights constitute the essence of all artificial
rights, was simply equivalent to saying that no so-called right can be
genuine unless requiring for its satisfaction no more than already
actually belongs or is due to its claimant; while every right which does
require no more must be genuine, because there can nowhere exist the
right to withdraw or to withhold from any one anything that is
exclusively his. These seeming truisms are indeed diametrically opposed
to a theory which enters on its list of friends names no less
illustrious than those of Plato, Sir Thomas More, Bentham, and Mill.
Still, whoever, undeterred by so formidable an array of adverse
authorities, is prepared to accept the description of rights of which
they form part, will have no difficulty in framing a theory of justice
perfectly conformable thereunto.
The justice of an action consists in its being one, abstinence from
which is due to nobody. The justice of inaction--for just or unjust
behaviour may be either active or passive--consists in there being
nobody to whom action, the reverse of the inaction, is due. 'Justice,
like many other moral attributes, may be best defined by its opposite,'
and all examples of injustice have this one point in common, that they
withhold or withdraw from some person something belonging or due to him,
or in some other way infringe his rights, and consequently wrong him.
Conversely, a point common to and characteristic of all just acts and
omissions, is that they neither prevent anybody from having that which
is due to him, nor in any other way infringe any one's rights, and that
they consequently do no one any wrong. It is not essential to the
justice of conduct that anything due be thereby rendered. It suffices
that nothing due be withheld. All conduct is just by which nobody is
wronged.
It is further to be noted that all just conduct is of one of three
kinds--that which justice peremptorily exacts; that which she merely
permits, and may even be said barely to tolerate; and that which she
approves of and applauds, without, however, presuming to enjoin it.
Conduct of this last sort is just in that it leaves nothing undone which
justice requires, but it is also more than just in that it does more
than justice requires. To speak of it as simply just, is therefore
somewhat disparaging. It is just in the sense in which the less is
comprehended by the greater. He who faithfully fulfils an engagement
that has provided for his making a reasonable return for whatever
advantage he might obtain under it, shows himself simply just in the
matter, and nothing either more or less. He who, having driven a hard
bargain, insists rigorously upon it, giving nothing less, and taking
nothing more than had been mutually stipulated, is likewise strictly
just, but is also shabby, and deserves to be told so plainly. He who,
besides making full return, according to contract, for value received,
does something more, at some inconvenience to himself, out of regard for
another's need, is not a whit more just than either of the other two,
but he is generous into the bargain, and deserves thanks in proportion.
Rising out of these considerations are two others equally meriting
attention.
In the first place, we may see additional cause for distrusting the
testimony which etymology has been supposed to record in favour of 'an
origin of justice connected with the ordinances of law.'[12] That
'_justum_ is a form of _jussum_, that which has been ordered:' that
'[Greek: dikaion] comes directly from [Greek: dike], a suit of law:'
that '_recht_, from which came right and righteous, is synonymous with
law,' is obvious enough; and it may not be out of place to add that in
French the word _droit_ has, with almost savage irony, been selected as
the technical name, not of law simply, but of legal procedure with all
its crookedness.[13] Still it seems more in the ordinary course of
things to explain this linguistic identification of law with justice, by
supposing conformity to justice to have been the primitive element in
the formation of the notion of law, than by supposing 'conformity to law
to have been the primitive element in the formation of the notion of
justice.' It seems more probable that certain things were commanded
because they were deemed just, than that they were deemed just because
they were commanded. Even the ancient Hebrews, who 'believed their laws
to be a direct emanation from the Supreme Being,' although, if asked why
it was wrong to kill or steal, they might very likely have replied,
'Because theft and murder have been forbidden by God,' would still have
acknowledged that it would be wrong to kill or steal, even if there had
been no divine prohibition of the practices. And when we recollect that
among 'other nations, and in particular the Greeks and Romans, who,
knowing that their laws had been made by men, were not afraid to admit
that men might make bad laws, ... the sentiment of justice came to be
attached, not to all violations of law, but only to violations of such
laws as ought to exist,' what had previously appeared probable is
converted into certainty. Principles of justice to which law ought to
conform cannot but have been anterior to law, and cannot have originated
in law. And certainty on this point grows still more certain, assurance
becomes doubly sure, when we reflect that, as was pointed out above,
many things are just which, not only does not law command, but which
justice barely tolerates, permitting them, indeed, to be done, but
permitting them also to be reprobated.
