JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE
SAFETY OF SOCIETY
The question stated at the close of the last chapter is most important
and, in a sense, is perhaps the crux of the whole matter. Not only may
error in the solution of the question injuriously affect the material
interests of individuals and hence of society as a whole, but it may
cause unhappiness far greater than that caused by any material loss,
viz., a sense of injustice. As said by the English judge, "Injustice
cuts to the bone."
At the outset I accept Herbert Spencer's theory that the idea of
justice contains two sentiments, positive and negative; the one the
sentiment of the individual that he has the right by nature to the
unimpeded use of his faculties and to the benefits he acquires by
such use; the other the consciousness that the presence of other
individuals with similar claims of rights necessitates some limitation
of his own claims. Out of those two sentiments is evolved, I think,
the idea of justice or injustice according as they are or are not in
equilibrium. They suggest the definition that justice is the
equilibrium between the full freedom of the individual and the
restrictions thereon necessary for the safety of society. The
restraint of personal conduct within too narrow limits, the necessity
of which cannot be made clear, excites resentment, stimulates angry
passions, and hence causes unhappiness through a sense of injustice.
Restraint within necessary limits only, the necessity of which can
be seen, arouses no resentment; on the contrary, it satisfies the
individual, favors harmonious cooperation, profits society and
increases the happiness of its members, through the appreciation of
that necessity.
But for the fixing of the boundary line between necessary and
unnecessary restraints upon personal conduct, some other matters still
are to be considered. I have said that man instinctively feels
resentment at interference with whatever he may think is his right to
do, or get, or keep. If this interference is from any of his fellow
men his resentment is greater than when it is from natural forces.
There arises the desire for vengeance, the desire to "get even,"--to
use a common phrase,--by inflicting a corresponding injury on the
offender. An eye for an eye, a tooth for a tooth, is instinctively
demanded now as of old. If unable to inflict a corresponding injury
there is the desire to inflict an equivalent injury. To paraphrase
Bacon, revenge is justice running wild.
This instinct should be heeded by society. If it be necessary for its
own preservation that society restrain this instinct, prohibit private
vengeance, then it must itself provide for satisfaction of the
instinct; the offender must be compelled to make full compensation or
else be made to suffer in turn some deprivation of rights claimed by
him that shall be commensurate with the offense. This should be done
speedily and gratuitously so far as possible. Delay and expense cause
resentment in the suitor for justice and so cause injustice. In doing
this, society not only protects itself but it restores an equilibrium
of rights disturbed by the offender. This restoration of equilibrium
is an essential element in the concept of justice. Of course, as
society progresses and human nature improves, this desire of the
injured for vengeance on the offender becomes weaker. The virtues
of mercy, forgiveness, or willingness to forego the demand for
punishment, come into play and society is allowed to attempt to reform
rather than to punish, or is allowed to pardon altogether. These
virtues, however, are not part of the concept of justice. If the
punishment seems inadequate, or the pardon seems undeserved, there
remains, or is again excited, the feeling of resentment. The
equilibrium is not restored.
Another sentiment or feeling is to be reckoned with in order to secure
this equilibrium in society. The young, untrained child is impatient
of all restraint. It is only by experience that he learns he must
submit to restraint if he would have any sort of association with his
fellows. He learns that he must submit to the rules of the game if he
would have a part in the game. As he comes to maturity he becomes
conscious that society must impose restraint upon him and hence feels
no resentment against all restraint, as does the untrained child. He
does, however, feel resentment if restraints are imposed upon him in
his pursuit of happiness which are not imposed upon others in their
pursuit. Similarly he feels resentment if exemptions from restraint
are allowed some others and not allowed him also. Furthermore, he is
quick to note any discrimination against himself and prone to imagine
it when in fact there is none.