Secondly, we may perceive that in mere justice there can be nothing
praiseworthy. Justice is nothing more than abstinence from injustice,
and no commendation can be due for not doing that the doing of which
would deserve censure. Justice, if entitled to be ranked among the
virtues at all, is at best only a negative virtue, as being the reverse
of a vice. It is distinguished from all other moral qualities, as being
the single and solitary one, compliance with whose behests is a duty
which we owe to others. Of meekness, patience, temperance, fortitude,
courtesy, whatever display it may for any reason be our duty to make,
precisely that display justice requires us to make. Whatever of any one
of these qualities justice does not exact from us, we may, without
wronging any one, omit. We must not, indeed, incapacitate ourselves by
tippling for our proper work, nor offend the eyes or ears of decenter
folk by reeling obstreperously through the streets; but, if we take the
precaution of retiring during an interval of leisure to our privy
chamber, our making beasts of ourselves then and there to our heart's
content, is our own concern, and nobody else's. No doubt, in doing this
we should be doing very wrong, but still there is no contradiction in
saying that we should have perfect right to do it, inasmuch as we should
thereby be wronging no one but ourselves. Of another class of
virtues--of all those which admit of being directly contrasted with
justice, and which may for shortness' sake be without much inaccuracy
comprehended under the general designation of generosity--it may, with
literal truth, be said that the practice of them is no part of our duty
to our neighbour. Provided we are careful to let every one have what,
between him and us, are his bare dues, we may be selfish, mean, sordid
to excess, without infringing any one else's rights, without the
smallest dereliction of our duty to others. True, ethical writers are in
the habit of speaking of 'duties of perfect and imperfect obligation,'
but of these 'ill-chosen expressions,' as Mr. Mill,[14] with abundant
reason, styles them, the latter, more particularly, is of a slovenliness
which ought to have prevented its being used by any 'philosophic
jurists.' What some of these mean by it is stated to be 'duties 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
defined person, or at any prescribed time.' But, according to this
explanation, there are duties of which performance may not only be
indefinitely postponed, even until a morrow that may never come, but of
which performance at one time will warrant non-performance of them
subsequently; so that, for instance, he who has behaved charitably on
past occasions, may be uncharitable afterwards. 'In the more precise
language' of other writers, we are told that while '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 which do not give birth to any right.' But, as where there is no
right nothing can be due, it would seem from this that by duties of
imperfect obligation are to be understood duties performance of which is
not due. I hope to be pardoned for declining to accept these illusive
distinctions as the boundaries which separate justice from the other
components of morality. I neither understand how any obligation can be
otherwise than perfect, nor do I recognise any duties whatever except
those of justice. The main distinction between justice and all positive
virtues I take to be that, whereas compliance with its behests is always
imperative, compliance with theirs never is, but is always optional and
discretionary. Of whatsoever is, for whatsoever reason, due, it is
invariably justice, and justice alone, that demands payment or
performance. Justice claims, and claims peremptorily, whatever is owing,
but never puts forward the smallest pretension to anything that is not
owing. But since whatever is _owing_ plainly _ought_ to be paid, and
since justice never claims anything but what is owing, it is clear that
there cannot be any merit in satisfying the claims of justice. Merit is
possible only in actions which justice does not enjoin, but to which
some other virtue exhorts.
From the main difference here pointed out, a minor collateral difference
ramifies. Of whatever ought to be paid or done, payment or performance
may be righteously enforced. Here I have the satisfaction of proceeding
for a few steps side by side with Mr. Mill, although only, I am sorry to
say, to part company again immediately. 'It is a part,' he says, '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 it may be exacted from him,
we do not call it his duty.'[15] Now, since justice never asks for
anything but what is due, never makes a requisition compliance with
which is not a duty, it follows that all those persons to whom its
requisitions are addressed may be rightfully compelled to comply with
them, whereas, since what every other virtue requires is always
something not due, compliance with its requisitions is never a duty, and
cannot, except unrighteously, be enforced. This--viz., the rightfulness
of using compulsion in aid of justice, as contrasted with the
wrongfulness of resorting to it in aid of generosity, rather than the
rightfulness of punishing breaches of the one and not of the other,
seems to me the 'real turning-point of the distinction' between the two.
For gross disregard of generosity, and indeed of any other virtue, may
rightfully be punished, justice fully sanctioning the punishment
although indicating also the nature of the penalty to be inflicted in
each case, and restricting it within certain limits. Whoever plays the
dog in the manger in a manger of his own, or makes an exclusively
selfish use of his wealth or other advantages, refusing to do good to
his neighbour at however little sacrifice on his own part it might be
done, is not thereby infringing anybody else's rights, or thereby
wronging any one else. He is only exercising his own undoubted rights.
Still he is exercising them in a manner deserving of severe reprobation,
and which witnesses of his conduct may justly punish by testifying to
him the scorn, disgust, or indignation he has excited. It is no more
than just that he should have his deserts and receive the punishment
which has become his due. But justice, although permitting him to be
punished for acting ungenerously, does not sanction his being compelled
to make a show of acting generously. If his conduct had been unjust
instead of simply ungenerous, no punishment would be adequate that did
not force him to repair the evil he had done, or to do the good he had
left undone. But the most flagrant breach of generosity, neither keeping
nor taking away anything to which any one has a right, does nothing for
which reparation can be due. It consists simply in a man's making an
exclusively selfish use of what is exclusively his, and to make such use
is one of the rights of property. Whoever exercises that odious right is
justly punished by being shown how hateful we think him, but we must
not, on pretence of justice, commit the injustice of depriving him of a
right which is confessedly his.
It is not, then, by being rightfully liable to punishment that unjust
differs from ungenerous conduct. The latter also ofttimes deserves and
incurs punishment. But since there can be no merit in doing that the not
doing of which would merit punishment, it may seem that, as in justice
so likewise in generosity there cannot be anything positively
meritorious. Neither in truth would there be if conduct were entitled to
be styled generous simply as being the reverse of ungenerous. Generosity
would then, like justice, be a virtue in no higher sense than that of
not being a vice--a negative virtue if a virtue at all. But an action
does not really deserve to be called generous unless what justice
requires be exceeded by it in a degree more than sufficient to prevent
the agent from deserving the imputation of meanness, nor even then
unless the excess have been done from a purer motive than that of the
hope of praise or other reward. An action is generous only in the
proportion in which it involves self-sacrifice, voluntarily undergone
for the benefit of others, without any view on the agent's part to
further compensation than that derivable from the consciousness of
making other people happy. In such voluntary and disinterested
self-sacrifice consists the merit which is one chief characteristic of
generosity as of most positive virtue, distinguishing it from justice,
in which there is never a surrender of anything which one would be
warranted in keeping, but merely a rendering of what belongs or is due
to others. All conduct, not immoral, admits, as already more than once
intimated, of a tripartite division, into that which may be rightfully
enforced; that of which, though it be not due nor rightfully enforcible,
neglect deserves to be and may justly be punished by reproaches; that
which is neither due nor reasonably to be looked for, but which involves
a voluntary surrender for the good of others of some good which one
might without reproach keep for oneself. Of this last description is the
only conduct in which there is any proper or positive virtue.
So much and such complex argumentation may not impossibly be deemed a
good deal in excess of what is requisite to establish the conclusion to
which it points, and which may be summed up in the following very simple
propositions:--That, by a person's rights being understood the privilege
of having or doing whatever no other person has a right to prevent his
having or doing, justice consists of abstinence from conduct that would
interfere with that privilege; that justice, therefore, is not dependent
on extrinsic sanction, but arises spontaneously from the nature of
things, and may almost indeed be said to spring necessarily from the
meaning of words; and that its sole merit is exemption from the demerit
that would attach to the withholding or withdrawing from any person
anything belonging or due to that person. With all possible confidence,
however, in the innate vigour of these propositions, I cannot suppose
that they do not require all possible adventitious strengthening to be
qualified to displace the doctrine to which they are opposed. I proceed,
therefore, to test somewhat further the adequacy of the description of
justice which they involve by confronting it with certain intricate
problems, in presence of which the rival utilitarian definition will be
found to be hopelessly at fault.