Almost as soon as the average child is placed with others under a
common authority, as in a public school, he begins to complain of the
teacher's partiality to other pupils. He will stay in no game where
the rules operate unequally against him. He insists on an even chance
with his fellow players. When later in life he engages in business he
resents any favoritism shown by the government of his state or town to
others in the same or a similar business. This feeling is especially
noticeable in the matter of taxation. If one believes the taxes
imposed by the government are unnecessarily heavy he may feel some
resentment, but his resentment is much greater if he believes he is
overtaxed in comparison with his fellows, that they are escaping
their proportionate share of the burden, or that taxes are imposed
on his products in order to favor the products of others, as when
oleomargarine was taxed to handicap it in its competition with butter.
This feeling of resentment at inequality of restraints and burdens
imposed and exemptions granted is not ignoble, is not a feeling to be
suppressed or even concealed. It is far different from the feeling of
envy. If I can only afford to ride in a trolley car I may envy the man
who can afford to ride in a luxurious motor car and yet not feel
wronged. But if I am excluded from a public street car to which he is
admitted I have a different feeling, that of resentment. I may be
perfectly willing that all others, rich or poor, shall use the streets
to the full extent that I do, but if it be proposed that my use shall
be limited in order that some others may for their private purposes
have more than an equal use with me, my feeling is not one of envy
but of indignation. So I can appreciate that if I wilfully or through
carelessness injure another I should make full compensation, and hence
can cheerfully submit to the law compelling me to do so; but if the
law undertakes to exempt any other person from a similar liability,
I feel a keen sense of wrong. Conversely, the most strict
disciplinarian, the martinet even, if otherwise competent receives
ready obedience and respect if it is seen that he treats alike,
according to their merits, all subject to his authority. This feeling
is natural. Nature is impartial in the application of its laws. It
allows no exemption. Its fires burn the weak as well as the strong,
the child as well as the man, the poor as well as the rich. One star
differs from another star in glory, but no one of all the millions of
stars is exempt from any of the laws set by nature for stars.
This feeling of right to impartiality of treatment had some faint
expression in the Massachusetts "Body of Liberties" of 1641, in which
it was declared that the liberties, etc., therein enumerated should
be enjoyed "impartially" by all persons within the jurisdiction of
the colony. It was more distinctly recognized in the Connecticut
Declaration of 1818 and a part of the Connecticut Bill of Rights
today, "That all men when they form a social compact are equal in
rights and that no man or set of men are entitled to exclusive public
emoluments or privileges from the community." Again it appears in the
federal and some state constitutions in the provision against the
granting of titles of nobility. It seems to be at least impliedly
recognized in the XIVth amendment to the United States Constitution
in the clause that no state "shall deny any person within its
jurisdiction the equal protection of the laws," since "the equal
protection of the laws" necessarily implies protection against unequal
laws, laws favoring some at the expense of others or of the whole. If
the state favors one more than another it does deny that other equal
protection. I do not subscribe to the doctrine that "the greatest good
of the greatest number" is to be sought. The only legitimate search is
for the good of the whole number without discrimination for or against
any one. This sentiment found expression in the once popular slogan,
"Equal rights for all. Special privileges for none." I say once
popular, for today it would seem not popular in practice. True,
special privileges are still loudly denounced, but under the name of
special exemptions, they are still demanded by those who denounce
them most loudly.
It is not inequality of natural powers of body or mind, nor inequality
in natural conditions, that excites this feeling of resentment I have
noted. The man of feeble natural powers may envy him of strong natural
powers, but he can see that society, that law, is not responsible for
that inequality. If one finds himself from lack of natural ability or
adaptiveness unable to accomplish what others of superior ability or
adaptiveness easily accomplish, and hence he fails to receive the
prize they so easily win, he may feel great disappointment and regret,
but if honest with himself will not attribute his failure to the
injustice of society.
It is not essential to the preservation of society and the race that
such inequalities should be removed, that all men should be reduced
to a dead level of capacity, that human nature should be ignored.
It is strongly felt, however, that society should not itself create
artificial inequalities, should not allow one man or set of men a
liberty it will not allow to others, should not impose burdens on one
man or set of men to be borne by them alone while others are exempt;
or if it does undertake to do so it should be able to demonstrate that
such artificial inequality is necessary for the safety of all. The
intensity of this feeling against artificial inequalities is so great
that men sometimes prefer equality before the law even to liberty.