There are few subjects on which casuists have differed more widely than
those of the legitimacy, and the proper measure of punishment. One
thinks it unjust that anybody should be punished for the sake of example
to others, or for any purpose except his own amelioration. A second
replies that it is only for the sake of other people's good that an
offender ought to be punished; for that, as for his own good, he himself
should be left to decide what that is, and he is pretty sure not to
decide that it is punishment. A third pronounces all punishment unjust,
seeing that a man does not make himself criminal, but is made so by
circumstances beyond his control--by his birth, parentage, education,
and the temptations he meets with. Then, for the apportionment of
punishment, some persons think there is no principle like that of the
_lex talionis_--an eye for an eye, and a tooth for a tooth. Others that
the penalty should be accurately proportioned to the immorality of the
offence, by whatever standard that immorality be measured. Others,
again, that punishment should be limited to the minimum necessary to
deter from crime, quite irrespectively of the heinousness of the
particular crime punished. Of the first three of these opinions, Mr.
Mill observes that 'they are all extremely plausible, and that so long
as the question is argued as one of justice simply, without going down
to the principles that lie under justice, and are the source of its
authority, he is unable to see how any one of the reasoners can be
refuted. For every one of them builds upon rules of justice confessedly
true--each is triumphant so long as he is not obliged to take into
consideration any other maxims of justice than those he has selected,
but that as soon as their several maxims are brought face to face, each
disputant seems to have as much to say for himself as the others. No one
can carry out his own notion of justice without trampling upon another
equally binding.'[16] This view of the matter, however, can scarcely be
regarded as satisfactory. If utilitarian notions of justice cannot be
carried out without trampling each other down, they plainly should not
be suffered to go at large, but should be relegated forthwith to the
limbo of oblivion. But right cannot really be opposed to right; justice
cannot really be inconsistent with itself: it never can be unjust to do
what is just. Anti-utilitarian justice tolerates no such intestine
disorder. The sole ground on which she sanctions punishment is the
indispensableness of punishment for the reparation of injury. Whoever
has suffered wrong has been subjected to invasion of some right,
personal or proprietary, and is entitled to amends for the outrage;
while the aggressor from whom the amends are due, ought to render them
because he owes them, and because he ought, may, if necessary, be
compelled, to render them. By the breach of right which he has
committed, he has forfeited his own corresponding right, which may now
be equitably set aside to whatever extent may be requisite for
reparation of the evil he has done, one essential part of such
reparation being adequate security against repetition of the wrong. So
far as may be necessary for this purpose, punishment may equitably go,
but no further. Genuine justice does not permit penal laws of human
enactment to take into account the abstract turpitude of crime. That she
reserves for divine cognisance, recollecting that 'Vengeance is mine, I
will repay,' saith the Lord. Nor does she permit the smallest
aggravation of punishment for the sake either of the offender's own
mental improvement, or to discourage others from evil doing; neither, on
the other hand, does she recognise any claim to abatement on the plea of
an offender not having been able to help acting as he did. She would
not, indeed, punish with death or with stripes an outrage committed by a
lunatic or an idiot, partly because an outrage may be really less
offensive for being committed unwittingly, inasmuch as it does not, at
any rate, add insult to injury, and also because the corporal
chastisement of a lunatic or an idiot could afford no reparation to the
wounded feelings of a healthy mind. But so far as even an idiot or a
lunatic was capable of making good the evil he had done by rendering
what had in consequence become due, Anti-utilitarianism would require
him equally with an erring saint or sage to make it, and equally, too,
would subject him to whatever restraint might be deemed not more than
sufficient to prevent his doing the same evil again. And of course she
does not treat an offender of ordinary intelligence with indulgence
which she would not show even to a lunatic, but exacts inexorably full
reparation for what he has done, requiring him commonly to pay in kind
so far as he can, and to make up with his person for any deficiency.
Within the limits thus marked out she is well content that, with the one
object which alone justifies punishment, other secondary objects with
which justice has no concern, should be combined. She is well content
that the same penal measures as are called for in order to compensate
the injured party, should also subserve the reform of the criminal, and
serve as general deterrents from crime. But she protests against the
notion that these, or any other objects, can ever excuse the
infringement of any ordinance of justice, or of any of even a criminal's
rights which the criminal has not forfeited by crime. Justice, in short,
in her penal, as in all her other arrangements, has but to adhere
closely to the anti-utilitarian principles of rendering what is due, and
of taking nothing that is not due, in order to steer clear of all the
difficulties by which the ablest and most accomplished Utilitarians
confess themselves staggered.
A second greatly vexed question is, 'whether, in a co-operative
industrial association, it is just or not that talent or skill should
give a title to superior remuneration? On the one side it is argued that
all who do the best they can deserve equally well; ... that superior
abilities have already advantages more than enough in the admiration
they excite, the personal influence they command, and the internal
satisfaction attending them; 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, that society,
receiving more from the more efficient labourer, owes him a larger
return; that a larger share of the joint result being actually his work,
not to allow his claim to it is a sort of robbery; that if he is only
to receive as much as others he can only be required to produce as
much.'[17] 'Between these appeals to conflicting principles of justice,'
Mr. Mill considers it impossible to decide. 'Justice,' he says, '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.'[18] The form of justice depicted with this Janus-like
aspect can scarcely be the utilitarian, since, whoever, on utilitarian
grounds, selects one of its sides, must perforce, on the same grounds,
reject the other. Still, it is spoken of as genuine justice, wherefore
that there is a justice independent of utility, would seem, after all,
to be admitted by Utilitarians themselves. It is for them, however, to
deal with the dilemma which their own ingenuity has thus devised. My
only concern with the two-headed monster they have imagined is to
protest against its being mistaken for the one sole species of justice
which Anti-utilitarianism recognises, and which never presents any such
double-faced appearance. In the case before us anti-utilitarian justice
would decide with her accustomed ease between the two appellants. What
she would look to would simply be that each co-operator should have his
due. But how much soever she might declare an inferior workman to
deserve for doing his best, she certainly would not allow his deserts to
extend to participation in the fruits of the toil of those of his
fellows who had done better than he. His having produced as much as he
was able could not render due to him a share in the larger produce of
others of superior capacity. Very possibly the superior workmen might
agree that all should participate equally in the aggregate results of
their joint labour. If so, well and good. For so liberal a concession
they would deserve credit, and thanks would be due to them from those in
whose favour it was made; but this of itself would be a conclusive
proof, if any were wanting, that the concession was an act, not of
justice, but of generosity, not of debt, but of grace.
Again, what discordance is there not as to the most equitable
repartition of taxation! That all should be taxed in equal proportion to
their pecuniary means; that taxation should be a graduated percentage on
income, rising as income rose; that all, whether rich or poor, should be
taxed alike; that all should pay equal capitation, but unequal
property-tax--these are some out of many divergencies of opinion, and
'from these confusions' there is, Mr. Mill considers, 'no other mode of
extrication than the utilitarian.'[19] But if there were really no
other, there would, in fact, be none at all. For opinions differ
scarcely less as to the utility, than as to the justice of each
specified mode of taxation. There are quite as many persons who think it
expedient as who think it equitable that people should be taxed either
equally, or according to any of the suggested schemes of inequality. All
the help that Utilitarianism here affords is, as usual, to leave every
one to judge for himself which plan is the most advisable, and then to
pronounce that to be the only moral plan. Anti-utilitarianism offers
guidance of a very different sort. It wastes no time in seeking for an
escape from confusion, for it allows no confusion to exist. It spurns
equally the idea of different persons being required to pay different
prices for equal quantities of the same thing, merely because some of
them can afford to pay more, and that of their being all required to pay
the same price for different quantities, merely because all are equally
in need of the quantities they respectively obtain. It recognises only
an imperfect analogy between a club or a mess to which no one need
subscribe unless he likes, and a national community to whose funds every
resident within its territory has no choice but to contribute; and while
quite content that members of the one should be assessed at any rates to
which they have spontaneously consented, it protests against the
imposition on members of the other of burdens disproportioned to their
several abilities. It denies that the shilling of a man who has but one
in the world is of the same value to him because it is his all, as is to
another an estate bringing him in 100,000_l._ a year, seeing that, if
the former had his pocket picked, he might presently beg, borrow, or
earn a second coin, whereas if the latter were dispossessed of his
estate he might live to the age of Methusaleh without acquiring its
equivalent. It perceives that a rich man, by receiving public protection
for his property as well as his person, is relieved from an expense in
maintaining private watchmen, which a poor man, with nothing but his
carcass to defend, would have as little occasion as ability to incur;
and it concludes that more being thus in effect given to the rich, more
is due from him in return, and more, consequently, may be rightfully
exacted.