When the British ambassador said to Madam De Stael that Frenchmen had
no more liberty after the Revolution than before, she answered that
they had acquired equality before the law and they preferred that to
more liberty. This sentiment was tersely and well expressed in the
French Declaration of Rights of 1795. "Equality consists in this, that
the law is the same for all whether it protects or punishes."
Of course, no assertion of rights can be carried to the extent of the
dictum, "Fiat Justitia ruat Respublica," for if the state fall, all
hopes of justice fall with it. When the alternative is the conquest
of the particular society by invasion or its disorganization by
rebellion or rioting or otherwise, some of its members must submit to
the sacrifice of some or all of their rights. Nature will sacrifice
individuals for the preservation of the race. Society must sometimes
do the same. "Inter arma silent leges." But such times are exceptional
and not within the scope of our inquiry.
To sum up the matter, justice is the according to every one his right,
and that right is such freedom of action in gratifying one's desires
as can be exercised in harmony with like freedom by others. In other
words, it is equal freedom, equal restraint. It is order and harmony.
Plato and Aristotle were right in teaching that order is an essential
element of justice.
But who is to determine the matter? Who is to determine what degree of
restraint or liberty is necessary to secure this order and harmony,
this justice? Obviously it is society, or rather, individuals acting
as a whole through society and not each individual acting for himself,
that must determine such questions. Society has the responsibility. If
it imposes too many restraints or imposes them unequally it excites,
as said before, resentment and antagonism, sometimes to the extent of
resistance. If it imposes no more restraints than are necessary and
imposes them equally, order and harmony are secured. And when we have
this equal freedom with equal and only necessary restraints we have
order and harmony,--in other words, justice. Indeed, to repeat,
justice in some of its aspects may be considered as the desired
equilibrium between the needs of society and the interests of its
individual members.
I have left out of the account various virtues,--pity, sympathy,
philanthropy, generosity and the like. Though these make social life
more agreeable and contribute much to the sum of human happiness, they
are not essential to the existence of the race or society. Society as
an organization is not held together by these virtues, though many of
its weaker members might suffer and perish if they were non-existent.
Allow men as much freedom of thought and action as can be exercised
without interference with like freedom of others, but restrain them
from exercising any greater freedom, and they can and will live
together in society though they may be wholly selfish in feeling and
conduct. What is called the golden rule, that we should do to others
as we would have them do to us, is a precept of philanthropy, of
charity, not of justice. The rule enunciated by Confucius five hundred
years before Christ, the rule that we should not do to others what we
would not have them do to us, is sufficient for the existence of
society. The French Convention of 1793 stated the proposition in these
words: "Liberty is the power that belongs to man to do whatever is not
injurious to the rights of others; it has nature for its principle,
justice for its rule, law for its defense: its normal limit is the
maxim, Do not to another that which you do not wish to be done to
you."
This order and harmony, however, are not easily secured. Not only are
there honest differences of opinion as to what restraints are
necessary and how and on whom they should be imposed, but society is
divided into groups or classes with interests conflicting, or thought
to be conflicting, and each seeking to impose restraints on others
while retaining freedom for themselves. While professing to demand
more liberty and equality, they are often really insisting on greater
restraint and inequality. The successful insistence of the
trades-unions of England in securing from Parliament a statute
exempting their funds from answering in damages for injuries caused by
them is a conspicuous instance. Another and equally glaring example is
the effort in this country to exempt from the law against combinations
in restraint of trade, combinations to increase the cost of living by
increasing the prices of agricultural products and the prices to be
paid for labor. The effort seems to be to compel men to compete in the
use of their savings no matter how wasteful the competition, and to
forbid men competing in the use of their labor, no matter what the
idleness thereby caused. I think it a truism that whoever seeks to be
exempted from the restrictions or liabilities he would impose on
others, seeks not justice, but to do injustice.
Another hindrance arises out of the very virtues of pity and sympathy.