We come, now, to a case that may well give to both Utilitarians and
Anti-utilitarians pause--with this difference, however, that whereas it
brings the former to an everlasting standstill, the latter may, after a
while, go on complacently meditative, at least, if not rejoicing.
There are certain situations in which justice loses its authority.
'Thus, to save a life, it may be allowable ... to steal or take by force
the necessary food or medicine, or kidnap and compel to officiate the
only qualified medical practitioner.'[20] Wherefore, since to steal or
to kidnap is essentially wrong, it may sometimes be allowable to do
wrong. Mr. Mill's explanation of the paradox is, that 'there are
particular cases in which some other social duty is so important as to
overrule any one of the general maxims of justice; but that in such
cases 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.'[21] I submit,
however, that there is no real occasion to resort to any such 'useful
accommodation of language,' in order to be 'saved from the necessity of
admitting that there may be laudable injustice.' Let us never shrink
from looking error in the face, for fear that, after she has slunk away
abashed, some insoluble mystery may remain behind. It is better, at any
rate, to be puzzled than deceived. There can be no doubt about theft
being essentially unjust, and no skill in the arrangement of words can
convert injustice into justice, or prevent injustice from being wrong.
But when, as occasionally happens, the only choice open to us is between
two immoral courses, it is morally incumbent on us to select the less
immoral of the two. The wrong we decide upon does not, however, itself
become smaller because it prevents a larger. A sworn bravo, who had
taken in advance the wages of assassination, would sin less by breaking
than by keeping faith with his employer; but, in either case, would sin.
Abstinence from murder would not absolve him from the guilt of perjury.
If, unless a loaf were stolen, a life would be lost, Anti-utilitarianism
might pardon, but would scarcely applaud the theft. At all events it
would not, like the rival doctrine in a similar strait, be reduced to
double on itself, declaring that wrong had become right and black white,
that the Ethiopian had changed his skin and the leopard his spots. It
would still insist as positively as ever that to steal another man's
bread cannot be just, however benevolent the purpose for which it is
stolen.
One more illustration and I have done. Whoever believes as I do in the
indefeasible sanctity of honestly acquired _moveable_ property, is
logically bound to hold equally sacred the rights of bequest and
inheritance. With whatever is exclusively your own, you may surely do
anything you please except harm; nor need even harm be excepted if it be
done to yourself alone. If, indeed, you go the length of playing ducks
and drakes with gold pieces, or of lighting cigars with bank-notes, you
are likely enough to be stopped and placed under restraint as a lunatic,
but it is clear that this will be done solely because you are presumed
not to understand what you are doing, and not from any question as to
your right to do it if you do understand, for there are plenty of things
far more objectionable in themselves, only not implying a want of
sanity, which you will be left perfectly at liberty to do. If you
choose, in imitation of Cleopatra, to spoil your fish-sauce by mixing
powdered pearls with it, or, in imitation of a certain Peruvian
viceroy, to shoe your carriage horses with silver, no one will dream of
interfering with you; any more than of preventing courtesans and other
fine ladies from befouling their nether limbs by sweeping the dusty road
with flounces of Brussels lace; or of preventing members of the Cobden
Club from gorging themselves annually, at a cost of five guineas per
paunch, in honour of the prince of practical economists. But property,
which, however great the good it is capable of doing, you are at liberty
to employ solely for your own hurt, you are, of course, at liberty to
destroy, thereby preventing it, at least, from doing any more harm. The
lesser right of abuse is plainly comprehended in the larger. And of that
which is so absolutely your own that you may, if you please, wantonly
waste or destroy it, you may, of course, transfer the ownership, thereby
conveying to another person all your rights in it, and rendering it as
unjust to interfere with the new owner's disposal of the property, as it
would previously have been to interfere with yours. Moreover, since the
gift is a purely voluntary act, you may, if you please, without
impairing its validity, arrange that it shall begin to take effect from
some future date instead of immediately; so that, by naming some date
subsequent to your own decease, you will be converting the gift into an
equally valid bequest. This, I submit, is decisive as to the iniquity of
any legal limitation of testamentary power. The right of bequest is
comprehended within and rests upon the same basis as the right of
possession, so that, unless it would be just to pass a law depriving all
persons of any property possessed by them in excess of a given amount,
it would not be just to deprive them by law of the power of bequeathing
the surplus.
The rights of inheritance obviously coincide precisely with those of
bequest. Just so much as the testator parts with the legatee obtains.
When the bequest is unconditional, the new owner whom it creates steps
into the precise position which the previous owner has vacated. Often,
however, a legacy is qualified by conditions, and, among others, by
this, that the property bequeathed shall be held in trust for certain
purposes. Now, if these purposes be socially noxious, society need not
hesitate to set aside the will that has provided for them. Quite
justifiably, society might annul the testamentary endowment of a
hospital for fleas and lice, such as Bishop Heber, in his Indian tour,
found existing at Baroach and at Surat, because those particular insect
pests could scarcely be retained within the walls of their infirmary.
Perhaps, too, society might be justified in similarly preventing the
endowment of a hospital for superannuated dogs and cats; whether it
would or not depending mainly on the awkward question whether such
inferior animals have any rights inconsistent with human interests. Be
this as it may, however, where human interests alone are concerned, the
rights of conditional heirship present no ethical difficulty. When it is
for purposes socially innocuous and affecting human beings alone that
property is left in trust, it cannot be equitably diverted from those
purposes without the consent of all the individuals whom the
testamentary arrangements were intended to affect. It matters not how
whimsical or preposterous the object enjoined may be; not even though it
be a periodical dinner, cooked after the manner of the ancients, like
the nauseous one at which Peregrine Pickle assisted; or instruction in
alchemy or in Hindoo astronomy, or in the art of walking on one's head.
Not until there remain no persons at once entitled under the will, and
also wishing to partake of the banquet or the instruction, can one or
the other be equitably discontinued? As long as there are any such
persons left, to stop, without their consent and without adequately
compensating them, arrangements, rights in which have been vested in
them by bequest, would be as palpable a violation of justice as to pick
their pockets of sums equivalent to their several interests, real or
supposed, in the arrangements.
If scrupulous adherence to the principle thus laid down would heavily
shackle the activity and seriously impair the immediate usefulness of
Mr. Forster and his coadjutors in the Endowed School Commission, I am
exceedingly sorry, but not in the least shaken in my conviction that the
principle ought to be rigidly adhered to. If parochial or other
communities are too stupid or too selfish to consent that school
endowments under their charge shall be applied to purposes of more
extensive utility than the founders contemplated, every effort should be
made to persuade or to shame them into consenting, but without their
consent the thing should on no account be done. On this point
Utilitarianism and Anti-utilitarianism would, I apprehend, give
identical counsel, the former condemning as impolitic what the latter
denounced as unjust. The cause of national education would be ill served
by any course calculated to discourage its future endowment by private
testators, and nothing would be more likely to have that effect than
arbitrary interference with the endowments of former testators.