These impel many to endeavor, not to persuade, but to compel the more
efficient and prudent who have by their farsightedness, courage,
industry and thrift made good provision for themselves and their
offspring, to provide also for the inefficient and the improvident. To
be asked to give to these does not offend any sense of right, but if
one be told he must give he feels resentful at once. He feels he has a
right to decide for himself to whom and to what extent he shall give
of his savings. Society did not come into existence nor does it now
exist to correct the inequalities of nature, the inequalities of
natural powers, nor to prevent the efficient and prudent receiving and
enjoying the results of their efficiency and prudence. Nature itself
makes no such effort. It rather tends to eliminate the less efficient
and preserve the more efficient. Even if society may strive to
preserve the inefficient and improvident, should it do so by hampering
and restraining those wiser and more capable? We must expect nature to
deal with society, with states and nations, as it does with
individuals. If a state by its laws discourages the exercise to its
full extent of the efficiency of the few and renders less severe the
penalties for the inefficiency and imprudence of the many, it cannot
long maintain any advantageous position among other nations. Whatever
the precepts of religion, of philanthropy, or of other virtues may
require, the precepts of justice do not require society to support men
in idleness nor even to furnish them with employment. Neither do the
precepts of justice require the state to furnish opportunities, nor
even to establish equality of opportunity, but only equality of right
to take advantage of opportunity. It is a saying, but not a fact, that
opportunity knocks once at every man's door. Nature does not bring
opportunities, much less equal opportunities, to men's doors. It
requires men to go out and search for opportunities, or at least to be
on the watch for them, as it requires men to search or watch for other
things they desire; and he of the quickest perception and most
farsighted will soonest see them, and when seen he does not feel any
obligation to share them with others less vigilant or even less
fortunate. Society does not support its members, they support it and
must support it and themselves by their own exertions, find their own
place, find employment for themselves, so far as the precepts of
justice are concerned.
However prevalent the sentiment that more than equality of right to
use his opportunities is due to any one, it is not an instinctive
sentiment. The contrary is the fact. Unless we are dominated by some
other sentiment than justice, we instinctively yield assent to
Aristotle's proposition that the prize flute should be awarded to the
best flute player whether opulent or indigent, literate or illiterate,
citizen or slave. A group of small children exploring the fields and
woods for wild flowers will concede to each what flowers he finds
whether by his better eyes or better luck. So with groups of small
boys fishing in the streams and brooks. In games of cards for stakes,
the players do not expect to hold cards of equal value and they
concede the stakes to the winner, whether won by his greater skill or
superior cards.
Also there is an instinctive sentiment that the evil results of one's
own conduct should be borne by him alone. If one suffers loss through
his own misjudgment, incapacity, or want of care, then, whatever the
precepts of other virtues may require, we do not feel that justice
requires us to bear any part of that loss. On the contrary, we feel
instinctively that he should bear the loss alone, that it is the
natural penalty for his lack of judgment, capacity, or care. If my
neighbor neglects to insure his house and loses it by fire, I see no
reason why he should not bear the loss alone.
In this connection, perhaps I should not omit to notice references
often made to the rights of labor, the rights of capital, property
rights, and personal rights, as if they were different in their nature
and importance. I do not as yet see such difference. All rights are
personal rights, and the right of each to control his labor, his
savings, his person, and his property is the same. I am not yet
convinced that the right of the laborer to make use of his labor is
superior to that of the capitalist to make use of his capital; that,
whatever his greater need, the right of one without property is
superior to that of one who has property; that the right to get is
superior to the right to save. It is also loudly proclaimed that
"property rights" are of little importance compared with "human
rights," unmindful of the truth that the right "of acquiring,
possessing and defending property" is, as much as any other, a human
right and, as such, necessary to be maintained if the race is to rise
above its primitive condition of poverty. However, I do not see that
the differences, if any, affect the general question of individual
rights.
The conclusion I arrive at is this: Society, and with it the race,
cannot survive unless it restrains to some extent individual freedom
of action, nor can any particular society long survive if it carry
that restraint too far. It should, therefore, ascertain and maintain
the line, the equilibrium, between necessary freedom and necessary
restraint. It is only by such action of society that justice can be
established and the welfare of the race be advanced. This brings us to
the question of how and by what instrumentalities society can best
perform this momentous task, the securing of justice. This will be
considered in the next chapter.