The courteous reader may now be temporarily released, with fitting
acknowledgment of his exemplary patience. It would be cruel to detain
him with a recapitulation, without which he may readily trace for
himself, in what has gone before, the outlines of a consistent body of
anti-utilitarian ethics. In these there is little new, little that has
not been anticipated by many an old-fashioned saw and antiquated
apothegm--such as, _Fiat justitia ruat caelum_, 'Be just before you are
generous,' and, I would fain add, 'Honesty is the best policy'--save
that to that Utilitarianism may fairly lay equal claim. My modest
ambition throughout this essay has been to vindicate some of the most
momentous of primeval truths from the slights to which philosophy--not
modern, indeed, but modernised and refurbished--is continually
subjecting them, and I will not deny that I have modest assurance enough
to believe that I have at least partially succeeded. I think I have
shown that there are such things as abstract right and wrong, resting
not on fancied intuition, but on a solidly rational basis, and
supporting in turn abstract justice, whose guidance, whoever accepts it,
will find to be as sure and as adequate as any that unassisted reason is
capable of supplying. Anti-utilitarian justice never tries to look
half-a-dozen different ways at once, never points at the same time in
opposite directions, never issues contradictory mandates, never halts
between two opinions. Her votaries, like other mortals, may often be in
doubt as to accomplished facts; but, provided these be clear, their
course is in general equally clear; there seldom remains aught to
embarrass them. If they sincerely desire to ascertain what is due from
them, they can seldom err, except on the right side, and they will never
dream of disputing that whatever is due from them it must be their duty
to do, without respect of consequences. These they will leave to the
supreme controller of events, if they believe in one, and will leave to
take their chance, if they do not so believe, feeling all the more
certain in the latter case that to control events cannot, at any rate,
be within their power. They never stop to calculate how much good may
perhaps ensue if evil be done. Simple arithmetic, apart from faith,
satisfies them that to add wrong to wrong cannot possibly augment the
sum total of right. The prime article of their creed is the absolute
obligation of paying debts--a piece of unworldly wisdom more than ever
now to Jews a stumbling-block, and to Greeks foolishness, but not the
less to all, whether Jews or Gentiles, who will accept it, a light to
show through the mazes of life, a path so plainly marked that the
foolishest of wayfaring men cannot greatly err therein.
FOOTNOTES:
[1] The distinction here drawn is not merely verbal. The greatest
happiness of the greatest number may mean either the largest total of
happiness in which the largest possible number of those concerned can
participate, or a still larger total, which, if some of the possible
participants were excluded, would be divisible among the remainder. The
largest aggregate of happiness attainable by any or by all concerned,
means the largest sum total absolutely, without reference to the number
of participants. Writers on Utilitarianism seem to have sometimes the
first, sometimes the second of these totals in view, but more frequently
the second than the first.
[2] I do not form a separate class of pleasures of the affections,
because these seem to me not to be elementary, but to be always
compounded of two or more of the other five kinds.
[3] 'On Labour,' p. 135.
[4] 'Fortnightly Review,' June, 1868.
[5] See the No. for June, 1869.
[6] 'On Labour,' p. 93.
[7] 'Fortnightly Review' for June, 1869, p. 683.
[8] See 'Fortnightly Review' for June, 1869, pp. 687-8.
[9] 'Utilitarianism,' by J. S. Mill, pp. 64-8.
[10] 'Fortnightly Review' for June, 1869, pp. 684-5.
[11] 'Utilitarianism,' p. 267.
[12] 'Utilitarianism,' pp. 69, 70.
[13] 'Les legistes leur fournirent au besoin l'appui du droit contre le
droit meme.'--De Tocqueville, 'L'Ancien Regime,' p. 567.
[14] 'Utilitarianism,' pp. 72, 73.
[15] 'Utilitarianism,' p. 71.
[16] 'Utilitarianism,' pp. 81, 82.
[17] 'Utilitarianism,' pp. 84, 85.
[18] Ibid. p. 85.
[19] 'Utilitarianism,' pp. 86, 87.
[20] 'Utilitarianism,' p. 94.
[21] Ibid. pp. 94, 95.